HomeMy WebLinkAboutAgenda Report - May 5, 2010 J-01AGENDA ITEMS,
CITY OF LODI�q<iFOR��a COUNCIL • •
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AGENDA TITLE: Adopt Resolution Certifying Concurrence with California Energy Commission
Environmental Findings and Approving Agreements with the Northern California
Power Agency for Power Sales, Project Management and Operation, Ground
Lease, and Recycled Water Supply (EUD)
MEETING DATE: May 5,2010
SUBMITTED BY: Interim Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution certifying concurrence with California Energy
Commission environmental findings and approving agreements with
the Northern California Power Agency for power sales, project
management and operation, ground lease, and water supply.
BACKGROUND INFORMATION: Lodi Energy Center (LEC) will be a 280 -megawatt combined -cycle
powerplant built and owned by the Northern California Power
Agency on City of Lodi property. The plant will be built south of
Lodi's White Slough Water Pollution Control Facility, between the NCPA Combustion Turbine Plant 2
(CT -2 or STIG) and 1-5. Upon completion, LEC will be the most energy efficient gas -powered power plant
in Northern California.
Based on an average price of $7 per million British thermal units for natural gas fuel, the LEC is expected
to produce electricity at an all -in cost of about 7.2 cents per kilowatt hour, while emitting 28 percent less
carbon dioxide than the sources it will displace. Due to a variety of factors, the plant's actual average
capability is expected to be 296 MW.
The California Energy Commission unanimously approved the licensefor the Lodi Energy Center on April
21. That set the stage for the power sale agreement, which NCPA will use to obtain financing for project
construction, and the management and operation agreement, which sets the rules for the plant's
operation.
CEQA
The California Energy Commission (CEC) is the lead agency under the California Environmental Quality
Act for LEC. The CEC Final Decision on NCPA's Application for Certification (AFC) includes
environmental analysis, findings, and mitigation measures and serves as the environmental impact report
for LEC. On April 21, 2010, the CEC issued its Final Decision that LEC, as conditioned, will not have any
significant environmental impact. Because Lodi is a "responsible agency" under CEQA, it must consider
the lead agency's findings for each significant effect of the Project and make its own appropriate findings.
The attached resolution makes all necessary findinqs for Lodi acting as a responsible agency. A copy of
the order approving the AFC is forthcoming. Lodi must file a Notice of Determination (attached) of
its approval with the San Joaquin County Clerk.
APPROVED:
Blair Ki ity Manager
Adopt Resolution Certifying Concurrence with California Energy Commission Environmental Findings and Approving
Agreements with the Northern California Power Agency for Power Sales, Project Management and Operation, Ground Lease,
and Recycled Water Supply May 5,2010
Page 2 of 2
Power Sale Agreement
NCPA must have 100 percent subscription before financing the project. Lodi's currently designated
9.3561 percent Generation Entitlement Share (GES) of LEC would provide 26.20 MW and about 40
percent of Lodi's annual electric energy need. Since other participants may seek an increase or reduce
their participation levels, staff recommends that the City Council authorize a range in Lodi's GES from
8.57 percent to 10 percent (or about 24 to 28 MW at a 280 MW LEC capacity level), and authorize the
City Manager to set that level prior to execution of the Power Sale Agreement (PSA).
The PSA provides that the LEC will be governed by a Project Participant Committee (PPC). Each
participantwill have one representative on the PPC, with votes weighted based upon GES. There are 14
LEC participants.
Other PSA highlights are similar to other NCPA projects in which Lodi participates. The PSA is attached.
Project Management and Operation
The Project Management and Operation Agreement (PMOA) provides that NCPA manage and operate
the LEC Project based on NCPA's capabilities and experience in operating similar projects. The PMOA
is attached.
Other Agreements
In addition, the final water supply agreement and final ground lease, implementing the Memorandum of
Understanding which Council previously approved on September 2, 2009, are attached. A Purchase and
Sale Agreement for the Giant Garter Snake Mitigation Conservation Easementwill be on the May 19
Agenda after SJCOG sets the final mitigation easement terms.
FISCAL IMPACT: For Lodi electric ratepayers, the savings are projected to range from $42 million to
$49 million over the projected 30 -year life of the LEC. Upon project financing, the
Electric Utility Departmentwill receive a $4.7 million reimbursement for its share of
project development costs. In addition, the City will receive $40,000 in annual
lease payments, plus a minimum of $960,000 from recycled water sales, both
escalating at 2.5 percent a year for at least 10 years.
FUNDING: Lo ''s share of the LEC will be paid through future electric rates (160652).
C�" e,
Jordan Ayers,
Deputy City Manager/Internal Services Director
4enneth Weisel,
Interim Electric Utility Director
KAW/lst
RESOLUTION NO. 2010-58
A RESOLUTION OF THE CITY OF LODI MAKING FINDINGSAS A
RESPONSIBLE AGENCY UNDER CEQA; APPROVING THE LODI ENERGY
CENTER POWER SALES AGREEMENT AND THE PROJECT MANAGEMENT
AND OPERATION AGREEMENT; AND APPROVING THE LODI ENERGY
CENTER AMENDED AND RESTATED GROUND LEASE AGREEMENT AND
AGREEMENT TO SUPPLY RECYCLEDWATER
WHEREAS, Lodi has elected to participate in the 280 MW (nominal) Lodi Energy Center
(LEC) being developed by the Northern California Power Agency (NCPA); and
WHEREAS, Lodi's Generation Entitlement Share in the LEC is 9.3561% or a nominal
26.20 MW; and
WHEREAS, the California Energy Commission (CEC) has approved the LEC Application
for Certification (AFC) on April 21, 2010, and such approval by the CEC includes various
environmental analysis, findings and mitigation measures under the terms of the Warren-Alquist
Act (Public Resources Code Section 25500 et seq.). The CEC's analysis, findings, and
mitigation measures constitute the equivalent of an environmental impact report for purposes of
the California Environmental Quality Act (CEQA, Public Resources Code Section 21000 et seq.)
as a "certified regulatory program" pursuant to CEQA Guidelines Section 152510). The CEC
has acted as the "lead agency" for this Project for purposes of environmental analysis. As a
consequence, rather than conducting its own independent environmental analysis under CEQA,
Lodi is acting as a "responsible agency" under CEQA and is thus responsible for considering
the analysis, findings, and mitigation measures of the CEC and reaching Lodi's independent
conclusions on whether and how to approve the LEC (CEQA Guidelines Section 15096); and
WHEREAS, Lodi, acting as a responsible agency, has independently considered the
analysis, findings, and mitigation measures prepared by CEC as reflected in Exhibit A attached
to this Resolution; and
WHEREAS, NCPA and Participants have prepared a Power Sales Agreement (PSA),
which upon execution by all the LEC Participants and NCPA will permit financing, construction,
and operation of the Project; and
WHEREAS, the Lodi City Council understands that, if one or more other Project
Participants reduce or increase their Generation Entitlement Share (GES), Lodi may revise its
GES to a GES between a minimum of 8.57% and a maximum of 10% to effectuate Project
financing and construction; and
WHEREAS, the City of Lodi is desirous of NCPA managing and operating the LEC on its
behalf, and on behalf of other Project participants, and NCPA and Participants have prepared a
Project Management and Operation Agreement (PMOA), which upon execution by LEC
Participants and NCPA provides for LEC management and operation by NCPA; and
WHEREAS, the City of Lodi acknowledges that the PSA forms a Project Participant
Committee (PPC), which will provide Project governance and to establish, and from time to time
revise, directives related to LEC capital expenditures, budgets, operations, and maintenance,
among other items, and that Lodi is to designate a Lodi official responsiblefor serving as Lodi's
representative and alternate representative on the PPC; and
WHEREAS, NCPA and the City of Lodi have prepared an Amended and Restated
Ground Lease Agreement, which upon execution by the City of Lodi and NCPA will provide
payment to the City of Lodi for the LEC's location and use of land owned by the City of Lodi for
the life of the LEC; and
WHEREAS, NCPA and the City of Lodi have prepared an Agreement to Supply
Recycled Water, which upon execution by the City of Lodi and NCPA will provide recycled water
to LEC from the City of Lodi's White Slough Water Pollution Control Facility for the life of the
LEC.
NOW, THEREFORE, BE IT RESOLVED that the City Council hereby acting in its
capacity as a responsible agency for purposes of CEQA makes the findings as provided in
Exhibit A of this resolution and hereby directs the City Manager or his designee to record a
Notice of Determination in the County of San Joaquin reflecting these findings; and
BE IT FURTHER RESOLVED that the City Council hereby approves the Power Sales
Agreement and the Project Management and Operation Agreement, authorizes the City
Manager or his designee to execute these two agreements with such non -substantive changes
as the City Manager finds beneficial on behalf of Lodi and to adjust Lodi's Generation
Entitlement Share as reflected in the PSA and PMOA to between a minimum of 8.57% and a
maximum of 10% to effectuate Project financing and construction, and authorizes the Electric
Utility Director to administer these agreements; and
BE IT FURTHER RESOLVED that the City Council hereby designates the Electric Utility
Director or his designee as the Lodi's representative on the PPC and authorizing the Electric
Utility Director to designate alternate representatives and notify NCPA of such designations; and
BE IT FURTHER RESOLVED that the City Council hereby approves the Amended and
Restated Ground Lease Agreement and the Agreement to Supply Recycled Water between
NCPA and the City of Lodi, authorizes the City Manager or his designee to execute these
agreements with such non -substantive changes as the City Manager finds beneficial on behalf
of the City of Lodi, and authorizes the City Manager or his designee to administer these
agreements.
Dated: May 5, 2010
----------------
----------------
hereby certify that Resolution No. 2010-58 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held May 5, 2010, by the following vote:
AYES: COUNCIL MEMBERS — Hansen, Hitchcock, Johnson, Mounce, and
Mayor Katzakian
NOES: COUNCIL MEMBERS— None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS— No
I JOHL
City Clerk
2010-58
EXHIBIT A
EXHIBITA
ENVIRONMENTAL FINDINGS
The City of Lodi (Participant), as a Participant in the Lodi Energy Center (Project), makes the
following findings pursuant to the California Environmental Quality Act ("CEQA"), Public
Resources Code section 21000 et seq., and the Guidelines implementing CEQA ("CEQA
Guidelines") Code of Regulations, title 14, section 15000 et seq.
1. The California Energy Commission ("CEC") is the lead agency for this Project under
CEQA.
2. The CEC is a certified regulatory agency pursuant to CEQA section 21080.5 and CEQA
Guidelines sections 15250 —15253.
3. As a certified regulatory agency, rather than an Environmental Impact Report (`BIR"),
the CEC prepares an `BIR substitute" as the CEQA documentation for the Project.
4. The CEC's EIR substitute for this Project is the Presiding Member's Proposed Decision
("TMPD") released on March 10, 2010, as supplemented by the "Errata to the Presiding
Member's Proposed Decision" dated April 20, 2010, and approved by the CEC on April
21, 2010 without further substantive change.
5. Participant is a responsible agency for the Project under CEQA.
6. Participant finds that the CEC's process meet all of the conditions of CEQA Guidelines
section 15253 that would allow Participant to use and rely upon the CEC findings.
Specifically, Participant finds that:
a. The CEC is the first to grant a discretionary approval for the Project.
b. The CEC provided Participant the opportunity to consult with the CEC and to
comment on the PMPD.
c. The PMPD considers both the significant environmental impacts of the Project
that are within the jurisdiction of the Participant, if any, and considers alternatives
to the Project.
d. The CEC exercised its powers as lead agency by considering all of the
environmental impacts of the Project and made the appropriate findings pursuant
to CEQA Guidelines section 15091 for each significant impact of the Project.
7. Participant has considered the PMPD and the environmental impacts of the Project
described in the PMPD, pursuant to CEQA Guidelines 15096 subdivision (fl.
8. The PMPD concludes that, as conditioned, the Project will not have any significant
adverse effects on the environment. Thus, pursuant to CEQA Guidelines 15096
subdivision (g), Participant finds that there are no alternatives or mitigation measures
within the powers of Participant to adopt that would substantially reduce or avoid any
significant environmental impact of the Project.
