HomeMy WebLinkAboutAgenda Report - September 2, 2009 E-07AGENDA ITEM FM407
CITY OF LODI
COUNCIL COMMUNICATION
AGENDA TITLE: Adopt Resolution Authorizing the City Managerto Execute an Agreement to
Withdraw Lodi from the Western GeoPower Inc. Renewable Energy Power
Purchase Agreement (EUD)
MEETING DATE: September 2,2009
PREPARED BY: Interim Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Managerto execute an
Amended and Restated Third Phase Agreement' (3PA) with the
Northern California PowerAgency (NCPA) to withdraw Lodi from
the Western GeoPower Incorporated (WGI) Renewable Energy
Power Purchase Agreement (PPA).
BACKGROUND INFORMATION: On February 20, 2008, the City Council authorized execution of a
3PA with NCPA, under which members would shareNCPA's costs
and energy output of a geothermal power plant to be developed by
WGI, with the energy output sold to NCPA at $98 per megawatt hour. The energy was to be delivered for
20 years, beginning in April 2010. The energy would be an Eligible Renewable Resource in the Lodi
Electric Utility Renewable Portfolio Standard Program and would provide environmental attributes
associated with reductions of Greenhouse Gases and other emissions. Lodi had subscribed to 7.02
percent of the 25 to 33 megawatts of output and associated costs, approximately 2 MW.
Reevaluation of WG I's geothermal steam supply has caused the plant size to be limited to 25 MW,
resulting in a reduction of WGI's projected revenue stream. The reduced revenue is compounded by the
tightening of the financial markets. WGI advised NCPA that WGI is unable to secure financing unless the
energy sale price is raised to $117/MWh. That equates to a 1.9-cent/kWh increase in the wholesale
power cost to 11.7 cents per kWh.
The new terms are unattractive for Lodi. The execution of the Amended and Restated 3PA will
contractually remove Lodi from a participant in the power purchase agreement. The NCPA Commission
on July 23, 2009 authorized execution of an Amended and Restated PPA with WGI reflecting the higher
cost and revised participation shares. Some NCPA members are not willing to pay the higher price.
Others are willing to increase their shares to keep the projectfully subscribed.
The Lodi Risk Oversight Committee concurred with this recommendation at its meeting of August 12,
2009.
Attached is a copy of the proposed Amended and Restated 3PA between NCPA and members. This
agreement may be subject to further non -substantive changes prior to its execution.
NCPA refers to agreements with members that allocate project shares and provide NCPA with assurance of
payment for costs incurred during operation of a plant or contract as a "Third Phase Agreement'.
APPROVED:
Blair City Manager
Adopt ResolutionAuthorizing the City Manager to Execute an Agreement to Withdraw Lodi from the Western GeoPower Inc.
Renewable Energy Power Purchase Agreement (EUD)
September 2, 2009
Page 2 of 2
FISCAL IMPACT: Reduced purchases of above -market -cost energy.
i
enneth A. Weisel
Interim Electric Utility Director
PREPARED BY: Ken Weisel, Interim Electric Utility Director
KAWAst
DRAFT AMENDED AND RESTATED 3rd PHASE AGREEMENT
AMENDED AND RESTATED
THIRD PHASE AGREEMENT
FOR
WESTERN GEOPOWER INCORPORATED
RENEWABLE ENERGY POWER PURCHASE AGREEMENT
12796037'3
8/13/2009 4 2 2 PM
12793060
DRAFT AMENDED AND RESTATED 3rd PHASE AGREEMENT
8/13/2009 4:22 PM
12793060
TABLE OF CONTENTS
Section........................................................................................... .
RECITALS............................................................................ 3
1. Definitions.......................................................................4
2. Effectiveness of Agreement...................................................10
3. Delivery of Electricity / Allocation of Resource Adequacy ..............
Capacity and Environmental Attributes...................................10
4. Cooperation and Further Assurances......................................11
5. Payment Obligations, Security Account, Invoicing.
6. Administration of Agreement................................................16
7. Transfer of Rights by Participants...........................................17
8. Withdrawal of Participants ........................ . . . ...................18
9. Term and Termination.........................................................18
10. Default and Remedies..........................................................19
11. Miscellaneous..................................................................23
EXHIBIT A RENEWABLE ENERGY POWER PURCHASE AGREEMENT
between NORTHERN CALIFORNIA POWER AGENCY and
WESTERN GEOPOWER INCORPORATED
EXHIBIT B PARTICIPATION PERCENTAGES
EXHIBIT C FRAMEWORK AND COST ALLOCATION METHODOLOGY
FOR SCHEDULE COORDINATION, DISPATCH AND
SETTLEMENT SERVICES
i
1279603V2
This Amended and Restated Third Phase Agreement for Western GeoPower Incorporated
Renewable Energy Power Purchase Agreement (the "Agreement")is between the Northern
California Power Agency, ajoint powers agency of the State of California ("NCPA")and those of
its Members who execute this Agreement ("Participants"). NCPA and the Participants are
referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. WHEREAS, NCPA and the Participants are interested in purchasing additional
renewable electric capacity and energy for the benefit of the Participants' customers:
B. WHEREAS, the Participants desire that NCPA negotiate and enter into a renewable
energy power purchase agreement (PPA) with Western GeoPower Incorporated ("Western
GeoPower")for twenty (20) years; and
C. WHEREAS, on , NCPA and Western GeoPower entered into an Amended and
Restated Renewable Energy Power Purchase Agreement;
D. WHEREAS, on May 16,2008, NCPA has executed a PPA with Western GeoPower to
purchase the entire expected Project Output from a new Western GeoPower geothermal project
("Project")located in the Geysers Geothermal Field located in Mayacamas Mountains of Sonoma
and Lake Counties in the State of California; and
E. WHEREAS, on or about May 6,2008, NCPA and the Participants executed the Third
Phase Agreement for Western Geopower Incorporated Renewable Energy Power Purchase
Agreement; and
F. WHEREAS, NCPA, on behalf of the Participants, will purchase the Project output at
a fixed price not to exceed one -hundred -seventeen dollars ($117.00) per megawatt hour for
capacity up to 25 MW, and for additional capacity in excess of 25 MW, NCPA will purchase Project
output at a fixed price not to exceed ninety-eight dollars ($98.00) per megawatt hour for the term of
twenty (20) years pursuant to the Amended and Restated Renewable Energy Power Purchase
Agreement; ; and
G. WHEREAS, as a result of the price adjustment, several Participants, identified
herein, specifically as the Cities of Alameda, Lodi, and Roseville, the Truckee -Donner Public Utility
District, and the San Francisco Bay Area Rapid Transit District ('BART") ("Withdrawing
Participants") wish to withdraw from the Agreement, however, the terms of this Agreement prior
to this amendment and restatement do not allow for withdrawal by any Participant; and
H. WHEREAS, the Participants desire to enter into this Agreement to allow a one-time
withdrawal by the Withdrawing Participants without future liability to NCPA and to the
remaining Participants; and
I. WHEREAS, NCPA and the Participants wish to enter into this Agreement to
provide all means necessary for NCPA to fulfill obligations incurred on behalf of NCPA and the
Participants pursuant to the PPA and to enable and obligate the Participants to take delivery of
and pay for such electricity and to pay NCPA for the costs of undertaking the foregoing activities;
and
J. WHEREAS, NCPA and its members have (or will have) entered into the Facilities
Agreement, dated September 22, 1993, which provides for services which NCPA shall perform for
its members, and for the provisions to be contained in third phase agreements such as this
Agreement.