9. Pursuant to CEQA Guidelines 15096 subdivision (h), Participant is required to make
findings pursuant to CEQA Guidelines section 15091 for each significant impact of the
Project. Participant has considered the PMPD, the description of the Project's
environmental impacts contained therein, the findings of fact and conclusions of law
contained therein, and the conditions of certificationcontained therein, and, exercising its
independentjudgment, Participant finds the following:
a. For all environmental impacts of the Project, changes or alterations have been
required in, or incorporated into, the Project which will avoid or substantially
lessen the significant environmental effects as identified in the PMPD.
b. These findings are supported by substantial evidence in the record.
c. The conditions of certification imposed on the Project by the CEC are within the
authority of the CEC and will be monitored and enforced by the CEC.
10. That approval of both the Power Sales Agreement and Project Management and
Operation Agreement, providing for the financing, construction and operation of the
Project has no impacts on the environment not addressedwithin the prior CEC analysis.
Notice of Determination Appendix D
To
❑ Office of Planning and Research
For U.S. Mail: Street Address:
P.O. Box 3044 1400 Tenth St.
Sacramento, CA 95812-3044 Sacramento, CA 95814
® County Clerk
County of: San Joaquin
44 North San Joaquin Street, #260
Address: Stockton, CA 952002
Phone: (209) 468-3939
From:
Public Agency:
City of Lodi Electric Utility
Address:
1331 South Ham Lane
Lodi, CA 95242-3995
Contact:
Ken Weisel
Phone:
209-333-6764
Lead Agency (if different from above):
California Energy Commission
Address: 1516 Ninth Street, MS- 15
Sacramento, CA 95814
Contact: Rod Jones
Phone: 916-654-5191
SUBJECT: Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code.
State Clearinghouse Number (if submitted to State Clearinghouse):
Project Title: Lodi Energy Center ("LEC") Project.
Project Location (include county): The site for the LEC project is 4.4 acres of land in the city of Lodi, 6 miles
west of the Lodi citv center. located near Interstate -5 (I-5) annroximately 1.7 miles south of State Route 12. (San
Joaquin County).
Project Description:
The LEC is a natural gas-fired, combined -cycle nominal 296 -megawatt (MW) power generation facility located in the
City of Lodi, CA.
This is to advise that the City of Lodi Electric Utility has approved the above described project on
❑ Lead Agency or ® Responsible Agency
and has made the following determinations regarding the above described project:
(Date)
1. The project WILL NOT have a significant effect on the environment.
2. The California Energy Commission ("CEC") is a certified regulatory agency under Public Resources Code
section 21080.5 and CEQA Guidelines section 15251. The CEC prepared a substitute document for an
Environmental Impact Report pursuant to Guidelines section 15252.
3. Measures to mitigate the impacts of the LEC were made conditions of approval of the project.
4. The CEC, through a Compliance Project Manager, will monitor, oversee, and verify compliance with the
conditions of CEC approval of the project.
5. A Statement of Overriding Consideration WAS NOT adopted for the project.
6. Findings WERE made pursuant to the provisions of CEQA.
This is to certify that the CEC's substitute document in place of an EIR and the record of project approval is
available to the General Public at:
1331 South Ham Lane. Lodi. CA
Signature (Public Agency)
Title
Date
Date Received for filing at OPR
Authority cited: Section 21083, Public Resources Code.
Reference: Sections 21000-21174, Public Resources Code. Revised 2005
OH&S Draft of April 8,2 010
LODI ENERGY CENTER POWER SALES AGREEMENT
By and Among
NORTHERN CALIFORNIA POWER AGENCY
and
EACH OF THE PUBLIC AGENCIES SIGNATORY HERETO
Dated as of ,2010
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OH&S Draft of April 8, 2010
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TABLE OF CONTENTS
Page
PARTIES......................................................................................................................................... 1
RECITALS......................................................................................................................................
AGREEMENT................................................................................................................................
DEFINITIONS................................................................................................................................
REPRESENTATIONSAND WARRANTIES.............................................................................
SALE AND PURCHASE OF PROJECT OUTPUT.....................................................................
OBLIGATIONS OF NCPA AND PARTICIPANTS...................................................................
PARTICIPANT COMMITTEE....................................................................................................
CHARACTERAND CONTINUITY OF SERVICE....................................................................
PROJECT CAPACITY AND ENERGY AVAILABILITY.........................................................
FUELPROCUREMENT..............................................................................................................
METERING..................................................................................................................................
RESTRICTIONS ON DISPOSITION..........................................................................................
1
2
2
13
14
15
18
22
23
23
23
23
COST OF CONSTRUCTION OF INITIAL FACILITIES........................................................... 25
COST OF CONSTRUCTION OF NON -FINANCED CAPITAL IMPROVEMENTS ...............27
16. COST OF CONSTRUCTION OF FINANCED CAPITAL IMPROVEMENTS ......................... 27
17. CHARGES AND BILLINGS....................................................................................................... 29
18. PARTICIPANT PAYMENT OBLIGATIONS AND RATE COVENANT ................................. 35
19. PARTICIPANTS' OBLIGATIONS SEVERAL........................................................................... 36
20. PLEDGE UNDER INDENTURES............................................................................................... 36
21. FUNDS; APPLICATION OF PROJECT REVENUES................................................................ 37
22. PAYMENT DEFAULT AND REMEDIES.................................................................................. 39
23. DEFAULTS OTHER THAN PAYMENT DEFAULTS.............................................................. 45
24. INDEMNIFICATIONAND RELATED MATTERS................................................................... 45
25. REIMBURSEMENT OF PROJECT DEVELOPMENT COSTS ................................................. 47
26.
REFUNDING BONDS AND BOND RELATED DOCUMENTS ..............................................
47
27.
INDENTURES AND GOVERNMENTAL REQUIREMENTS..................................................
47
28.
EXPRESS THIRD -PARTY BENEFICIARIES............................................................................
48
29.
COUNTERPARTS........................................................................................................................
48
30.
OBSERVANCE OF LAWS..........................................................................................................
48
31.
FURTHER ASSURANCES..........................................................................................................
48
32.
EFFECTIVE DATE......................................................................................................................
48
33.
TERM OF AGREEMENT............................................................................................................
48
34.
SUCCESSORS..............................................................................................................................
48
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TABLE OF CONTENTS
Page
35. NOTICES...................................................................................................................................... 49
36. SEVERABILITY.......................................................................................................................... 49
37. AMENDMENTS TO AGREEMENT........................................................................................... 49
38. ASSIGNMENTS........................................................................................................................... 49
39. OFFICIAL FILE........................................................................................................................... 50
40. GOVERNING LAW..................................................................................................................... 50
41. SPECIAL PROVISIONS APPLYING TO CDWR AND NCPA ONLY ..................................... 50
42. APPENDICES............................................................................................................................... 50
APPENDIX A LODI ENERGY CENTER PROJECT PARTICIPANT SHARES ............................... A-1
APPENDIX B DESCRIPTION OF THE INITIAL FACILITIES........................................................... B-1
APPENDIX C OPINION OF INDEPENDENT COUNSEL TO PARTICIPANT .................................. C-1
APPENDIX D PARTICIPANT ADDRESSES FOR NOTICE.............................................................. D-1
APPENDIX E STATE OF CALIFORNIA GENERAL TERMS AND CONDITIONS ......................... E-1
APPENDIX F CERTIFICATION CLAUSES......................................................................................... F-1
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LODI ENERGY CENTER
POWER SALES AGREEMENT
PARTIES. This Lodi Energy Center Power Sales Agreement, dated as of ,20 10, is by
and among the Northern California Power Agency, a j oint exercise of powers agency and a public
entity organized under the laws of the State of California, and each of the undersigned entities.
2. RECITALS. This Agreement (capitalized terms used herein and not otherwise defined shall
have the meanings given such terms pursuant to Section 4) is made with reference to the
following facts among others.
2.1 NCPA was created pursuant to provisions contained in the Act and the Joint Powers
Agreement by its members for the purpose of jointly and cooperatively undertaking
planning, financing, development, construction, management, operation and maintenance
of projects for the generation or transmission of electric energy in accordance with the
Act.
2.2 Pursuant to the terms of the Act and the Joint Powers Agreement, NCPA has the power to
plan, develop, finance, own, acquire, design, construct, operate, maintain and repair
electric generation and transmission projects or cause such projects to be planned,
developed, financed, designed, constructed, operated, maintained and repaired, and to
provide by agreement with a public agency of the State of California to perform such
activities.
2.3 The Participants include certain members of NCPA and certain entities which are not
members of NCPA.
2.4 All Participants have need for an economical, reliable source of electric capacity and
energy to meet the demands of their current and future customers and their own power
supply requirements.
2.5 To address the Participants' need for an economical, reliable source of electric capacity
and energy, the Participants have previously entered into the Development Agreement
with NCPA in order to provide funding for certain planning, licensing, engineering and
development activities related to the Project.
2.6 Pursuant to the Development Agreement NCPA has completed certain planning,
licensing, engineering and development activities related to the Project and has reported
the results of such activitiesto the Participants.
2.7 The Parties desire to proceed with the financing, construction, operation and maintenance
of the Project, and the sale of the Project Capacity and Energy to the Participants, as
provided in this Agreement to satisfy a portion of the Participants' need for an
economical, reliable source of electric capacity and energy.
2.8 NCPA and the Participants have determined that it is desirable to enter into this
Agreement with the intent that this Agreement shall supersede the Development
Agreement and the Development Agreement shall terminate upon the Effective Date, in
each case except as provided in Section 25.
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2.9 NCPA is to take or cause to be taken all steps necessary to secure such governmental
permits, licenses and approvals as are necessary for, and will then proceed as appropriate
with, the financing, engineering, design, equipment procurement, construction, capital
improvement, operation and maintenance of the Project as provided in this Agreement.
2.10 NCPA is to own the Project and is to finance the Costs of Construction of the Project and
to operate the Project on the terms and conditions provided in this Agreement and the
PMOA.
2.11 NCPA intends to issue Bonds to pay the Indenture Group A Participants' share of the
Costs of Construction of the Initial Facilities and all Financed Capital Improvements.
2.12 NCPA intends to issue Bonds to pay the Indenture Group B Participant's share of the
Initial Estimate of the Costs of Construction of the Initial Facilities, and, unless the
Indenture Group B Participant requests NCPA to issue Bonds for such purposes as
provided in this Agreement, the Indenture Group B Participant shall provide Capital
Contributions to fund its share of Additional Costs of the Initial Facilities and the Costs
of Construction of all Financed Capital Improvements.
2.13 The Indenture Group C Participant is to provide Capital Contributions for its share of the
Initial Estimate of the Costs of Construction of the Initial Facilities, and, unless the
Indenture Group C Participant requests NCPA to issue Bonds for such purpose as
provided in this Agreement, the Indenture Group C Participant shall provide Capital
Contributions to fund its share of Additional Costs of the Initial Facilities and the Costs
of Construction of all Financed Capital Improvements.
2.14 In order to enable NCPA to issue Bonds as provided in this Agreement, this Agreement
provides that the payment obligations of the Participants hereunder, while limited to
Enterprise Revenues, are unconditional and not subject to set off or reduction for any
reason and that NCPA's rights hereunder, including the right to receive payments
hereunder from the Participants in the various Indenture Groups, are to be pledged to the
appropriate Trustees, as security for the payment of the related Bonds, and the interest
thereon, subject to the application thereof to such purposes and on such terms as provided
in this Agreement and the applicable Indentures.
3. AGREEMENT. For and in consideration of the promises and the mutual covenants and
agreements hereinafter set forth, and in order to pay NCPA for each Participant's share of the cost
of the Capacity and Energy of the Project, it is agreed by and between the Parties hereto as set
forth in this Agreement.
4. DEFINITIONS. The terms defined in this Section 4, whether in the singular or plural, unless
specifically provided otherwise, when used herein or in the Appendices hereto shall have the
meanings ascribed thereto as set out below:
4.1 Accumulated Maximum Step-up Percentage. The maximum total GES which can be
allocated to each Indenture Group A Participant as a result of a GES Step-up which shall
be [thirty-five] percent ([35]%) of such Indenture Group A Participant's GES set forth in
Appendix A as of the Effective Date. The Accumulated Maximum Step-up Percentage
shall not include any GES an Indenture Group A Participant voluntarily accepts in a GES
Lay -Off pursuant to Section 22.2.1.
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4.2 Act. The Joint Exercise of Powers Act, constituting Chapter 5 of Division 7 of Title 1 of
the California Government Code, as amended and supplemented.
4.3 Additional Costs. Those Costs of Construction of the Initial Facilities and/or a Financed
Capital Improvement in excess of the Initial Estimate of the Costs of Construction of the
Initial Facilities or such Financed Capital Improvement.