K. WHEREAS, NCPA and its members have (or will have) entered into the Scheduling
Coordination Program Agreement ("SCPA), dated August 28, 2002, which provides for CAISO
scheduling services and cost allocations which NCPA shall perform for its members.
L. WHEREAS, the City of Healdsburg is not currently a project Participant to the Third
Phase Agreement executed on (date), but now wishes to participate in this Project and
desires to be bound to this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and the mutual promises and
covenants hereinafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree and intend to be legally bound, as
follows:
Section 1. Definitions.
1.1 Definitions. Whenever used in this Agreement (including the Recitals
hereto), the following terms shall have the following respective meanings:
1.1.1 "Agreement" means this Amended and Restated Third Phase
Agreement for Western GeoPower Incorporated Renewable Energy Power Purchase Agreement,
including all Exhibits attached hereto, as the same may be amended from time to time in
accordance with the terms and conditions hereof.
1.1.2 "Annual Budget" means the budget for the ensuing Budget Year
adopted by the Commission, as it may be amended from time to time.
1.1.3 "Associate Member" means an associate member cf NCPA
admitted to NCPA in accordance with Article IV, Section 7 of the Joint Powers Agreement.
1.1.4 "Budget Year" means the NCPA fiscal year; currently the twelve
month period beginning July 1 and ending on the next following June 30.
1.1.5 "Business Day" means any day except a Saturday, Sunday, or a
Federal Reserve Bank holiday. A Business Day shall open at 5:00 a.m. and close at 5:00 p.m. local
time.
1.1.6 "CapacityAttributes" means any current or future defined
characteristic, certificate, tag, credit, or ancillary service attribute, whether general in nature or
specific as to the location or any other attribute of the Project, intended to value any aspect cf the
capacity of the Project to produce Energy or ancillary services, including, but not limited to, any
accounting construct so that the full capacity of the Project may be counted toward a resource
adequacy requirement or any other measure by the CPUC, the CAISO, the FERC, or any other
entity invested with the authority under federal or state law, to require buyer [defined term?]to
procure, or to procure at buyer's expense, Resource Adequacy [lower case or a defined term?]or
other such products.
1.1.7 "Claims" has the meaning set forth in Section 11.2.
1.1.8 "Commission"means the NCPA Commission.
1.1.9 Not Applicable under this Agreement.
1.1.10 "Constitutive Documents" means, with respect to NCPA, the Joint
Powers Agreement and any resolutions or bylaws adopted thereunder, and with respect to each
Participant, the California Government Code and Public Utilities Code, and other statutory
provisions applicable to such Participant, any applicable agreements, charters, contracts or other
documents concerning the formation, operation or decision making cf such Participant, including,
if applicable, its City Charter, and any codes, ordinances, bylaws, and resolutions adopted by such
Participant's governing body.
Agreement.
1.1.11 "Defaulting Party" has the meaning set forth in Section 10.1.
1.1.12 "Effective Date" has the meaning set forth in the Section 9 cf this
1.1.13 "Electric System" means, with respect to each Participant except
BART, all properties and assets, real and personal, tangible and intangible, cf the Participant now
or hereafter existing, used or pertaining to the generation, transmission, transformation,
distribution or sale cf electric capacity and energy, or the utilization cf such, including all
additions, extensions, expansions, improvements and betterments thereto and equipment thereof,
provided, however, that to the extent the Participant is not the sole owner cf an asset or property
or to the extent that an asset or property is used in part for the above described purposes, only the
Participant's ownership interest in such asset or property or only the part cf the asset or property
used for electric purposes shall be considered to be part cf its Electric System.
1.1.14 "Energy" means the electricity generated by the Generating
Facility pursuant to this Agreement, as expressed in units cf KWh or MWh as measured at
the meter(s), as that term is defined the PPA.
1.1.15 "Environmental Attributes" means any and all credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, directly attributable to the
power purchase. Environmental Attributes include, but are not limited to: (1) any avoided
emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx),
carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2),
methane (CH4) and other greenhouse gases (GHGs) that have been determined by the United
Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat
of altering the Earth's climate by trapping heat in the atmosphere; and (3) the reporting rights to
these avoided emissions such as Green Tag Reporting Rights. Environmental Attributes do not
include: (I) any energy, capacity, reliability or other power attributes; (2) production tax credits
associated with the construction or operation of the energy Projects and other financial incentives
in the form of credits, reductions, or allowances associated with the Project that are applicable to a
state or federal income taxation obligation: (3) fuel -related subsidies or "tipping fees" that may be
paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction
of particular pre-existing pollutants or the promotion of local environmental benefits; or (4)
emission reduction credits encumbered or used by the Unit(s) for compliance with local, state, or
federal operating and/or air quality permits.
Section 10.1.
1.1.16 "Event of Default" has the meaning set forth in Section 5.5.3 and
11.17 "Generating Facility" means Western GeoPowers, Inc.'s electricity
generating facility as more particularly described in Exhibit 2 [Description of Generating Facility]
of the PPA, together with all materials, equipment systems, structures, features and improvements
necessary to produce electricity at such facility, excluding the site, land rights and interests in land.
1.1.18 "Joint Powers Agreement" means that certain Northern California
Power Agency Joint Power Agreement first made July 19, 1968 and revised as of April 1, 1973,
establishing NCPA, as the same may be amended from time to time.
1.1.19 "Member" means any Member of NCPA or Associate Member of
NCPA.
1. 1.20 "MW" means megawatt.
1. 1.21 "MWh" means megawatt hour.
1.1.22 "NCPA" has the meaning set forth in the preamble hereto.
1.1.23 "Participation Percentage." has the meaning, with respect to each
Project Participant, the percentage cf the total capacity cf the Project, and the energy associated
with such capacity, to which such Participant is entitled pursuant to the terms cf this Agreement.
The Project Participation Percentage for each Project participant shall be in the percentage set forth
in Exhibit B, attached hereto and incorporated herein. Exhibit A shall be amended from time to
time in accordance with this Agreement.
1.1.24 "Project" refers to the Western Geopower project to develop,
finance, operate and maintain the Generating Facility which is the subject of the PPA.
1.1.25 "Project Cost Allocation" means the Project Costs allocated to the
Participants in the Annual Budget.
1.1.26 "Project Costs" means any and all costs, directly or indirectly,
incurred by NCPA as a result of entering into the PPA. NCPA costs include, but are not limited to
related legal fees and associated staff time, administrative and general overhead costs, charges for
transmission, transmission related costs and costs associated with the PPA or other NCPA
associated Agreements, including the Facilities Agreement and the SCPA or a successor
agreement.
1.1.27 "Project Output" means all energy generated pursuant to the PPA
from the geothermal Project currently being developed by Western GeoPower in conjunction with
this Project, related Environmental Attributes and Capacity Attributes;
1.1.28 "Participant" has the meaning set forth in the preamble hereto.
(i) "Party" or "Parties" has the meaning set forth in the preamble
hereto; provided that "Third Parties" are entities that are not party to this Agreement.
1. 1.29 "PPA" means the Amended and Restated Renewable Energy
Power Purchase Agreement between NCPA and Western GeoPower, Inc., dated , attached
hereto as Exhibit A.
1.1.30 "Resource Adequacy Capacity" is that capacity in megawatts that
has been approved by each Participant, as capacity available to ensure that adequate resources are
available to meet peak demand and operating and planning reserves for the purposes cf local area
and system reliability.
1.1.31 "Revenues" means, with respect to each Participant with the
exception of BART, all income, rents, rates, fees, charges, and other moneys derived by the
Participant from the ownership or operation of its Electric System, including, without limiting the
generality cf the foregoing, (a) all income, rents, rates, fees, charges or other moneys derived from
the sale, furnishing and supplying cf electric capacity and energy and other services, facilities, and
commodities sold, furnished, or supplied through the facilities cf its Electric System, (b) the
earnings on and income derived from the investment cf such income, rents, rates, fees, charges or
other moneys to the extent that the use cf such earnings and income is limited by or pursuant to
law to its Electric System, and (c) the proceeds derived by the Participant, directly or indirectly,
from the sale, lease or other disposition of all or a part of the Electric System; but the term
"Revenues" shall not include (i) customers' deposits or any other deposits subject to refund until
such deposits have become the property cf the Participant or (ii) contributions from customers for
the payment of costs of construction cf facilities to serve them. In regards to BART, "Revenues"
means, all income, rents, rates, fees, charges, grants, fares or tariffs, subventions and other moneys
derived by the Participant from its operation, including, without limiting the generality of the
foregoing, (x) the earnings on and income derived from the investment CC such income, rents,
rates, fees, charges grants, fares or tariffs, subventions or other moneys and (y) the proceeds
derived by the Participant, directly or indirectly, from the sale, lease or other disposition of all or a
part cf its assets; but the term "Revenues" shall not include any moneys derived from sources, the
use cf which is limited by law to expenditures other than operating expenses.
1.1.32 "Scheduling Protocols" means the applicable provisions of the
SCPA, or successor document and any other contractual or other arrangements between NCPA
and the relevant Participant concerning the scheduling, delivery and metering cC the PPA.
1.1.33 "Security Account" means the account established by NCPA and
funded by the Participants in accordance with Section 5.3, the funds of which are available for use
by NCPA in accordance with the terms and conditions hereof.
M
1.1.34 "Term" has the meaning set forth in Section 9.
1.1.35 "Withdrawing Participants" has the meaning set forth in the Recital
1.2 Rules of Interpretation. As used in this Agreement (including the Recitals
hereto), unless in any such case the context requires otherwise: the terms "herein," "hereto,"
"herewith and "hereof' are references to this Agreement taken as a whole and not to any
particular provision; the term "include," "includes" or "including" shall mean "including, for
example and without limitation;" and references to a "Section," "subsection," "clause," or
"Exhibit" shall mean a Section, subsection, clause or Exhibit cC this Agreement, as the case may be.
All references to a given agreement, instrument or other document shall be a reference to that
agreement, instrument or other document as modified, amended, supplemented and restated
through the date as cC which such reference is made, and reference to a law, regulation or
ordinance includes any amendment or modification thereof. A reference to a "person" includes
any individual, partnership, firm, company, corporation, joint venture, trust, association,
organization or other entity, in each case whether or not having a separate legal personality and
includes its successors and permitted assigns. The singular shall include the plural and the
masculine shall include the feminine, and vice versa.
Section 2. Effectiveness of Agreement. This Agreement shall be effective as to each
Participant as cC the Effective Date upon execution by the Participant, as described in Section 9
below.
Section 3. Delivery of Electricity / Allocation of Resource Adequacy Capacity and
Environmental Attributes. By executing this Agreement, each Participant acknowledges and
agrees to be bound by the take -or -pay process contained in or referenced herein. Any electricity
delivered to NCPA under the PPA shall be delivered to each Participant in proportion to such
Participant's Participation Percentage and each Participant shall accept and pay for its relevant
percentage cf such electricity, To the extent Participant is unable to accept such deliveries in full,
NCPA shall dispose cf such surplus in its discretion, in such a manner to maximize Participant
value. Notwithstanding the above, NCPA may allocate capacity and energy procured through the
PPA among the Participants in such percentages as NCPA may, in its reasonable discretion,
determine are necessary, desirable, or appropriate, in order to accommodate Participant Transfer
Rights pursuant to Section 7, herein. Such electricity shall be scheduled for the Participants in
accordance with the Scheduling Protocols with costs CC scheduling, dispatch and settlement
allocated in accordance with the framework described in Exhibit C, which attached hereto and
incorporated as though fully set forth herein. Resource Adequacy Capacity and Environmental
Attributes obtained by NCPA as a result cf performance under this Agreement shall likewise be
allocated to each Participant by its Participation Percentage.