4.4 Agreement. This Lodi Energy Center Power Sales Agreement, as it may be amended or
supplemented from time to time in accordance with its terms. This Agreement is declared
by NCPA and each member of NCPA which is a Participant to be a "Third Phase
Agreement" under the terms of the Member Service Agreement between NCPA and such
Participant.
4.5 Bankruptcy Code. Title 11 of the United States Code, as amended.
4.6 BART. The San Francisco Bay Area Rapid Transit District.
4.7 Billing Statement. The written billing statementto each Participant prepared or caused to
be prepared each month by, or on behalf of, NCPA pursuant to Section 17.3.
4.8 Bonds. Bonds, notes, bond anticipation notes, or other evidences of indebtedness issued
by, or loans taken out by, or Public Finance Contracts entered into by, NCPA pursuant to
an Indenture from time to time to: (i) finance or refinance the Costs of Construction of
the Initial Facilities or Financed Capital Improvements; or (ii) to provide credit
enhancement for or economically modify NCPA's payment obligations with respect to
such bonds, notes, bond anticipation notes, other evidences of indebtedness or loans.
4.9 Ca aci . As of any time the ability of the Project at such time to generate or produce
electricity, expressed in kW or MW.
4.10 Capital Budget. The budget prepared by NCPA for Costs of Construction of the Initial
Facilities and each Capital Improvement pursuant to Section 7.3.
4.11 Capital Contribution. With respect to Additional Costs of the Initial Facilities and the
Costs of Construction of each Financed Capital Improvement and the Indenture Group B
Participant or the Indenture Group C Participant which has given (or has been deemed to
have given) NCPA a Capital Contribution Notice with respect to its share of such Costs
of Construction, the amount of payment or payments by such Participant to be made in
accordance with Section 14.4, 14.5, 16.4 or 16.5.
4.12 Capital Contribution Notice. With respect to the Indenture Group B Participant and/or
the Indenture Group C Participant, a notice provided to NCPA by such Participant to the
effect that it intends to make a Capital Contribution in lieu of having NCPA issue Bonds
for its share of any Additional Costs of the Initial Facilities or the Costs of Construction
of a Financed Capital Improvement.
4.13 Capital Imurovement. Any unit of property, property right, land or land right which is a
replacement, repair, addition, modification, improvement or betterment to the Project or
any electrical transmission or fuel facilities (including but not limited to natural gas
pipelines, gas reserves and storage facilities) relating to, or for the benefit of, the Project,
the betterment of land or land rights or the enlargement or betterment of any such unit of
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property constituting a part of the Project or related electrical transmission or fuel
facilities which: (i) is acquired or constructed after the Commercial Operation Date; (ii)
which has an estimated useful life in excess of one year; (iii) the Costs of Construction of
which is not treated as an Operation and Maintenance Expense; and (iv) which is either
(a) consistent with Prudent Utility Practice and, except for Required Costs, has received
Participant Committee Approval or (b) required by any governmental agency having
jurisdiction over the Project and reviewed by the Participant Committee.
4.14 CDWR. The State of California Department of Water Resources.
4.15 Contributions in Aid of Construction. With respect to the Costs of Construction of each
Non -Financed Capital Improvement, the amount of payment or payments by the
Participants to be made in accordance with Section 15.
4.16 Costs of Construction. With respect to the Initial Facilities and each Capital
Improvement, all costs and expenses of planning, designing, acquiring, constructing and
installing the Initial Facilities or such Capital Improvement, placing the Initial Facilities
or such Capital Improvement in operation, disposal of the Initial Facilities or such Capital
Improvement, decommissioning of the Initial Facilities or such Capital Improvement and
obtaining governmental approvals, certificates, permits and licenses with respect thereto
heretofore or hereafter paid or incurred by NCPA but shall not include Financing Costs or
Indenture Deposits. The term Costs of Construction shall include funds required for all
of the following with references to the Project being references to the Initial Facilities and
each Capital Improvement as appropriate:
(a) All costs of planning, developing, constructing and mitigating impacts of the
Project, placing the Project in operation, decommissioning of the Project, and
obtaining governmental approvals, certificates, permits and licenses with respect
thereto, including air emission credits.
(b) All costs of transmission facilities or project enhancements and replacement parts
related to, or for the benefit of, the Project.
(c) Costs of preliminary investigation and development, the performance or
construction of feasibility and planning studies for the Project, Project licensing,
and the securing of regulatory approvals, as well as costs for land and land rights,
water and water rights, engineering, contractors' fees, labor, materials, equipment
and legal fees relating to the Project, including costs incurred under the
Development Agreement.
(d) Costs of utility services and supplies during construction.
(e) To the extent not included in Total Monthly Power Costs, all costs related to the
construction or acquisition of resources and facilities, and the requisite supplies
of fuel, fuel transportation and water for the Project.
(f) To the extent not included in Total Monthly Power Costs, all costs relating to
injury and damage claims arising out of the development and construction/
improvement of the Project less proceeds of insurance.
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(g) To the extent not included in Total Monthly Power Costs, legally required or
permitted federal, state and local taxes relating to the Project.
(h) Working capital and reserves in such amounts as shall be required during
construction of the Project and for placing the Project in operation.
(i) Training and testing costs which are properly allocable to the construction of the
Project or placing the Project in operation.
�) All costs of insurance applicable to the period of construction and placing the
Project in operation.
(k) Amounts payable with respect to capital costs for the expansion, reinforcement,
enlargement, movement, reconstruction or other improvement of facilities
determined by NCPA as necessary in connection with the utilization of the
Project and the costs associated with the removal from service or reductions in
service of any facilities as a result of the expansion, reinforcement, enlargement
or other improvement of such facilities or the construction of the Project.
(1) All costs required to be paid to NCPA under the PMOA which are applied or are
to be applied thereunder to the payment of Costs of Construction.
(m) All other costs incurred by NCPA and properly allocable to the acquisition,
construction, placing in operation or decommissioning of the Project or any
portion thereof.
4.17 Commercial Operation Date. The initial date on which the Initial Facilities can be
commercially operated and dispatched, as approved by the Participant Committee in
consultation with NCPA.
4.18 Default Mitigation Sale. A sale of Project Capacity and/or Energy pursuant to
Section 22.2.3 with respect to the GES of a Defaulting Participant.
4.19 Default Mitigation Sale Fund. The fund to be established and maintained by NCPA
pursuant to Section 21.6.
4.20 DefaultingParticipant. As of any time, a Participant as to which a Payment Default has
occurred and is continuing.
4.21 Development Agreement. The Second Phase Agreement for Funding the Planning and
Development Activities of the Lodi Energy Center, that became effective on or about
March 1,2008, among NCPA and the Participants. Except as provided in Section 25, the
Development Agreement is superseded by this Agreement.
4.22 Effective Date. The date described in Section 32.
4.23 Ener . The electricity produced by the Project expressed in kWh or MWh.
4.24 Enterprise. With respect to: (i) each Participant other than CDWR, BART and the City
of Oakland, the electric utility owned by such Participant; (ii) with respect to CDWR, the
State Water Resources Development System (as defined in California Water Code
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Section 12931); (iii) with respect to BART, its rail transit system; and (iv) with respect to
the City of Oakland, the Port of Oakland (as defined in the Charter of the City of
Oakland); in each case as constituted on the Effective Date and as the same may be
improved, replaced and expanded.
4.25 Enterprise Revenues. With respect to each Participant all income, rents, rates, fees
charges and other revenues derived by the Participant from the ownership or operation of
its Enterprise; provided, however that a Participant's Enterprise Revenues shall not
include any moneys which by law are limited to uses other than the payment of operating
expenses of the Participant's Enterprise or, with respect to Capital Contributions and
Contributions in Aid of Construction, capital costs of the Project.
4.26 Financed Capital Improvement. A Capital Improvement for which the Costs of
Construction is to be paid with the proceeds of Bonds and/or Capital Contributions.
4.27 Financing; Costs. With respect to any Bonds, all costs and expenses incurred by NCPA in
connection with the authorization, sale, and delivery of such Bonds.
4.28 Fiscal Year. The twelve-month period commencing at 12:01 a.m. on July 1 of each year
and ending immediately before 12:01 a.m. on the next following July 1, or such other 12
month period as shall be adopted by NCPA as its fiscal year.
4.29 Fuel Cost. All amounts which have received Participant Committee Approval and are
payable by NCPA in connection with the acquisition of natural gas for, and delivery of
natural gas to, the Project, including the cost associated with contract payments under
minimum or guaranteed payment provisions.
4.30 Fuel Cost Component. The amounts described in Section 17.1.2.
4.31 Funding Notice. A notice provided by NCPA to Participants pursuant to Section 14.2 or
Section 16.2.
4.32 General Reserve Fund. The fund to be established and maintained by NCPA pursuant to
Section 21.5.
4.33 GES. The generation entitlement share (expressed as a percentage) of a Participant to a
portion of the Project Energy and Capacity, as such generation entitlement share may be
amended or revised from time to time in accordance with a GES Lay -Off or a GES Step -
Up. The GES of each Participant as of the Effective Date is set forth in Appendix A of
this Agreement.
4.34 GES Lav -Off. An increase in the GES of a Participantpursuant to Section 22.2.1.
4.35 GES Step -Up. An increase in the GES of an Indenture Group A Participant pursuant to
Section 22.2.2.
4.36 1CS. The indenture cost share of a Participant in an Indenture Group which is the portion
of the Indenture Cost Component for such Indenture Group allocable to such Participant
which is: (a) as of any time with respect to each Participant in Indenture Group A, the
percentage obtained by dividing the GES of such Participant as of such time by the GES
of all Indenture Group A Participants as of such time; (b) with respect to the Indenture
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Group B Participant, 100%; and (c) with respect to the Indenture Group C Participant,
100%.
4.37 Indenture. One or more indentures of trust, resolutions, loan agreements, standby bond
purchase agreements, reimbursement agreements, contracts or other applicable debt
instruments or documents providing for the issuance of, or otherwise relating to, Bonds,
as from time to time amended and supplemented in conformity with its provisions and the
provisions of this Agreement.
4.38 Indenture Cost Component. The amounts described in Section 17.1.3.
4.39 Indenture Deposits. With respect to each Indenture, the amounts, other than the Costs of
Construction, which are required to be deposited in a fund or account pursuant to such
Indenture at the time Bonds are issued thereunder, including:
(a) The deposit or deposits from the proceeds of Bonds in any funds or accounts
established pursuant to an Indenture to pay capitalized interest on such Bonds.
(b) The deposit or deposits from the proceeds of Bonds in any fund or account
established pursuant to an Indenture to meet any respective debt service reserve
requirements for Bonds.
(c) The payment of principal, premium, if any, and interest when due (whether at the
maturity of principal or at the due date of interest or upon redemption) of any
obligations issued for the purpose of financing the Costs of Construction,
including any related costs of financing.
4.40 Indenture Group(s). One or more of Indenture Group A, Indenture Group B and/or
Indenture Group C.
4.41 Indenture Group A. A subset of the Participants consisting of the California Cities of
Azusa, Biggs, Gridley, Healdsburg, Lodi, Lompoc, Oakland, Santa Clara and Ukiah, and
BART, the Plumas-Sierra Rural Electric Cooperative and the Power and Water Resources
Pooling Authority.
4.42 Indenture Group Approval. With respect to the approval or authorization of any action,
transaction, program or procedure relating to an Indenture or Bonds by the NCPA
Commission after the Effective Date, that such action, transaction, program or procedure
has been approved by: (i) with respect to the Indenture Group A Participants the
Indenture Group A Non -Defaulting Participants as provided in Section 8.4; (ii) with
respect to Indenture Group B, the Indenture Group B Participant if not then a Defaulting
Participant; and (iii) and with respect to Indenture Group C, the Indenture Group C
Participant if not then a Defaulting Participant.
4.43 Indenture Group B. A subset of the Participants consisting of the California Department
of Water Resources.
4.44 Indenture Group C. A subset of the Participants consisting of the Modesto Irrigation
District.
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4.45 Initial Estimate. With respect to the Initial Facilities, [$375,300,000] and with respect to
each Capital Improvement, the Initial Estimate shall be the first estimate of the Costs of
Construction of such Capital Improvement approved by the Participant Committee
whether by way of a Capital Budget setting forth such estimate or otherwise.
4.46 Initial Facilities. The electric generating station and related facilities, including shared
facilities, and rights described in Appendix B, as such Appendix B may be amended from
time to time prior to the Commercial Operation Date.