3.1 Pavments to Counterparty. NCPA shall pay all costs incurred hereunder
using operating funds or Security Account funds, paid to NCPA in accordance with Section 5, or
such other sources as may be agreed upon in writing by the Parties from time to time.
Section 4. Cooperation and Further Assurances. Each cf the Parties agrees to provide such
information, execute and deliver any instruments and documents and to take such other actions as
may be necessary or reasonably requested by any other Party which are not inconsistent with the
provisions cf this Agreement and which do not involve the assumption of obligations other than
those provided for in this Agreement, in order to give full effect to this Agreement and to carry out
the intent of this Agreement.
Section 5. Payment Obligations, Security Account, Invoicing.
5.1 Participant Payment Obligations. Each Participant agrees to pay to NCPA
each month its respective portion cf the Project Costs. In addition, each Participant shall maintain
working capital in accordance with NCPA's Annual Budget, and maintain its Security Account as
provided in this Agreement.
5.2 Calculation cf and True -Up for Proiect Costs. Upon the conclusion of a
Budget Year, NCPA shall compare each Participant's payment cf estimated Project Costs with the
actual Project Costs incurred on behalf cf each Participant such that overpayments will be credited
to, and underpayments will debited to, the Participant's account in accordance with NCPA's
Annual Budget settlements.
5.3 Security Account.
5.3.1 Initial Amounts. NCPA shall notify each Participant three (3)
months prior to the expected initial delivery of power of the initial security amounts which
Participant shall be obligated to pay for under this Agreement, Each Participant shall ensure that
sufficient funds are on deposit in the Security Account equal to the highest (3) months of the
immediately following (12) months cf estimated Project Costs ; provided, however, that such
deposit may be satisfied, in whole or in part, either in cash, by posting an irrevocable standby letter
of credit or furnishing any other negotiable instrument satisfactory to NCPA's General Manager,
exercising his or her reasonable discretion.
5.3.2 Subseauent Deposits. Periodically, and at least quarterly, NCPA
shall review and revise its estimate cf all costs for which Participant shall be obligated to pay for
under this Agreement for the succeeding twelve (12) months. Following such review, NCPA shall
determine whether each Participant has a sufficient balance in the Security Account. To the extent
that any Participant's balance in the Security Account is greater than one hundred and ten percent
(110%) of the amount required herein, NCPA shall credit such amount as soon as practicable to the
Participant's next following invoice. To the extent that any Participant's balance in the Security
Account is less than ninety percent (90%) cf the amount required herein, NCPA shall add such
amount as soon as practicable to such Participant's next invoice. Credits or additions shall not be
made to Participants who satisfy these Security Account requirements in whole, through the use of
a letter cf credit, provided that the amount cf the letter of credit shall be adjusted in a like manner
to assure an amount equal to the highest three (3)months cf estimated Project Costs.
5.3.3 Use of Security Account Funds. NCPA may use any and all funds
deposited into the Security Account to pay any costs it incurs hereunder, including making
payments to the counterparty under the PPA. NCPA may use any and all funds without regard to
any individual Participant's balance in the Security Account or proportionate share of Project Costs
and irrespective of whether NCPA has issued an invoice for such costs to the Participants or
whether a Participant has made timely payments of invoices. Should Participant have satisfied its
Security Account requirements, in whole or in part, by posting a letter of credit, NCPA may draw
on such letter of credit to satisfy Participant's obligations hereunder.
5.3.4 Emerv:ency Additions. In the event that the funds are withdrawn
pursuant to section 5.3.3, or if the Security Account is insufficient to allow payment of an invoice,
demand, request for further assurances by Third Parties, or Claims, NCPA shall notify all
Participants and then prepare and send a special or emergency assessment to the Participants.
Each Participant shall pay to NCPA such assessment when and if assessed by NCPA within two
(2) Business Days of the invoice date of the assessment or consent to and direct NCPA to draw on
any existing letter of credit Participant has established for such purposes.
5.3.5 Accounting and Interest. NCPA shall maintain a detailed
accounting of each Participant's deposits into and shares of withdrawals from the Security
Account. Interest earned on the Security Account shall be proportionately credited to the
Participants in accordance with their Security Account balances. Any losses in the Security
Account caused by early termination of investments shall be allocated among the Participants in
accordance with their proportionate Participation Percentages.
5.3.6 Return cf Funds. On the termination cf this Agreement with
respect to a Participant in accordance with this Agreement, the affected Participant or Participants
may apply to NCPA for the return of their share of Security Account funds ninety (90) days after
the effective date of such termination or withdrawal. NCPA shall, in its sole discretion, as
determined by the General Manager, estimate the then outstanding liabilities cf the Participant(s),
including any estimated contingent liabilities and shall retain all such funds until all such liabilities
have been fully paid or otherwise satisfied in full. The balance of the Participant's share cf the
Security Account will be refunded to the Participant.
5.4 InvoicinEz.
5.4.1 Invoices. As part cf NCPA's regular, monthly, advance billing or
by separate special invoice, as required in the circumstances, NCPA will issue an invoice to each
Participant for its proportionate share cf the Project Costs due (or any adjustments thereto) based
on Sections 5.1 and 5.2 above. Such invoices may include estimated costs and estimated settlement
and meter data. Each invoice shall include: (i) the total Project Costs attributable to the activities
under this Agreement for such month and the relevant Participant's share thereof, (ii) the quantity
cf electricity, Resource Adequacy Capacity and Environmental Attributes. delivered to such
Participant (or an estimate thereof) and the unit price for such electricity; (iii) appropriate
settlement and meter data (or an estimate thereof); (iv) including any adjustments to prior invoices
required based on actual data received that was estimated in a previous invoice. In addition NCPA
may invoice an amount, if any, that NCPA has paid or reasonably expects to pay using funds
available in the Security Account; and amounts due from (or credited to) such Participant under
Section 5.3.2.
5.4.2 Payment cf Invoices. All invoices delivered by NCPA hereunder
are due and payable on the date indicated on such invoice, provided, however, that any amount
due on a day other than a Business Day may be paid on the following Business Day. NCPA may
apply a Participant's share of the Security Account to the payment cf all or any portion cf an
invoice issued to such Participant, provided that application cf such funds from the Security
Account shall not relieve the Participant from any late payment charges pursuant to Section 5.4.3.
To the extent that NCPA applies funds from the Security Account to pay an amount due under an
invoice, following receipt cf payment cf such invoice by the relevant Participant, NCPA shall
deposit the relevant portion of the payment into the Security Account and credit such deposit to
such Participant.
5.4.3 Late Payments. Any amount due and not paid by a Participant in
accordance with Section 5.4.2 shall bear interest computed on a daily basis until paid at the lesser
of (i) the per m u m prime rate (or reference rate) of the Bank of America NT&SA then in effect,
plus two percent (2%) or (ii) the maximum rate permitted by law.
5.5 Settlement Data and Examination cf Books and Records.
5.5.1 Settlement Data. NCPA will make metering and settlement data
available to the Participants. Procedures and formats for the provision CC such data will be as
established by the Participants and NCPA from time to time.
5.5.2 Examination of Books and Records. Any Participant to this
Agreement shall have the right to examine the books and records created and maintained by
NCPA pursuant to this Agreement at any reasonable, mutually agreed upon time.
5.5.3 Revenue Covenant. Any failure cC a Participant to meet its
obligations hereunder or to cure such failure in a timely manner shall constitute an Event cC
Default and the Defaulting Party shall be subject to such remedies cC NCPA as provided for herein.
Each Participant covenants and agrees (i) to continue to pay or advance to NCPA, from its electric
department revenues only or, in the case cC BART, its tariffs, fees or other sources cC revenue,
provided that such sources shall not include any sums derived from sources, the use of which is
limited by law to expenditures other than operating expenses, its percentage share of the costs
authorized by Participants in accordance with this Agreement in connection with its participation
in the Project. Each Participant further agrees that it will fix the rates and charges for services
provided by its electric department, or in the case cC BART, its general revenues, so that it will at
all times have sufficient money in its department revenue funds to meet this obligation; (ii) to
make payments under this Agreement from the Revenues of, and as an operating expense of, its
Electric System, or in the case of BART, its general revenues; (iii) to make payments under this
Agreement whether or not there is an interruption in, interference with, or reduction or suspension
cC services provided under this Agreement; such payments not being subject to any reduction,
whether by offset or otherwise, and regardless cC whether any dispute exists provided such
interruption, interference or reduction in services is caused by forces constituting an act of God'
and not reasonably contemplated by the Parties; and (iv) to operate its Electric System., or in the
case of BART, its transit system, in an efficient manner and to maintain its facilities in good repair,
condition and working order so that: (a) the Participant's obligations to make payments under this
Agreement are not adversely affected or threatened; and (b) NCPA's bond rating and ability to
negotiate and enter into a PPA are not adversely affected or threatened.
Section 6. Administration of Agreement
6.1 General. The NCPA Commission has sole overall responsibility and
authority for the administration of this Agreement. Any acts, decisions or approvals taken, made
or sought by NCPA under this Agreement shall be taken, made or sought, as applicable, in
accordance with NCPA's Constitutive Documents and Section 6.2.
6.2 Action by Participating -Members.
(a) Forum: Whenever any action anticipated by this Agreement is
required to be taken by the Participants, such actions shall be taken at a regular or special meeting
of the NCPA Commission but shall be participated in only by those Commissioners, or their
designated alternates, who are Participants.
(b)Quorum: A quorum at NCPA Commission meetings for
purposes of acting upon matters relating to this Agreement shall consist of Commissioners, or their
designated alternates, representing at least two Participants having a combined majority interest
based upon Participation Percentages.
(c) Voting: Each Participant shall have the right to cast one vote
with respect to matters pertaining to this Agreement, with a majority vote of the Participating
Members required for action subject to the following exceptions:
(i) Upon request of any Participant representative, the voting on
an issue related to this Agreement shall be by Participation Percentage with a 65% or more
1 For the purposes of Section 5.5.3, an "act of God" shall be defined as any natural disaster or uncontrollable
force not preventable by any human agency, such as, but not limited to, any storm, flood, or violent or
destructive natural force.
favorable vote necessary to carry the action. The 65% required by the preceding sentence shall be
reduced by the amount that the Participation Percentage cf any Participant exceeds 35%, but shall
not be reduced below a majority interest.
(ii) After any decision related to this Agreement is taken by the
affirmative vote cf less than 65% of the Program Participants, the action can be reviewed and
revised if a Participant gives notice cf intention to seek such review and revision to NCPA and
each of the other Participants within ten (10) days following the date on which such action was
taken. Upon receipt of such a request for reconsideration, the Chair of the Commission shall
agendize the matter for reconsideration at the next regular meeting cf the Commission or at a
special meeting if the circumstances so warrant. The action shall be upheld upon the affirmative
vote cf authorized representatives cf the Participants. Any action taken upon reconsideration shall
be final.
iii. Participants agree to abide by the terms and conditions of NCPA's
existing Facilities Agreement, as it may be amended from time -to -time, which is incorporated
herein, but due to the large size of the Facilities Agreement and its exhibits, is not made a separate
exhibit to this Agreement. The Participants also agree to execute the Facilities Agreement as a
signatory to that agreement as soon as possible.
Section 7. Transfer of Rights by Participants
7.1 A Participant has the right to make transfers, sales, assignments and
exchanges (collectively "transfers (s) ") its Participation Percentage and rights thereto. If a
Participant desires to transfer a portion or its entire share of the Project for a specific time interval,
or permanently, NPCA will, if requested by such Participant, use its best efforts to transfer that
portion of the Participant's share cf the Project.
7.2 Before NCPA may transfer an excess Project share pursuant to section 7.1 to
any person or entity other than a Participant, it shall give all Participants the right to purchase the
share on the same terms and conditions. Before NCPA may transfer an excess Project share
pursuant to section 7.1 to any person or entity other than an NCPA member, it shall give all NCPA
members the right to purchase the share on the same terms and conditions. Such right shall be
exercised within thirty (30) days cf receipt of notice of that right.
7.3 No transfer shall relieve a Participant of any cC its obligations under this
Agreement except to the extent that NCPA receives payment of these obligations from a transferee.