4.47 Interconnection Agreement. Any agreement between NCPA and a third party regarding
terms and conditions for establishing and maintaining an interconnection between the
Project and the Point of Delivery.
4.48 Joint Powers Agreement. The Amended and Restated Northern California Power Agency
Joint Powers Agreement, dated as of January 1, 2008, by and among the Cities of
Alameda, Biggs, Gridley, Healdsburg, Lodi, Lompoc, Palo Alto, Redding, Roseville,
Santa Clara and Ukiah, California, the Plumas-Sierra Rural Electric Cooperative, the
Turlock Irrigation District, the Port of Oakland, the Truckee -Donner Public Utilities
District and the Bay Area Rapid Transit District as the same may be amended and
supplemented.
4.49 kW. Kilowatt.
4.50 kWh. Kilowatt hour
4.51 Major Contracts. Major Contracts are: (i) the PMOA; (ii) each Interconnection
Agreement; (iii) Project fuel procurement and management agreements; (iv) agreements
for supplying the Project with water; (v) the lease of the Project site; and (vi) any other
contract or agreement relating to the Project, other than an NCPA Multiple Project
Contract, which has a total cost of more than five hundred thousand dollars and which is
designated as a Major Contract by the Participant Committee, as such contracts or
agreements may be entered into before, on or after the Effective Date and as they may be
amended, revised or supplemented from time to time in accordance with their respective
terms. No NCPA Multiple Project Contract shall constitute a Major Contract.
4.52 Mandatory Budget Amendment. The term Mandatory Budget Amendment shall have the
meaning ascribed to this term in Section 7.2.3.
4.53 MW. Megawatt.
4.54 MWh. Megawatt hours.
4.55 NCPA. The Northern California Power Agency, a joint exercise of powers agency,
created pursuant to the Act and the Joint Powers Agreement, and its successors.
4.56 NCPA Administrative Costs. That portion of the NCPA administrative, general and
occupancy costs and expenses, including those costs and expenses associated with the
operations, direction and supervision of the general affairs and activities of NCPA,
general management, treasury operations, accounting, budgeting, payroll, human
resources, information technology, facilities management, salaries and wages (including
retirement benefits) of employees, facility operation and maintenance costs, taxes and
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payments in lieu of taxes (if any), insurance premiums, fees for legal, engineering,
financial and other services, that are charged directly or apportioned to the development,
financing, construction, improvement, maintenance, operation or decommissioning of the
Project.
4.57 NCPA Multiple Proiect Contract. A contract entered into by NCPA which relates to
providing services, supplies or commodities with respect to the planning, financing,
constructing, managing, operating, maintaining and/or improving of electric generation
and/or transmission facilities, including related equipment, property, rights or facilities,
with respect to the Project and one or more other NCPA projects and/orprograms.
4.58 Non-DefaultingPpant. As of any time, each Participant which is not a Defaulting
Participant as of such time.
4.59 Non -Financed Capital Improvement. A Capital Improvement, the Costs of Construction
of which is to be paid with Contributions in Aid of Construction.
4.60 Non -Financed Capital Improvement Cost Component. The amounts described in
Section 17.1.4.
4.61 OandM Step-up. An increase in the amount payable by a Participant for Operation and
Maintenance Expenses beyond such Participant's GES as a result of a Payment Default
by another Participant which increase shall be calculated pursuant to Section 17.1.5.
4.62 OandM Step-up Cost Component. The amounts described in Section 17.1.5,
4.63 OandM Step-up Share. As of any time of calculation and with respect to each Non -
Defaulting participant, the quotient obtained by dividing (i) the GES of such
Non -Defaulting Participant by (ii) the sum of the GES of all Non -Defaulting Participants.
4.64 Operating Cost Component. The amounts described in Section 17.1.1.
4.65 Operating Fund. The fund to be established and maintained by NCPA pursuant to
Section 21.2.
4.66 Operating Reserve Fund. The fund to be established and maintained by NCPA pursuant
to Section 21.3.
4.67 Operating Reserve Requirement. As of any time, an amount determined in accordance
with the PMOA as equal to approximately 60 days of Operation and Maintenance
Expenses in the Project Annual Budget in effect as of such time.
4.68 Operation and Maintenance Expenses. The costs paid or incurred by NCPA for operating
and maintaining the Project including, but not limited to (a) all Fuel Costs; (b) all costs of
water supply in connection with the Project; (c) all costs and expenses of management of
the Project, including on-site operating staff and NCPA Administrative Costs; (d) all
costs and expenses of maintenance and repair of the Project, including all expenses
necessary or appropriate in the judgment of NCPA to maintain and preserve the Project in
good repair and working order; (e) payments in -lieu of taxes to any public agency in
connection with the Project; (f) all costs, expenses and charges of accountants, engineers
and other consultants; (g) any cost or expense paid by NCPA to comply with
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requirements of law applicable to the Project or the NCPA's ownership or operation
thereof or in any capacity in connection with the Project or any activity in connection
therewith; (h) costs of repairs, replacements and reconstruction of the Project that do not
entail Capital Improvements; (i) costs relating to litigation and other adversarial
proceedings (including attorneys' fees and disbursements and other amounts paid as a
result thereof); 0) insurance costs (including amounts to fund any self-insurance
program); (k) taxes and any other governmental charges required to be paid by NCPA
with respect to the Project; (1) any costs payable in connection with the output of the
Project; (m) all costs related to the conducting of the business of NCPA with respect to
the Project; and (n) any other costs relating to the operation or maintenance of the
Project, including without limitation any costs relating to funding or maintaining working
capital or similar reserves approved by NCPA and the Participant Committee.
4.69 ;. The term Outstanding, when used with respect to an obligation under an
Indenture, means the obligation has not been discharged in accordance with the
Indenture.
4.70 Participant Committee. The committee established in accordance with Section 8 of this
Agreement.
4.71 Participant Committee Approval. The term Participant Committee Approval shall have
the meaning ascribed to such term in Section 8.3.
4.72 Participant Monthly Power Costs. With respect to a Participant and a given month, the
costs payable by such Participant pursuant to Section 17.2.
4.73 Participants. Those entities (other than NCPA) executing this Agreement, together in
each case with their successors. Appendix A of this Agreement lists all Participants.
4.74 Pte. The term Party, when capitalized, means NCPA or a Participant and the term
Parties, when capitalized, means NCPA and all the Participants collectively.
4.75 Payment Default. The term Payment Default has the meaning ascribed to such term in
Section 22.1.1.
4.76 PMOA. The Lodi Energy Center Project Management and Operations Agreement among
NCPA and the Participants, relating to the Project, as it may be amended or supplemented
from time to time in accordance with its terms.
4.77 Point of Delivery. The first point of interface between the Project facilities and the
transmission facilities controlled by the entity which regulates the transmission of Energy
from the Project under applicable laws and regulations. As of the Effective Date, the
Point of Delivery is the first point of interface between the Project facilities and the
facilities controlled by the balancing authority for the control area where the Project is
located pursuant to the Western Electricity Coordinating Council.
4.78 Project. The Lodi Energy Center consisting of the Initial Facilities and all Capital
Improvements.
4.79 Project Annual Budget. For any Fiscal Year, the Project budget in effect for such Fiscal
Year pursuant to Section 7.2, including any amendments thereto.
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4.80 Proiect Net Revenues. For any period of time, the Project Revenues less the Operation
and Maintenance Expenses during such period and less the deposits to the Operating
Reserve Fund during such period.
4.81 Proiect Revenues. All gross income and revenue received or receivable by NCPA from
the ownership or operation of the Project, including all rates and charges for the Capacity
and Energy of the Project and the other services and facilities of the Project, all proceeds
of insurance covering business interruption loss relating to the Project, any Subsidy
received by NCPA and all other income and revenue howsoever derived by NCPA from
the ownership or operation of the Project or otherwise arising from the Project, including
the proceeds of sales of Project Capacity and/or Energy pursuant to Section 6 and
Section 22, but not including Contributions in Aid of Construction, Capital Contributions
or grants to the extent restricted by the donor to exclude the application to be made of
such grant pursuant to this Agreement.
4.82 Prudent Utility Practice. Any of the practices, methods and acts, which, in the exercise of
reasonable judgment in the light of the facts (including but not limited to the practices,
methods and acts engaged in or approved by a significant portion of the electrical utility
industry prior hereto) known at the time the decision was made, would have been
expected to accomplish the desired result at a reasonable cost consistent with sound
utility business and financial practices approved by the Western Electricity Coordinating
Council or the North American Electric Reliability Corporation (or any successors to
such organizations), reliability, safety and expedition, taking into account the fact that
Prudent Utility Practice is not intended to be limited to the optimum practice, method or
act to the exclusion of all others, but rather to be a spectrum of possible practices,
methods or acts which could have been expected to accomplish the desired result at a
reasonable cost consistent with reliability, safety and expedition. Prudent Utility Practice
includes due regard for manufacturers' warranties and requirements of governmental
agencies of competent jurisdiction and official electric industry reliability organizations
and shall apply not only to functional parts of the Project, but also to appropriate
structures, landscaping, painting, signs, lighting, other facilities and public relations
programs reasonably designed to promote public enjoyment, understanding and
acceptance of the Project.
4.83 Public Finance Contract. A contract or arrangement described in Section 5922 of the
California Government Code as in effect on the dated date of this Agreement.
4.84 Reconciliation Statement. A statement prepared by NCPA pursuant to Section 17.5 or
Section 17.6.
4.85 Required Costs. The: (i) Additional Cost of the Initial Facilities or a Financed Capital
Improvement which: (a) arise while any obligations remain Outstanding under an
Indenture; and (b) are either (y) required by law or governmental regulation, including
environmental regulation, for the operation of the Project or (z) necessary to complete the
Initial Facilities or the Financed Capital Improvement, as applicable, as a facility
performing the functions intended for the Initial Facilities or such Financed Capital
Improvement; and (ii) costs and expenses under a NCPA Multiple Project Contract when
the use of such NCPA Multiple Project Contract in connection with the Project has been
approved by the Participant Committee.
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4.86 Revenue Account. The account in the Revenue Fund with respect to an Indenture Group
as described in Section 21.1.
4.87 Revenue Fund. The fund to be established and maintained by NCPA pursuant to
Section 21.1
4.88 Subsidy. With respect to Taxable Subsidy Bonds, a payment from the United States with
respect to such Taxable Subsidy Bonds or the interest thereon or other benefit from the
United States (such as a tax credit) in connection with such Taxable Subsidy Bonds.
4.89 Taxable Bonds. Bonds, other than Taxable Subsidy Bonds, the interest on which is not
excluded from gross income for federal income tax purposes.
4.90 Taxable Subsidy Bonds. Bonds, the interest on which is not excluded from gross income
for federal income tax purposes and as to which NCPA or an owner of a Bond is entitled
to receive a Subsidy.
4.91 Tax -Exempt Bonds. Bonds, the interest on which is excluded from gross income for
certain federal income tax purposes.
4.92 Tax Status. With respect to a Tax -Exempt Bond, the exclusion from gross income for
federal income tax purposes of interest on such Bond and with respect to a Taxable
Subsidy Bond, the right of NCPA or the owner of a Bond to receive a Subsidy with
respect to such Bond.
4.93 Threshold Amount. An amount equal to $5,000,000 or such larger amount as shall be
approvedby the Participant Committee pursuant to Section 8.3.2.
4.94 Total Monthly Power Costs. The term Total Monthly Power Costs shall have the
meaning ascribed to such term in Section 17.1.
4.95 Trustee. A bank or other financial institution, if any, at the time serving as trustee under
an Indenture or, if there is no such trustee(s) under an Indenture, the respective lender or
counterparty or other parry entitled to receive payments under such Indenture.
4.96 Uncontrollable Forces. With respect to a Party hereto, any cause beyond the control of
such Party, and which by the exercise of due diligence such Party is unable to prevent or
overcome, including but not limited to, failure or refusal of any other person or entity to
comply with then current contracts, an act of god, fire, flood explosion, earthquake,
strike, sabotage, pestilence, an act of the public enemy (including terrorism), civil or
military authority including court orders, injunctions and orders of governmental
agencies with proper jurisdiction or the failure of such agencies to act, insurrection or
riot, an act of the elements, failure of equipment, a failure of any governmental entity to
issue a requested order, license, or permit, inability of any party or any person or entity
engaged in work on the Project to obtain or ship materials or equipment because of the
effect of similar causes on suppliers or carriers, or inability of NCPA to sell or issue its
Bonds pursuant to acceptable terms.
4.97 Rules of Construction. Except where the context otherwise requires, words of any gender
shall include correlative words of the other genders; words importing the singular number
shall include the plural number and vice versa; and words importing persons shall include
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firms, associations, trusts, corporations or governments or agencies or political
subdivisions thereof Unless otherwise indicated, references to a Section shall be to such
Section of this Agreement. The term "include" and its derivations are not limiting and
shall be construed as meaning "including but not limited to". The phrase "Participants in
an Indenture Group" and any similar phrase shall refer: (i) as to Indenture Group A, the
Indenture Group A Participants; (ii) as to Indenture Group B, the Indenture Group B
Participant; and (iii) as to Indenture Group C, the Indenture Group C Participant. The
phrase "an Indenture relating to an Indenture Group" and any similar phrase shall refer:
as to Indenture Group A, an Indenture with respect to Bonds or other obligations payable
from Indenture Group A Project Net Revenues; as to Indenture Group B, an Indenture
with respect to Bonds or other obligations payable from Indenture Group B Project Net
Revenues; and as to Indenture Group C, an Indenture with respect to Bonds or other
obligations payable from Indenture Group C Project Net Revenues.
The phrase "Project Revenues relating to an Indenture Group" and any similar phrase
shall refer: as to Indenture Group A, the Project Revenues relating to the Indenture
Group A Participants' GES; as to Indenture Group B, the Project Revenues relating to the
Indenture Group B Participant's GES; and as to Indenture Group C, the Project Revenues
relating to the Indenture Group C Participant's GES. The phrase "NCPA shall issue
Bonds for a Participant" or any similar phrase shall be construed to mean that NCPA
shall use its best reasonable efforts to issue Bonds payable from the ProjectNet Revenues
related to such Participant's GES, subject to any legal limitations on such issuance,
limitations applicable to the terms of such Bonds, the credit evaluations for the applicable
Indenture Group Participants' Enterprise Revenues and the market conditions applicable
to such issuance. References to Indentures herein shall apply only to Indentures under
which obligations thereunder remain Outstanding.
The phrase "approved by the Participant Committee" and any similar phrase in
connection with any action, procedure or agreement shall be construed to mean that such
action, procedure or agreement has received Participant Committee Approval.
The term "construction" include planning, designing, permitting, acquiring, constructing,
installing, equipping, and furnishing.
Unless otherwise specified herein, references to a day or days shall be to a calendar day
or days, as applicable. Unless otherwise specified herein, references to a month or months
shall be to a calendar month or months, as applicable.
Unless otherwise specified herein, the application at any time of a Participant's GES to
such Participant's right to Project Capacity and Energy, right to vote on Participant
Committee matters, obligation to make payments hereunder or any other matter
hereunder determined by reference to such Participant's GES shall refer to such
Participant's then current GES and/or the applicable percentage thereof at the time of
such application.
The captions or headings in this Agreement and the Table of Contents are for
convenience only and in no way define, limit or describe the scope and intent of any
provisions of this Agreement.
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5. REPRESENTATIONSAND WARRANTIES.
5.1 Representations and Warranties. NCPA and each Participant (except as noted below) do
hereby represent, warrant and covenant to the other Parties as of the Effective Date as
follows:
5.1.1 it is a duly organized and validly existing entity under the laws of the State of
California;
5.1.2 all authorizations necessary for it to enter into this Agreement and to legally
perform its obligations hereunder have been received and are in full force and
effect;
5.1.3 the execution, delivery and performance of this Agreement are within its powers,
have been duly authorized by all necessary actions and do not violate any of the
terms and conditions in its governing documents, any contracts to which it is a
party or any law, rule, regulation, or order applicable to it;
5.1.4 this Agreement constitutes its legally valid and binding obligation, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency and
equitable principles;
5.1.5 it is not insolvent or a debtor in a proceeding under the Bankruptcy Code and
there are no proceedings pending or being contemplated by it nor, to its
knowledge, threatened against it which would result in it being or becoming
bankrupt or insolvent;
5.1.6 there is not pending or, to its knowledge, threatened against it any legal
proceedings that could materially adversely affect its ability to perform its
obligations under this Agreement, the Major Contracts or other material
agreements relating to the Project;
5.1.7 no event of default or potential event of default with respect to it has occurred
and is continuing in any way material to its entering with and performing its
obligations under this Agreement and no such event or circumstance would occur
as a result of its entering into or performing its obligations under this Agreement;
5.1.8 it has made its own independent decision to enter into this Agreement and as to
whether this Agreement is appropriate or proper for it based upon its own
judgment, is not relying upon the advice or recommendations of any other Party
in so doing, and is capable of assessing the merits of and understanding, and
understands and accepts, the terms, conditions and risks of this Agreement;
5.1.9 each Participant, on its own behalf, represents, warrants and covenants that it has
entered into this Agreement in connection with the conduct of the business of its
Enterprise and it has the capacity or ability to take delivery of its GES of all
Capacity and Energy produced by the Project as contemplated under this
Agreement; and
5.1.10 NCPA represents, warrants and covenants that it has entered into this Agreement
in connection with the conduct of its business and it has the capacity or ability to
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manage, operate and to make available to each Participant its GES of all Capacity
and Energy produced by the Project as contemplated under this Agreement
6. SALE AND PURCHASE OF PROJECT OUTPUT. NCPA hereby sells to each Participant,
and each Participant hereby purchases from NCPA, on the terms and conditions set forth in this
Agreement, such respective Participant's GES of the Capacity of the Project and the Energy
associated with such Capacity. Subject to the provisions of Section 22 and Section 23, the
Energy from the Project shall be delivered to each Participant at the Point of Delivery.
Participants shall not be responsible for purchasing, nor have any right to purchase, capacity or
energy from any other facility owned by NCPA other than the Project unless a Participant and
NCPA expressly agree in writing to such purchase.
7. OBLIGATIONS OF NCPA AND PARTICIPANTS.
7.1 General Obligations of NCPA as Proiect Operator. NCPA shall be responsible for
planning, designing, obtaining applicable financing, constructing, improving, insuring,
contracting for, managing, administering, operating and maintaining the Project as
provided in this Agreement and the PMOA to effectuate the delivery of each Participant's
GES of Capacity and Energy to such Participant. In the event of any conflict between the
provisions of this Agreement and any provisions of the PMOA, the provisions of this
Agreement shall control.
7.2 Proiect Annual Budget.
7.2.1 Not less than 60 days prior to the beginning of each Fiscal Year, NCPA shall
prepare and submit to the Participant Committee the Project Annual Budget for
such Fiscal Year which shall set forth the estimated Total Monthly Power Costs
for each month of such Fiscal Year and the related Participant Monthly Power
Cost for each month in the Fiscal Year. The Project Annual Budget for a Fiscal
Year may be part of a multi-year budget containing such information. The
Project Annual Budget for a Fiscal Year may include formulas or other methods
for allocating NCPA Administrative Costs to the Project and other NCPA
projects and programs; provided that, unless another allocation method is
requested by NCPA and approved by the Participant Committee, NCPA shall use
the same allocation method for allocating each category of NCPA Administrative
Costs to the Project as for other NCPA proj ects and programs.
7.2.2 The Participant Committee shall promptly upon receipt thereof review and act to
approve or modify the proposed Project Annual Budget. The use of NCPA
Multiple Project Contracts to provide facilities, services or materials to the
Project shall be subject to the approval of the Participant Committee but the rates
and charges for such facilities, services or materials shall not be subject to the
approval of the Participant Committee. Any allocations of NCPA Administrative
Costs which are consistent with Section 7.2.1 shall not be subject to the approval
of the Participant Committee.
7.2.3 At any time during a Fiscal Year, NCPA may prepare an amendment to the then
current Project Annual Budget and submit such amendment to the Participant
Committee for review and approval. At any time during a Fiscal Year that the
Project Annual Budget for such Fiscal Year does not provide sufficient funds to
pay when due all Total Monthly Power Costs for such Fiscal Year, NCPA shall
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41009-16EJC/EJC 15
prepare and submit to the Participant Committee an amendment to the Project
Annual Budget (a "Mandatory Budget Amendment") which shall provide
sufficient Project Revenues to pay when due all the Total Monthly Power Costs
for such Fiscal Year. The Participant Committee shall be provided the
opportunity to review and discuss each Mandatory Budget Amendment with
NCPA, but the Participant Committee shall not have the power to disapprove a
Mandatory Budget Amendment.
7.2.4 The Project Annual Budget, and any amendment thereto other than a Mandatory
Budget Amendment, shall not go into effect until it has received Participant
Committee Approval. Each Mandatory Budget Amendment shall go into effect
immediately without the requirement for Participant Committee Approval.
7.2.5 If by the first day of a Fiscal Year a Project Annual Budget for such Fiscal Year
has not received Participant Committee Approval, then the Project Annual
Budget for the immediately preceding Fiscal Year, with such modifications as
shall be necessary to provide for all Total Monthly Power Costs for the then
current Fiscal Year, shall be the Project Annual Budget for the then current Fiscal
Year. Such Project Annual Budget shall be subject to Mandatory Budget
Amendments as provided in this Agreement.
7.2.6 In the event a Project Annual Budget for a Fiscal Year receives Participant
Committee Approval after the first day of such Fiscal Year, such Project Annual
Budget shall replace and supersede any Project Annual Budget which is in effect
for such Fiscal Year pursuant to Section 7.2.5.
7.3 Capital Improvements and Capital Budgets. NCPA shall develop and present to the
Participant Committee a description, together with an estimated budget of the Costs of
Construction, of all Capital Improvements which are necessary for the operation and
maintenance of the Project in accordance with Prudent Utility Practice and those other
Capital Improvements which NCPA determines will be of benefit to the Project. NCPA
shall present each proposed Capital Improvement, and its budget, to the Participant
Committee as early as NCPA deems practical. NCPA shall make a recommendation as to
whether each Capital Improvement should be a Financed Capital Improvement or a Non -
Financed Capital Improvement. Not less than 60 days prior to the beginning of each
Fiscal Year, NCPA shall prepare and submit to the Participant Committee a budget (the
"Capital Budget") for all Capital Improvements to be funded. Each Capital Budget shall
include the estimate of all Costs of Construction during the next succeeding three years.
The Capital Budget shall show the sources of funding, including Bonds, expected to be
available for the Costs of Construction of each Capital Improvement and the estimate of
funds to be collected from the Participants as Contributions in Aid of Construction for
Non -Financed Capital Improvements as a part of Total Monthly Power Costs during each
of the succeeding three Fiscal Years. Subject to the provisions of Section 8.10, each
Capital Improvement, other than a Capital Improvement related to Required Costs, and
each Capital Budget except for Required Costs, shall be subject to Participant Committee
Approval.
7.4 Reports. NCPA shall prepare and issue to the Participants the reports required by the
PMOA at the times required by the PMOA.
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7. S Records and Accounts. NCPA shall keep, or cause to be kept, accurate records and
accounts of each of the facilities comprising the Project, as well as the financial
transactions relating to the Project and of the operations of the Project, all as provided in
this Agreement, the PMOA and each Indenture. NCPA shall establish and maintain such
funds, accounts and subaccounts as are required by this Agreement and the Indentures
and in addition as NCPA may find necessary or convenient in connection with the
Project.
7.6 Periodic Audits. All transactions of NCPA relating to the Project with respect to each
Fiscal Year shall be subject to an annual audit. NCPA shall select certified accountants
experienced in electric utility accounting, and arrange for annual audits of the books and
accounting records with respect to the Project and its operations, and any cost
reimbursable consultant or cost reimbursable contractor or other professional relevant to
the construction or operation of the Project. Such audit may be a separate audit or
included as part of NCPA's general annual audit. Such audit shall be completed and
submitted to NCPA as soon as reasonably practicable after the close of the Fiscal Year.
NCPA shall promptly furnish to Participants copies of all applicable audits. No more
frequently than once every calendar year, a Participant may, at its sole cost and expense,
audit or cause to be audited the Project related books and cost records and any cost
reimbursable Consultant or cost reimbursable contractor or other professional relevant to
the construction, management or operation of the Project. Each such audit shall be
conducted at a mutually agreed upon time and place. NCPA shall cooperate fully in any
such audit.
7.7 Provide Participant Information. Each participant agrees to supply NCPA, upon request,
with such information and documentation with respect to the Project, and its operations
and finances, as NCPA shall reasonably determine to be necessary or desirable for the
design, development, financing, refinancing, construction, improvement, operation,
maintenance and decommissioning of the Project and to allow NCPA to respond to
requests for information with respect from any federal, state or local regulatory or other
authority with respect to the Project or such Participant's participation therein.