Section 8. Withdrawal of Participants. The Parties agree that only the Withdrawing
Participants may withdraw from this Agreement as a result of the amendment to the PPA entered
into between NCPA and Western GeoPower, Inc., dated . As a further condition of
withdrawal, the remaining Participants agree to fully subscribe to the total capacity cC the Project
and agree to indemnify and hold harmless Withdrawing Participants from liability arising out of
this Agreement after their withdrawal. However, no Participant may withdraw until the entire
capacity of the Project is fully subscribed by the remaining Participants. Upon withdrawal from
the Project, conditioned upon full subscription of the Project capacity by the non -Withdrawing
Participants, the Withdrawing Participants shall no longer have any rights, responsibilities,
liabilities or obligations with respect to this Agreement. Accordingly, Sections 10.5.1, 10.5.2 and
10.5.3,herein, are inapplicable to Withdrawing Participants.
With the exception of the foregoing, no remaining Participant may withdraw from
this Agreement after the Effective Date. However, NCPA will use its best efforts to assist any
Participant that wishes to transfer all or any portion cC its rights pursuant to Section 7 above.
Section 9. Term and Termination.
9.1 This Agreement shall become effective on the date (the "Effective
Date") when it has been executed and delivered to NCPA by Participants, the Participation
Percentages of which, in the aggregate, equal at least 65% participation in the Project. NCPA shall
provide written notices to all Participants, establishing the Effective Date. The remaining
Participants listed in Exhibit B shall have forty-five (45) days, following the notice cC the Effective
Date to execute and deliver counterparts cC this Agreement to NCPA. If any Participants listed on
Exhibit B fails to execute and deliver this Agreement or the Facilities Agreement within such forty-
five (45) days, unless otherwise agreed to by the Participants who have executed the Agreement,
the Participating Percentages of such member or members shall be allocated to those Participants
in proportion to, but not exceeding, their Participation Percentages. This Agreement shall be
coterminous with the PPA contained in Exhibit A.
9.2 This Agreement may be terminated by the Parties if NCPA successfully
exercises its right of first refusal to purchase the entire Western GeoPower project as set forth in
Section 11.6(e) of the PPA. In the event of termination pursuant to this Section 9.2, the Participants
shall pay to NCPA all previously unpaid costs and obligations incurred as of the date of such
termination. Following such termination, the Participants shall cooperate and act in good faith to
negotiate and agree upon the method of allocating among the Participants in proportion to their
respective Participation Percentages the costs and benefits of the PPA and any financing
agreements or commitments and any matters pertaining to the administration, management,
control, operation and maintenance of the PPA, including, but not limited to, re -subscribing the
Project capacity with additional NCPA members or non-member participants. NCPA shall
reasonably cooperate with the Participants and other NCPA members in connection with
implementing the foregoing, and the Participants shall indemnify NCPA for any costs and
obligations incurred in connection therewith, including reasonable attorneys' fees, fees and
expenses of other experts, including auditors and accountants and other reasonable and necessary
costs.
Section 10. Default and Remedies
10.1 Events of Default. An Event of Default under this Agreement shall exist
with respect to a Party (the "Defaulting Party") upon the occurrence of any one or more of the
following:
(i) if any Party fails to make any payment or to provide assurances as
required of NCPA under this Agreement when due hereunder two (2) Business Days after receipt
of notice given by NCPA of such non-payment; or
(ii) the failure of the Defaulting Party to perform any other covenant or
obligation under this Agreement where such failure is not cured within ten (10) days following
receipt of a notice from NCPA demanding cure (provided that this shall not apply to any failure to
make payments (which is covered by Section 10.1(i));or
(iii) if any representation or warranty of the Defaulting Party material to
the transactions contemplated hereby is or shall prove to have been incorrect in any material
respect when made and the Defaulting Party does not cure the facts underlying such incorrect
representation or warranty so that the representation or warranty becomes true and correct within
ten (10) calendar days of the date of receipt of notice from any other Party demanding cure; or
(iv) if a Participant is in default or in breach of any of its covenants
under any other agreement with NCPA and such default or breach is not cured within the time
period(s) specified in such agreement or, if not specified, within ten (10) calendar days of the date
of receipt of notice; or
(v) the failure of NCPA to perform any covenant or obligationunder this
Agreement following the delivery of a ten-day notice to cure by any non -defaulting Member.
10.2 Cure of an Event of Default. An Event of Default shall be deemed cured
only if such default shall be remedied within the time period specified in Section 10. 1, above, as
may be applicable after written notice has been sent to the Defaulting Party from NCPA specifying
the default and demanding that the same be remedied provided that failure of a Party to provide
such notice shall not be deemed a waiver of such default.
10.3 Participation Rights Of Defaulting Party. Notwithstanding anything herein
to the contrary, upon the occurrence of an Event of Default and until such Event of Default is
cured, the Participant that is the Defaulting Party shall not have the right to participate under
Section 6.2 on any matters with respect to this Agreement.
10.4 Remedies in the Event of Default.
10.4.1 Remedies of NCPA. Upon the occurrence of an Event of Default
where a Participant is the Defaulting Party, without limiting its other rights or remedies available
under this Agreement, at law or in equity, and without constituting or resulting in a waiver,
release or estoppels of any right, action or cause of action NCPA or a non -defaulting Member may
have against the Participant, NCPA may:
(i) suspend the provision cC goods and/or services under this
Agreement to such Defaulting Party, including the delivery of electricity and other attributes of the
PPA until the Event of Default is cured; and
(ii) demand that the Defaulting Party provide further assurances to
compel the correction of the default, including mandating the collection of a surcharge to produce
Revenues to secure the cure of the Event of Default; and
(iii) terminate this Agreement as to the Defaulting Party on ten (10) days'
prior written notice to the Defaulting Party and following approval of the non -defaulting
Participants.
10.4.2 Sale/Transfer of Participants Account Upon Default. Upon any
default of a Participant caused by the failure of such Participant to pay any sums due, and
provided that such default is not cured in a timely manner, then NCPA shall use its best efforts to
sell and transfer for the Defaulting Party's account all or a portion of the Participant's capacity
and/or energy and/or Environmental Attributes for the remainder of the term of this Agreement.
Notwithstanding that all or any portion of the Participant's capacity is so sold or transferred, the
Participant shall remain liable for all of its obligations hereunder.