7.8 Provide NCPA Information. NCPA agrees to supply each Participant, upon request, with
such information and documentation with respect to the Project, and its operations and
finances, as such Participant shall reasonably determine to be necessary or desirable for
the design, development, financing, refinancing, construction, improvement, operation,
maintenance and decommissioningof the Project and to allow such Participantto respond
to requests for information with respect from any federal, state or local regulatory or
other authoritywith respect to the Project or NCPA's ownership or operation thereof.
7.9 Consultants and Advisors Available. NCPA shall make available to the Participant
Committee, upon its request, all Project related consultants and advisors, including
financial advisors and bond counsel, that are retained by NCPA, and such consultants and
advisors shall be authorized to consult with and advise the Participant Committee on
Project matters. All reports prepared by such consultants and advisors with respect to the
Project shall be provided to the Participant Committee; provided, however, that such
reports need not be provided to the Participant Committee, if, as set forth in an opinion of
counsel to NCPA and filed with the Participant Committee, such report is subject to
attorney-client privilege or attorney work product privilege and the provision of such
report to the Participant Committee would adversely affect such privilege; provided,
however, that under such circumstances the Parties shall cooperate in developing
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41009-16 EJC/EJC 17
nondisclosure agreements, joint defense agreements, or other mechanisms in order to
afford the Participant Committee the opportunity to view such privileged documents with
appropriate protections; provided that no such nondisclosure agreements, joint defense
agreements, or other mechanism shall result in a waiver of the attorney-client privilege.
7.10 Deposit of Insurance Proceeds. NCPA, in consultation with the Participant Committee,
shall promptly deposit the amount of any insurance proceeds received by NCPA as a
result of damage or destruction to all or any portion of the Project into appropriate Project
accounts, as shall be determined by NCPA in accordance with the applicable terms of
each Indenture.
8. PARTICIPANT COMMITTEE.
8.1 Establishment of Participant Committee. Subject to the provisions of Section 8.11, the
Participant Committee is established by this Agreement in order to provide for effective
cooperation and interchange of information, and to provide coordination on a prompt and
orderly basis, among the Participants and NCPA in connection with the various
management, financial, administrative, operational and technical matters which may arise
from time to time in connection with developing, financing, constructing, improving,
maintaining, operating and decommissioningthe Project. Except with respect to matters
relating to an Indenture or Bonds, or as otherwise provided by this Agreement, NCPA
shall comply with all lawful directions of the Participant Committee with respect to the
Project which have received Participant Committee Approval, while not stayed or
nullified, to the fullest extent authorized by law and to the extent such directions are not
inconsistent with, and do not impair NCPA's ability to perform its obligations under any
applicable Indenture. With respect to matters relating to an Indenture or Bonds for an
Indenture Group, NCPA shall comply with all lawful directions of the applicable
Indenture Group Participants which have received Indenture Group Approval from the
applicable Indenture Group, while not stayed or nullified, to the fullest extent authorized
by law and to the extent such directions are consistent with and do not impair NCPA's
ability to perform its obligations under any applicable Indenture.
8.2 Participant Committee Operations.
8.2.1 The Participant Committee shall consist of one representative from each
Participant which is not a Defaulting Participant. Each representative shall be
entitled to cast one vote in matters as to which a majority of Participants is used
to determine approval by the Participant Committee and a vote (expressed as a
percentage) equal to the GES of the Participant it represents in matters as to
which a percentage of GES is used to determine approval by the Participant
Committee. NCPA shall be entitled to one non-voting representative on the
Participant Committee and each subcommittee thereof. NCPA and each
Participant shall, within 30 days after the Effective Date, give notice to NCPA
and each other Participant of its representative on the Participant Committee. The
Participant Committee shall conduct its first meeting within 45 days of the
Effective Date.
8.2.2 Alternate representatives may be appointed for a Participant by similar notice to
act on the Participant Committee, or on any subcommittee established by the
Participant Committee, in the absence of the regular representative or to act on
specified occasions with respect to specified matters. Each Participant shall give
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41009-16 EJCEJC 18
notice to NCPA and each other participant of its alternate representative on the
Participant Committee. An alternate representative may attend all meetings of the
Participant Committee but may vote only if the representative for whom she/he
serves as alternate is absent and only one alternate representative of a Participant
may vote on any single motion or resolution. Each Participant shall promptly
give notice to the other Participants and NCPA of any changes in the designation
of its representative(s) and/or alternate representative(s) on the Participant
Committee or any subcommittee thereof, and NCPA shall promptly give notice
to the Participants of any changes in the designation of NCPA's representative on
the Participant Committee or any subcommittee thereof.
8.2.3 The Chairperson of the Participant Committee shall be designated by nomination
and vote of the Participant Committee. The Chairperson does not have a vote by
virtue of his/her office, but may vote as a representative or alternate
representative of one or more Participant(s) as provided above. The Chairperson
of the Participant Committee shall be responsible for calling and presiding over
meetings of the Participant Committee. The Chairperson shall promptly call a
meeting of the Participant Committee in any manner permitted by law at the
request of representatives of any two or more Participants. Participant
Committee meetings may be conducted and actions of the Participant Committee
may be taken by vote given in an assembled meeting or by telephone, video
conferencing, telegraph, letter, e-mail or by any combination thereof, to the
extent permitted by law.
8.2.4 A quorum for the Participant Committee taking any action shall consist of either:
(i) the representatives of a majority of the Non -Defaulting Participants; or (ii) the
representatives of Non -Defaulting Participants holding a GES of not less than a
majority of the aggregate GES of all Non -Defaulting Participants.
8.3 Participant Committee Approval.
8.3.1 The approval, disapproval or authorization by the Participant Committee of any
action, transaction, program or procedure relating to the Project having an
aggregate cost impact on the Participants of less than the Threshold Amount shall
be given by the vote for a resolution, motion, minute order or other appropriate
act noted in the meeting minutes to that effect of a majority of the quorum of the
meeting; provided, however, that if the representative of any Non -Defaulting
Participant requests, at any time prior to, at or within 10 days after the Participant
Committee meeting that such action, transaction, program or procedure be
approved, disapproved or authorized, that such action, transaction, program or
procedure be approved by a GES vote, then the approval, disapproval or
authorization of such action, transaction, program or procedure by the Participant
Committee shall be given by the vote for a resolution, motion, minute order or
other appropriate act noted in the meeting minutes to that effect by the
representatives of Non -Defaulting Participants then holding a GES of not less
than 65% of the GES of all then Non -Defaulting Participants; and provided
further that such 65% shall be reduced by the amount that the GES of each
Participant having a GES in excess of 34% exceeds 34% but in no event shall
such 65% be reduced below 50.10°/x.
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41009-16 EJC/EJC 19
8.3.2 The approval, disapproval or authorization by the Participant Committee of any
action, transaction, program or procedure relating to the Project having an
aggregate cost impact on the Participants at or above the Threshold Amount shall
be given by the vote for a resolution, motion, minute order or other appropriate
act noted in the meeting minutes to that effect of a majority of the quorum of the
meeting; provided, however, that if the representative of any Non -Defaulting
Participant requests, at any time prior to, at or within 10 days after the Participant
Committee meeting that such action, transaction, program or procedure was
approved, disapproved or authorized, that such action, transaction, program or
procedure be approved by a GES vote, then the approval, disapproval or
authorization of such action, transaction, program or procedure by the Participant
Committee shall be given by the vote for a resolution, motion, minute order or
other appropriate act noted in the meeting minutes to that effect by the
representatives of Non -Defaulting Participants then holding a GES of not less
than 75% of the GES of all then Non -Defaulting Participants; and provided
further that such 75% shall be reduced by the amount that the GES of each
Participant having a GES in excess of 24% exceeds 24% but in no event shall
such 75% be reduced below 50.10%.
8.3.3 Approval or authorization by the Participant Committee in accordance with this
Section 8.3 shall constitute "Participant Committee Approval" of an action,
transaction, program or procedure. Disapproval by the Participant Committee in
accordance with this Section 8.3 shall establish that an action, transaction,
program or procedure has failed to receive "Participant Committee Approval." A
Participant Committee Approval shall be evidenced by a copy of the resolution,
motion or minute order approving, disapproving or authorizing the action,
transaction, program or procedure certified by the secretary or an assistant
secretary of the Participant Committee or a copy of the minutes of the Participant
Committee meeting, or an extract thereof, with respect to the resolution, motion
or minute order or other act approving, disapproving or authorizing the action,
transaction, program or procedure certified by the Secretary or an assistant
Secretary of the Participant Committee.
8.4 Indenture Group Approval.
8.4.1 The approval or authorization of any action, transaction, program or procedure
relating to Bonds or an Indenture by the Indenture Group A Participants shall be
given at a meeting of the representatives to the Participant Committee of the
Indenture Group A Participants. A quorum for the Indenture Group A
representatives to the Participant Committee taking any action shall consist of
either: (i) the representatives of a majority of the Non -Defaulting Indenture
Group A Participants; or (ii) the representatives of Non -Defaulting Indenture
Group A Participants holding a GES of not less than a majority of the aggregate
GES of all Non -Defaulting Indenture Group A Participants. One of the
representatives to the Participant Committee of the Indenture Group A
Participants shall be appointed Secretary for the meeting and shall prepare
written minutes of the meeting. The approval or authorization of any action,
transaction, program or procedure relating to Bonds or an Indenture by the
Indenture Group A Participants shall be given by the approving vote for a
resolution, motion, minute order or other appropriate act noted in the meeting
minutes to that effect of a majority of the quorum of the meeting; provided,
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however, that if the representative of any Non -Defaulting Indenture Group A
Participant requests, at any time prior to, at or within 10 days after the Indenture
Group A Participant Committee representatives meeting, that such action,
transaction, program or procedure be approved by a GES vote, then the approval
or authorization of such action, transaction, program or procedure by the
Indenture Group A Participant Committee representatives shall be given by the
approving vote for a resolution, motion, minute order or other appropriate act
noted in the meeting minutes to that effect by the representatives of Non -
Defaulting Indenture Group A Participants then holding a GES of not less than
65% of the GES of all then Non -Defaulting Indenture Group A Participants;
except that, for the purposes of this Section 8.4.1 only, the GES of any Non -
Defaulting Indenture Group A Participant in excess of 35% shall be reduced to
35% so the representative of a single Non -Defaulting Indenture Group A
Participant shall not be able to prevent the approval or authorization of any
action, transaction, program or procedure by the Indenture Group A Participant
Committee representatives pursuant to this Section 8.4.1.
8.4.2 Approval by the Indenture Group A Participants in accordance with this Section
8.4 shall constitute "Indenture Group Approval" of such action, transaction,
program or procedure by the Indenture Group A Participants. An Indenture
Group Approval by the Indenture Group A Participants shall be evidenced by a
copy of the resolution, motion or minute order approving the action, transaction,
program or procedure certified by the Secretary of the meeting at which such
action was taken or a copy of the minutes of the Indenture Group A Participants'
meeting, or an extract thereof, with respect to the resolution, motion or minute
order or other act approving the action, transaction, program or procedure
certified by the Secretary of the meeting at which such action was taken.
8.5 Participant Committee Responsibilities. Subject to the limitations on Participant
Committee actions and approvals contained in this Agreement, the Participant Committee
shall have the following responsibilities:
8.5.1 Elect a Chairperson, Vice Chairperson, Secretary and such other Participant
Committee positions as deemed necessary and prudent, to conduct the business
of the Participant Committee pursuant to this Agreement.
8.5.2 Establish a schedule of Participant Committee meetings, which shall be held at
least four (4) times each year, and the permitted locations for such meetings.
8.5.3 Exercise general supervision over the subcommittees established by the
Participant Committee.
8.5.4 Perform such other functions and duties as may be provided for under the PMOA
or as may otherwise be appropriate or beneficial to the Project and not in conflict
with this Agreement or any Indenture.
8.6 Subcommittees. The Participant Committee may establish, as needed, subcommittees
including, but not limited to, fuel, auditing, legal, contracts, financial, engineering,
operating, insurance, environmental and public information subcommittees. The
authority, membership, and duties of any subcommittee shall be established by the
Participant Committee; provided, however, such authority, membership or duties shall
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not conflict with the provisions of this Agreement or any Indenture or any other Project -
related agreements. Each such subcommittee shall take direction from and be responsible
to the Participant Committee.
8.7 Written Record. All actions, resolutions, determinations and reports made by the
Participant Committee and each subcommittee thereof shall be set forth in a written
record and/or meeting minutes by a person or persons designated by the Participant
Committee to keep such written record.
8.8 Costs of Consultants. The Participant Committee shall not employ consultants or others
in connection with the activities of the Participant Committee but the Participant
Committee may direct NCPA to employ consultants and others in connection with such
activities and the costs thereof shall be included in the Project Costs of Construction or
Total Monthly Power Costs, as appropriate.
8.9 Representative's Expenses. Any expenses incurred by any representative or alternate
representative of any Participant or group of Participants serving on the Participant
Committee, any subcommittee thereof or any other Project committee or subcommittee in
connection with his/her duties on such committee or subcommittee shall be paid by the
Participant or Participants which he/she represents and shall not be payable under this
Agreement unless the Participant Committee has taken appropriate action to authorize
payment for such expenses to a representative or alternative representative for the
performance of a Project related activity.
8.10 Inaction by Participant Committee. If the Participant Committee is unable or fails to act
with respect to any matter which it is authorized to determine, resolve, approve,
disapprove or otherwise act upon within seven days of the initial Participant Committee
meeting wherein such matter was discussed and an opportunity to act was presented, or
within any shorter time limits specified in this Agreement or the PMOA, then (i) if urgent
action is required in the judgment of NCPA, (ii) the Participant Committee has not
disapproved such action and (iii) the action is in furtherance of the purposes of this
Agreement, NCPA is authorized to take such action, in a manner consistent with Prudent
Utility Practice, as NCPA in its sole discretion deems necessary for its timely
performance under this Agreement or the PMOA pending the resolution of any such
inability or failure of the Participant Committee to act.
8.11 Compliance With Indentures. It is recognized by NCPA and Participants that the
planning, financing, constructing, managing, operating and maintaining of the Project
must comply in all respects with requirements of all applicable Indentures, and all
licenses, permits and regulatory provisions necessary for such planning, financing,
constructing, operating managing and maintaining, and it is therefore agreed that,
notwithstanding any other provision of this Agreement, no action by the Participant
Committee shall require NCPA to act in any manner inconsistent with any such
requirements, or to refrain from acting as thereby required, and if the Participant
Committee or NCPA shall fail to make recommendations or act with respect to any
matter in connection with an action that is required to be taken pursuant to any of the
foregoing, NCPA shall take such action(s), consistent with Prudent Utility Practice, as it
deems appropriate to assure compliance with the foregoing.
9. CHARACTER AND CONTINUITY OF SERVICE.
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9.1 Curtailment of Deliveries. NCPA may temporarily interrupt operation of the Project
and/or curtail deliveries of Capacity and Energy to Participants (in proportion to the GES
of each Participant to the GES of all Participants) if NCPA determines that such
interruption or curtailment is necessary in case of emergencies or in order to install
equipment in or make repairs to or replacements, investigations or inspections of Project
facilities or to perform other maintenance work on Project facilities; provided, however,
that NCPA shall use reasonable efforts to keep such interruptions or curtailment to a
reasonable time and schedule such interruption or curtailment as provided in the PMOA.
No such interruption or curtailment shall relieve any Participant of its obligations to make
payments under this Agreement.
9.2 Uncontrollable Forces. NCPA shall not be required to provide, nor shall NCPA be liable
for failure to provide, Capacity or Energy under this Agreement to the extent such failure
or the cessation or curtailment of or interference with the service is caused by
Uncontrollable Forces; provided, however, that no Participant shall be thereby relieved of
its obligations to make payments under this Agreement.
10. PROJECT CAPACITY AND ENERGY AVAILABILITY
10.1 Availability of Project. NCPA shall make available or cause to be made available, and
each Participant shall be entitled to receive, such Participant's GES of the Capacity of the
Project and the Energy associated with such Capacity, in each case on the terms and
conditions of this Agreement. Subject to the terms and conditions of this Agreement, and
the lawful direction of the Participant Committee pursuant to this Agreement, NCPA
shall operate the Project, or cause the Project to be operated, in a manner consistent with
the purposes of this Agreement and in conformity with the principles contained in the
PMOA, as the same may be amended and supplemented from time to time.
10.2 Availability of Services. NCPA will remain available to do all things necessary and
practical to deliver or cause to be delivered to or for each Participant, such Participant's
GES of the Capacity and Energy of the Project. Such delivery of Project Energy will be
at the Point of Delivery. Wheeling or delivery services provided by NCPA to deliver
Project Energy to Participants to any location other than the Point of Delivery shall be at
the requesting Participant's sole expense and as provided in service schedules and/or
protocols developed pursuant to the PMOA and approved by NCPA and the applicable
Participant.
11. FUEL PROCUREMENT. NCPA shall procure, schedule and balance, or shall cause the
procurement, scheduling, and balancing of, fuel supplies to operate the Project in a manner
consistent with the purposes of this Agreement and in conformity with the principles contained in
the PMOA, as the same may be amended and supplemented from time to time.
12. METERING. NCPA, pursuant to the PMOA, shall provide for installation, maintenance and
calibration of meters and shall provide, or cause to be provided, all necessary metering equipment
for determining the quantity of Project Energy delivered; provided, however, that any Participant
may, by arrangement with NCPA and at its own expense, check existing metering or metering
records and/or, with the approval of the Participant Committee, install additional metering
equipment.
13. RESTRICTIONS ON DISPOSITION.
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13.1 Sales of Capacity and Energy by Participants. Subject to the restrictions contained in
Section 13 and the rights of NCPA under Section 22, each Participant may sell or
otherwise dispose of the Capacity and/or Energy associated with such Participant's GES;
provided that before making any such sale or other disposition for a period exceeding 12
months, each Participant shall offer such Capacity and/or Energy to the Non -Defaulting
Participants (on the same terms and conditions it offers such Capacity and/or Energy to
others) in the priority set forth in Section 22.2.5 in the case of a sale or other disposition
by an Indenture Group A Participant and in the priority set forth in Section 22.2.6 in the
case of a sale or other disposition by the Indenture Group B Participant or the Indenture
Group C Participant, in each case as if NCPA were offering Capacity and Energy in a
Default Mitigation Sale.
13.2 Limitations Concerning; Private Use; Transfer of Capacity and Energy. Each Participant
within an Indenture Group recognizes that Bonds issued with respect to such Indenture
Group may be Taxable Bonds, Taxable Subsidy Bonds, or Tax -Exempt Bonds and that
any Taxable Subsidy Bonds and or Tax -Exempt Bonds shall be subject to the respective
provisions of federal income tax law that limit, among other things, the arrangements
permitted with respect to sale, assignment, delegation or other disposition of GES,
Capacity and/or Energy. To the extent that a Participant's GES has been financed with
the proceeds of Taxable Subsidy Bonds and/or Tax -Exempt Bonds, such Participant shall
comply with the tax covenants contained in the respective Indentures relating to such
Bonds including the private use permitted under such covenants. Except as provided in
Section 22, no sale, assignment, delegation or other disposition of all or any portion of
any Participant's Project rights and obligations hereunder, including Capacity and/or
Energy, that have been financed with the proceeds of Taxable Subsidy Bonds and/or Tax -
Exempt Bonds, shall be effective until (i) such Participant shall have given prior written
notice thereof to NCPA; and (ii) NCPA's bond counsel shall have rendered an opinion to
the effect that (A) such sale, assignment, delegation or other disposition will not
adversely affect the Tax Status of any such Taxable Subsidy Bond or Tax -Exempt Bond,
including as a result of any remedial action taken or to be taken in connection with such
sale, assignment, delegation or other disposition; and (B) such sale, assignment,
delegation or other disposition is within any private use restriction or other limitation on
such sale, assignment, delegation or other disposition with respect to such Participant's
GES of Project Capacity and/or Energy (and not the Project as a whole) in connection
with such Taxable Subsidy Bonds and/or Tax -Exempt Bonds. Notwithstanding the
immediately preceding sentence, each Participant may (without giving such notice or
obtaining such opinion) contract to provide Energy and/or Capacity to which it is entitled
hereunder in a transaction which complies with tax -related guidelines established by
NCPA and approved by NCPA's bond counsel from time to time pursuant to this Section
13.2.
13.3 Participant Liability as Result of Loss of Tax Status of Bonds. If a Participant's Project
GES has been financed with the proceeds of Taxable Subsidy Bonds and/or Tax -Exempt
Bonds, and such Participant's action (or inaction) (i) adversely affects the Tax Status of
any such Taxable Subsidy Bond or Tax -Exempt Bond or (ii) requires any action or
payments by NCPA or any other Participant concerning such Tax Status, then such
Participant shall be responsible for all costs related to its action (or inaction) and any
related actions or payments by NCPA or any other Participant (including, without
limitation, payments to Bondholders, payments to the Internal Revenue Service, costs
incident thereto, audit expenses, and related attorney and consultants' fees).
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13.4 Restrictions on Elimination of Payment Obligations. So long as any obligations remain
Outstanding under an Indenture, no sale, assignment or other disposition of a
Participant's GES shall release such Participant from its obligations under this
Agreement except to the extent of moneys received by NCPA as a result of such sale,
assignment or other disposition of GES, less NCPA's related costs and expenses;
provided however, that such obligations may be eliminated or reduced if no obligations
remain Outstanding under an Indenture and the Participant Committee and NCPA's
Commission determineto eliminate or reduce such obligations, which determination shall
not be unreasonably withheld.
13.5 Restrictions on Disposition of Participant's Entire System. A Participant shall not sell,
lease or otherwise dispose of all or substantially all of its Enterprise except on 90 days
prior written notice to the other Parties and, in any event, shall not so sell, lease or
otherwise dispose of the same unless the following conditions shall be met: (i) such
Participant shall assign its GES to such purchaser, lessee or disposee of said Enterprise,
and such purchaser, lessee or disposee shall assume and agree to fully perform and
discharge all the Participant's obligations hereunder; (ii) such sale, lease or other
disposition shall not, in and of itself, cause the rating of any affected Bonds for the
Indenture Group of which such Participant is a member to be downgraded, suspended or
withdrawn (which fact shall be evidenced by letters of the rating agencies then rating
such Bonds); (iii) NCPA shall determine (which determination shall not be unreasonably
withheld) that such sale, lease or other disposition will not materially adversely affect the
value of this Agreement as security for the payment of any applicable Indenture Cost
Component; and (iv) unless waived by NCPA after consultation with its bond counsel,
NCPA's bond counsel shall render an opinion to the effect that such sale, lease or other
disposition of the Participant's GES financed with the proceeds of Taxable Subsidy
Bonds and/or Tax -Exempt Bonds will not adversely affect the Tax Status of such Taxable
Subsidy Bonds and/or Tax -Exempt Bonds, including as a result of any remedial action
taken or to be taken in connection with such sale, lease or other disposition. NCPA, such
Participant and such Participant's purchaser, lessee or disposee shall execute a
supplement to this Agreement and any other necessary Project -related documents, as
determined by NCPA in consultation with its general counsel and bond counsel, to reflect
the transfer of the Participant's GES. All costs related to such sale, lease or disposition
shall be paid by the Participant requesting such action.
14. COST OF CONSTRUCTION OF INITIAL FACILITIES.
14.1 Allocation of Costs of Construction. Each Participant's share of the Costs of Construction
of the Initial Facilities shall be equal to such Participant's GES of such Costs of
Construction. The Participants in each Indenture Group shall satisfy their respective
obligations with respect to the Costs of Construction of the Initial Facilities either by
authorizing NCPA to issue Bonds to provide funds for such share or by delivering to
NCPA Capital Contributions as provided in Section 14.6.
14.2 Additional Costs. NCPA shall propose and submit to the Participant Committee its
estimate of any Additional Costs for the Initial Facilities as soon as practical. The
Additional Costs of the Initial Facilities, other than Required Costs, are subject to
Participant Committee Approval. Within 30 days of the Participant Committee Approval
of such estimate of Additional Cost of the Initial Facilities, or the submission to the
Participant Committee in the case of Required Costs, NCPA shall provide the Indenture
Group B Participant and the Indenture Group C Participant with a Funding Notice stating
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41009-16 EJCEJC 25
the amount needed for such Participant's share of such Additional Cost, the date or dates
when such amounts are due and the date that Participant must provide NCPA a request to
issue Bonds to provide funds for such Participant's share of such Additional Costs.