10.4.3 Remedies of Participants. Upon the occurrence cC an Event of
Default, and following the applicable cure periods, where NCPA is the Defaulting Party, the
Participant may, without limiting their other rights or remedies available under this Agreement, at
law or in equity, and without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action the Participants may have against NCPA, terminate this Agreement, in
whole or in part, subject to the provisions of Section 10.5.4.
10.4.4 Special Covenants Regarding; Security Account. In the event that a
Participant's balance of the Security Account is insufficient to cover all invoices for costs incurred
under this Agreement sent to such Participant, then, without limiting NCPA's other rights or
remedies available under this Agreement, at law or in equity, such Participant shall cooperate in
good faith with NCPA and shall cure the default within thirty (30) days, on an emergency basis,
taking all such action as is necessary, including, but not limited to, raising rates and charges to its
customers to increase its Revenues to replenish its share of the Security Account as provided
herein, drawing on its cash -on -hand and lines of credit, obtaining further assurances by way of
credit support and letters of credit, and taking all such other action as will cure the default.
10.5 Effect cf Termination or Suspension.
10.5.1 The suspension or termination cf this Agreement will not
terminate, waive, or otherwise discharge any ongoing or undischarged contingent liabilities or
obligations arising from this Agreement until such obligations are satisfied in full, and all cf the
costs incurred by NCPA in connection with such suspension or termination, including reasonable
attorneys' fees, the fees and expenses cf other experts, including auditors and accountants, other
costs and expenses that NCPA is entitled to recover under this Agreement, and other reasonable
and necessary costs associated with any and all cf the remedies, are paid in full.
10.5.2 Suspension by NCPA. F performance cf all or any portion cf this
Agreement is suspended by NCPA with respect to a Participant in accordance with Section
10.4.1(1), such Participant shall pay any and all costs and obligations incurred by NCPA as a result
of such suspension, including reasonable attorneys' fees, the fees and expenses cf other experts,
including auditors and accountants, other reasonable and necessary costs associated with such
suspension and any portion of the Project Costs that were not recovered from such Participant as a
result cf such suspension.
10.5.3 Termination by NCPA. F this Agreement is terminated by NCPA
with respect to a Participant in accordance with Section 10.4.1 (iii), (i) such Participant shall pay
any and all costs and obligations incurred by NCPA as a result cf such termination including
reasonable attorneys' fees, the fees and expenses cf other experts, including auditors and
accountants, other reasonable and necessary costs associated with such termination and any
portion cf the Project Costs that were not, or will not be, recovered from such Participant as a
result cf such termination; provided, however, if NCPA terminates this Agreement with respect to
the last Participant, then this Agreement shall terminate.
10.5.4 Termination by Participants. If this Agreement is terminated by all
Participants in accordance with Section 10.4.3, or by unanimous consent cf all cf the Parties hereto,
then the Participants shall pay to NCPA all previously unpaid costs and obligations incurred as of
the date cf such termination„ and following such termination, the Participants shall cooperate and
act in good faith to negotiate and agree upon the method cf allocating among the Participants in
proportion to their respective Participation Percentages the costs and benefits cf the PPA and any
financing agreements or commitments and any matters pertaining to the administration,
management, control, operation and maintenance of the PPA. NCPA shall reasonably cooperate
with the Participants in connection with implementing the foregoing and the Participants shall
indemnify NCPA for any costs and obligations incurred in connection therewith, including
reasonable attorneys' fees, fees and expenses cf other experts, including auditors and accountants
and other reasonable and necessary costs. If the Parties are unable to reach agreement as to the
foregoing, then the Parties agree to submit the matter to mediation with a mutually agreed upon
mediator. If the Parties are still unable to reach agreement following mediation, then the matter
shall be submitted to binding arbitration subject to the rules cf the American Arbitration
Association, the costs cf such arbitration being borne proportionally among the Participants.
Section 11. Miscellaneous.
11.1 Confidentialitv. The Participants and NCPA will keep confidential all
confidential or trade secret information made available to them in connection with this Agreement,
to the extent possible, consistent with applicable laws, including the California Public Records Act.
It shall be the responsibility cf the holder cf the claim cf confidentiality or trade secret to defend at
its expense against any request that such information be disclosed. Confidential or trade secret
information shall be marked or expressly identified as such.
11.2 Indemnification and Hold Harmless. Subject to the provisions cf Section
11.4, each Participant agrees to indemnify, defend and hold harmless NCPA and its Members,
including their respective governing officials, officers, agents, and employees, from and against
any and all claims, suits, losses, costs, damages, expenses and liability cf any kind or nature,
including reasonable attorneys' fees and the costs cf litigation, including experts ("Claims"), to the
extent caused by any acts, omissions, breach of contract, negligence (active or passive), gross
negligence, recklessness, or willful misconduct cf a Participant, its governing officials, officers,
employees, subcontractors or agents, to the maximum extent permitted by law.
11.3 Several Liabilities. No Participant shall be liable under this Agreement for
the obligations cf any other Participant, and each Participant shall be solely responsible and liable
for performance of its obligations under this Agreement, except as otherwise provided for herein,
and the obligation of each Participant under this Agreement is a several obligation and not a joint
obligation with those of the other Participants.
11.4 No Consequential Damages. FOR ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS
PROVIDED IN THIS AGREEMENT, THE LIABILITY OF THE DEFAULTING PARTY SHALL BE
LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER DAMAGES OR REMEDIES
ARE HEREBY WAIVED. IF NO REMEDY OR MEASURE OF DAMAGE IS EXPRESSLY
PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY SHALL BE LIMITED TO ACTUAL
DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE HEREBY WAIVED. IN
NO EVENT SHALL NCPA OR ANY PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS,
ASSIGNS, REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE
LIABLE FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT,
PUNITIVE OR INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF
GOODWILL, LOST REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NCPA AND
EACH PARTICIPANT EACH HEREBY WAIVES SUCH CLAIMS AND RELEASES EACH OTHER
AND EACH OF SUCH PERSONS FROM ANY SUCH LIABILITY.
The Parties acknowledge that California Civil Code section 1542 provides that: "A general release
does not extend to claims which the creditor does not know or suspect to exist in his or her favor at
the time of executing the release, which if known by him or her must have materially affected his
or her settlement with the debtor." The Parties waive the provisions of section 1542, or other
similar provisions of law, and intend that the waiver and release provided by this section of this
Agreement shall be fully enforceable despite its reference to future or unknown claims.
11.5 Amendments. Except where this Agreement specifically provides
otherwise, this Agreement may be amended only by written instrument executed by the Parties
with the same formality as this Agreement.
11.6 Severability. In the event that any of the terms, covenants or conditions of
this Agreement or the application of any such term, covenant or condition, shall be held invalid as
to any person or circumstance by any court having jurisdiction, all other terms, covenants or
conditions cf this Agreement and their application shall not be affected thereby, but shall remain
in force and effect unless the court holds that such provisions are not severable from all other
provisions cf this Agreement.
11.7 Governing Law. This Agreement shall be interpreted, governed by, and
construed under the laws cf the State of California.
11.8 Headings. All indices, titles, subject headings, section titles and similar
items are provided for the purpose of convenience and are not intended to be inclusive, definitive,
or affect the meaning cf the contents of this Agreement or the scope thereof.
11.9 Notices. Any notice, demand or request required or authorized by this
Agreement to be given to any Party shall be in writing, and shall either be personally delivered to a
Participant and the Secretary cf the Commission or transmitted to the Participant and the Secretary
cf the Commission at the address shown on the signature pages hereof. The designation cf such
address may be changed at any time by written notice given to the Secretary cf the Commission
who shall thereupon give written notice cf such change to each Participant.
11.10 Warrantv cf Authority. Each Participant, and NCPA, represents and
warrants that it has been duly authorized by all requisite approval and action to execute and
deliver this Agreement and that this Agreement is a binding, legal, and valid agreement
enforceable in accordance with its terms as to the Participant and as to NCPA. Upon execution of
this Agreement, each Participant shall deliver to NCPA a resolution cf the governing body cf such
Participant, evidencing approval cf and authority to enter into this Agreement, that such authority
was duly exercised in accordance with such Participant's Constitutive Documents.
11.11 Counterparts. This Agreement may be executed in any number cf
counterparts, and each executed counterpart shall have the same force and effect as an original
instrument and as if all the signatories to all of the counterparts had signed the same instrument.
Any signature page of this Agreement may be detached from any counterpart of this Agreement
without impairing the legal effect of any signatures thereon, and may be attached to another
counterpart of this Agreement identical in form hereto but having attached to it one or more
signature pages.
11.12 Assignment. Except as provided by Section 7 no Participant may assign or
otherwise transfer its interest in its Participation Percentage or any other rights and obligations
under this Agreement without the express written consent of NCPA, which shall not be
unreasonably withheld.
11.13 Exercise of the Right of First Refusal. Participants shall abide by the NCPA
Facilities Agreement in the exercise of any options by NCPA to purchase the underlying assets of
the PPA as per the voting procedures of this Agreement outlined in Section 6. Participation in any
such purchase shall be in accordance with the then existing Participation Percentages, unless such
Participation Percentages are otherwise agreed upon by the Participants.
11.14 List of Exhibits. The Exhibits referenced herein shall be denoted as follows:
Exhibit A - AMENDED AND RESTATED RENEWABLE ENERGY POWER PURCHASE
AGREEMENT BETWEEN THE NORTHERN CALIFORNIA POWER AGENCY
AND WESTERN GEOPOWER INCORPORATED
Exhibit B - PARTICIPATION PERCENTAGES
Exhibit C FRAMEWORK AND COST ALLOCATION METHODOLOGY FOR SCHEDULE
COORDINATION, DISPATCH AND SETTLEMENT SERVICES
IN WITNESS WHEREOF, each Participant has executed this Agreement with the approval of its
governing body, and NCPA has authorized this Agreement in accordance with the authorization
of its Commission.
NORTHERN CALIFORNIA
POWER AGENCY Approved as to Legal Form
By: By:
Date:
IN WITNESS WHEREOF, each Participant has executed this Agreement with the approval of its
governing body, and NCPA has authorized this Agreement in accordance with the authorization
of its Commission.
NORTHERN CALIFORNIA
POWER AGENCY
By:_
Date:
CITY OF LODI
By:
Blair King, City Manager
Date:
ATTEST:
By:
Randi Johl, City Clerk
Approved as to Legal Form
an
Approved as to From
D. Stephen Schwabauer
City Attorney
Tn��
Exhibit B
Western GeoPower Project
PERCENTAGE PARTICIPATION
25 MW Capacity
Member
Share
MW
Lompoc
4.0%
1.00
Palo Alto
28.0%
7.00
Port of Oakland
4.0%
1.00
SVP
62.0%
15.50
Healdsburg
2.0%
0.50
RESOLUTION NO. 2009-121
A RESOLUTION 0 f THE LODI CITY COUNCIL AUTHORIZING THE
CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED THIRD
PHASEAGREEMENT WITH THE NORTHERN CALIFORNIA POWERAGENCY
FOR THE WESTERN GEOPOWER INC. RENEWABLE ENERGY POWER
PURCHASE AGREEMENT
WHEREAS, on February 20, 2008, the City Council authorized a Third Phase
Agreement with the Northern California Power Agency (NCPA)for the Lodi Electric Utility (LEU)
to buy energy from NCPA that NCPA would buy from Western GeoPower, Incorporated (WGI);
and
WHEREAS, WGI is unable to deliver energy for the previously agreed price of $98 per
megawatt -hour; and
WHEREAS, NCPA and WGI wish to increase the purchase price to $117 per megawatt -
hour, and NCPA anticipates full subscription by NCPA members at the higher price; and
WHEREAS, LEU no longer wishes to participate in the purchase from WGI due to the
price increase.
NOW, THEREFORE, BE IT RESOLVED by the Lodi City Council that the City Manager
is hereby authorized to execute an Amended and Restated Third Phase Agreement with NCPA
withdrawing LEU from participation in the WGI power purchase agreement, in substantially the
form presented with such non -substantive revisions recommended by the Electric Utility
Director; and
BE IT FURTHER RESOLVED that the Electric Utility Director is hereby authorized to
implement such Agreement.
Dated: September 2, 2009
I hereby certify that Resolution No. 2009-121 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held September 2, 2009, by the following vote:
AYES: COUNCIL MEMBERS — Hitchcock, Katzakian, and Mayor Hansen
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS —Johnson and Mounce
ABSTAIN: COUNCIL MEMBERS—None
(i
1 JOHL
City Clerk
2009-121