14.3 Indenture Group A. NCPA shall issue Bonds to finance the Indenture Group A
Participants' share of the Costs of Construction of the Initial Facilities. Such Bonds shall
provide the funds necessary for the Indenture Group A Participants' share of the Costs of
Construction of the Initial Facilities and all Financing Costs related to such Bonds and all
Indenture Deposits required in connection with such Bonds.
14.4 Indenture Group B. NCPA shall issue Bonds to finance the Indenture Group B
Participant's share of the Initial Estimate of the Costs of Construction of the Initial
Facilities. Such Bonds shall provide the funds necessary for the Indenture Group B
Participant's share of the Initial Estimate of the Costs of Construction of the Initial
Facilities and all Financing Costs related to such Bonds and all Indenture Deposits
required in connection with such Bonds. If there are Additional Costs for the Initial
Facilities, at the request of the Indenture Group B Participant, NCPA shall issue Bonds to
finance the Indenture Group B Participant's share of such Additional Costs, all Financing
Costs related to such Bonds and all Indenture Deposits required in connection with such
Bonds; provided that if, by the date specified in the applicable Funding Notice, the
Indenture Group B Participant does not submit written request to NCPA to issue Bonds
for such Participant's share of such Additional Costs, Financing Costs and Indenture
Deposits, the Indenture Group B Participant shall be deemed to have delivered a Capital
Contribution Notice with respect to such Additional Costs on the date specified in the
Funding Notice which Capital Contribution shall be due and payable on the date
specified in the Funding Notice.
14.5 Indenture Group C. The Indenture Group C Participant hereby delivers its Capital
Contribution Notice with respect to the Initial Estimate of the Costs of Construction of
the Initial Facilities. If there are Additional Costs for the Initial Facilities, at the request
of the Indenture Group C Participant, NCPA shall issue Bonds to finance the Indenture
Group C Participant's share of such Additional Costs, all Financing Costs related to such
Bonds and all Indenture Deposits required in connection with such Bonds; provided that
if, by the date specified in the applicable Funding Notice, the Indenture Group C
Participant does not submit written request to NCPA to issue Bonds for such Participant's
share of such Additional Costs, Financing Costs and Indenture Deposits, the Indenture
Group C Participant shall be deemed to have delivered a Capital Contribution Notice
with respect to such Additional Costs on the date specified in the Funding Notice which
Capital Contribution shall be due and payable on the date specified in the Funding
Notice.
14.6 Capital Contribution Notice. At any time prior to the date for the delivery of a request to
NCPA to issue Bonds set forth in a Funding Notice for any Additional Costs of the Initial
Facilities the Indenture Group B Participant and/or the Indenture Group C participant
may deliver a Capital Contribution Notice with respect to such Costs of Construction.
14.7 Capital Contributions.The Capital Contribution related to each Capital Contribution
Notice shall be either: (i) paid to NCPA by the first date set forth in the applicable
Funding Notice; or (ii) deposited with a trustee reasonably acceptable to NCPA by the
first date set forth in the applicable Funding Notice on terms which permit the release of
funds to NCPA upon the trustee's receipt of a requisition signed by NCPA setting forth
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41009-16 EJC/EJC 26
the Costs of Construction to be paid with such withdrawal and certifying that the amount
of such withdrawal is to be applied within 30 days of such withdrawal to the payment of
the Costs of Construction described in the requisition and that the amount of such
withdrawal does not exceed the GES of the Indenture Group B Participant or the
Indenture Group C Participant, as applicable, with respect to the Costs of Construction
described in the requisition. Amounts held by a trustee to make Capital Contributions
shall not be available for any purpose other than making the Capital Contributions
required by the applicable Funding Notice unless and until NCPA submits a certificate to
the applicable trustee to the effect that the amounts so held by such trustee are no longer
required to pay the Costs of Construction for which such deposit was made because all
Costs of Construction of the applicable Initial Facilities or Financed Capital Improvement
have been paid or the construction of such Initial Facilities or Financed Capital
Improvement have been terminated.
15. COST OF CONSTRUCTION OF NON -FINANCED CAPITAL IMPROVEMENTS.
15.1 Allocation of Costs of Construction.Each Participant's share of the Costs of Construction
of the Non -Financed Capital Improvements shall be equal to such Participant's GES of
such Costs of Construction. Each Participant shall satisfy its respective obligations with
respect to the Costs of Construction of all Non -Financed Capital Improvements by
making Contributions in Aid of Construction included in such Participant's Billing
Statements.
15.2 Contributions in Aid of Construction. The Contributions in Aid of Construction for a
Non -Financed Capital Improvement shall be net of all earnings on the investment of the
unspent Contributions in Aid of Construction held by NCPA or by a Trustee on behalf of
NCPA and all receipts, revenues and other moneys received by NCPA from the sale of
surplus equipment, materials and supplies associated with such Non -Financed Capital
Improvement.
16. COST OF CONSTRUCTION OF FINANCED CAPITAL IMPROVEMENTS.
16.1 Allocation of Costs of Construction. Each Participant's share of the Costs of
Construction of each Financed Capital Improvement shall be equal to such Participant's
GES. The Participant(s) in each Indenture Group shall satisfy their respective obligations
with respect to the Costs of Construction of a Financed Capital Improvement either by
having NCPA issue Bonds to provide funds for such share or by delivering to NCPA
Capital Contributions as provided in Section 16.
16.2 Costs of Construction. NCPA shall propose and submit to the Participant Committee its
estimate of the Costs of Construction of each Financed Capital Improvement and its
estimate of any Additional Costs for such Financed Capital Improvement as soon as
practicable. The Costs of Construction of each Financed Capital Improvement, other than
Required Costs, are subject to Participant Committee Approval. Within 30 days of the
Participant Committee approval of such estimates, or the submission to the Participant
Committee in the case of Required Costs, NCPA shall provide each Participant in
Indenture Group B and Indenture Group C with a Funding Notice stating the amount
needed for such Participant's share of such Costs of Construction, the date or dates on
which that amount is due and the date by which the Participant must provide NCPA a
request for NCPA to issue Bonds for such Participant's share of such Costs of
Construction.
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41009-16 EJC/EJC 27
16.3 Indenture Group A. NCPA shall issue Bonds to finance the Indenture Group A
Participants' shares of the Costs of Construction of all Financed Capital Improvements.
Such Bonds shall provide the funds necessary for the Indenture Group A Participants'
share of the Costs of Construction of such Financed Capital Improvements and all
Financing Costs related to such Bonds and all Indenture Deposits required in connection
with such Bonds.
16.4 Indenture Group B. NCPA shall issue Bonds to finance the Indenture Group B
Participant's share of the Initial Estimate of the Costs of Construction of each Financed
Capital Improvement, at the request of the Indenture Group B Participant; provided that
if, by the date specified in the applicable Funding Notice, the Indenture Group B
Participant does not submit written request to NCPA to issue Bonds for such Participant's
share of the Initial Estimate of the Costs of Construction of the Financed Capital
Improvement, the Indenture Group B Participant shall be deemed to have delivered a
Capital Contribution Notice with respect to such Costs of Construction on the date
specified in the Funding Notice which Capital Contribution shall be due and payable on
the date or dates specified in the Funding Notice. Such Bonds shall provide the funds
necessary for the Indenture Group B Participant's share of the Initial Estimate of the
Costs of Construction of the Financed Capital Improvement and all Financing Costs
related to such Bonds and all Indenture Deposits required in connection with such Bonds.
If there are Additional Costs for the Financed Capital Improvement, at the request of the
Indenture Group B Participant, NCPA shall issue Bonds to finance the Indenture Group B
Participant's share of such Additional Costs, all Financing Costs related to such Bonds
and all Indenture Deposits required in connection with such Bonds; provided that if, by
the date specified in the applicable Funding Notice, the Indenture Group B Participant
does not submit written request to NCPA to issue Bonds for such participant's share of
such Additional Costs, Financing Costs and Indenture Deposits, the Indenture Group B
Participant shall be deemed to have delivered a Capital Contribution Notice with respect
to such Additional Costs on the date specified in the Funding Notice which Capital
Contribution shall be due and payable on the date or dates specified in the Funding
Notice.
16.5 Indenture Group C. NCPA shall issue Bonds to finance the Indenture Group C
Participant's share of the Initial Estimate of the Costs of Construction of each Financed
Capital Improvement at the request of the Indenture Group C Participant; provided that if,
by the date specified in the applicable Funding Notice, the Indenture Group C Participant
does not submit written request to NCPA to issue Bonds for such Participant's share of
the Initial Estimate of the Costs of Construction of the Financed Capital Improvement,
the Indenture Group C Participant shall be deemed to have delivered a Capital
Contribution Notice with respect to such Costs of Construction on the date specified in
the Funding Notice which Capital Contribution shall be due and payable on the date or
dates specified in the Funding Notice. Such Bonds shall provide the funds necessary for
the Indenture Group C Participant's share of the Initial Estimate of the Costs of
Construction of the Financed Capital Improvement and all Financing Costs related to
such Bonds and all Indenture Deposits required in connection with such Bonds. If there
are Additional Costs for the Financed Capital Improvement, at the request of the
Indenture Group C Participant, NCPA shall issue Bonds to finance the Indenture Group C
Participant's share of such Additional Costs, all Financing Costs related to such Bonds
and all Indenture Deposits required in connection with such Bonds; provided that if, by
the date specified in the applicable Funding Notice, the Indenture Group C Participant
does not submit written request to NCPA to issue Bonds for such Participant's share of
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41009-16 EJCEJC 28
such Additional Costs, Financing Costs and Indenture Deposits, the Indenture Group C
Participant shall be deemed to have delivered a Capital Contribution Notice with respect
to such Additional Costs on the date specified in the Funding Notice which Capital
Contribution shall be due and payable on the date or dates specified in the Funding
Notice.
16.6 Capital Contribution Notice. At any time prior to the date for the delivery of a request to
NCPA to issue Bonds set forth in a Funding Notice for the Initial Estimate of the Costs of
Construction of a Financed Capital Improvement or any Additional Costs of a Financed
Capital Improvement, including all related Financing Costs and Indenture Deposits, the
Indenture Group B Participant and/or the Indenture Group C Participant may deliver a
Capital Contribution Notice with respect to such Costs of Construction. All Capital
Contributions in connection with a Financed Capital Improvement shall be held and
applied as provided in Section 14.7.
17. CHARGES AND BILLINGS.
17.1 Total Monthly Power Costs. In the month preceding the first month when any of the
Total Monthly Power Costs are not to be paid from other available funds, NCPA shall
prepare and send to the Participants a Billing Statement, as provided in Section 17.3,
identifying the Total Monthly Power Costs to be paid by each Participant. Such Billing
Statement shall separately identify each component of the Total Monthly Power Costs as
set forth in this Section 17.1. Such Billing Statement shall be due and payable as
provided in Section 17.3.
All of NCPA's Project related costs for any month resulting from the development,
construction, financing, ownership, management, operation and maintenance of the
Project and renewals and replacements to the Project, including all Capital Improvements,
to the extent not paid from the proceeds of Bonds, Contributions in Aid of Construction
or Capital Contributions, shall constitute "Total Monthly Power Costs" for such month.
NCPA shall apply, as a credit against the Operating Cost Component of Total Monthly
Power Costs, all receipts, revenues and other moneys relating to the Project received by
NCPA from the sale of surplus equipment, materials, supplies or other such sources not
otherwise applied as a credit against the Costs of Construction. Total Monthly Power
Costs shall consist of (i) an Operating Cost Component (described in Section 17.1.1); (ii)
a Fuel Cost Component (described in Section 17.1.2); (iii) an Indenture Cost Component
(described in Section 17.1.3); (iv) a Non -Financed Capital Improvement Cost Component,
if applicable (described in Section 17.1.4); and (v) an OandM Step -Up Cost Component,
if applicable (described in Section 17.1.5); all of which shall include, but not be limited to,
the items of cost and expense referred to in this Section 17.1 that are accrued or paid by
NCPA during each Month of each Fiscal Year.
In the event any Fiscal Year shall consist of fewer than twelve months, the fraction set
forth in this Section 17.1 shall be adjusted accordingly and, in the event of any revision of
the Project Annual Budget after the commencement of any Fiscal Year, the amounts
determined pursuant to this Section 17.1 shall be appropriately adjusted so that any
increase or decrease in the portion of the Project Annual Budget applicable to the relevant
component of the Total Monthly Power Cost shall be evenly apportioned over the
remaining months of such Fiscal Year; provided that the Fuel Cost Component may be
revised to reflect the billing procedures adopted pursuant to Section 17.1.2.2.
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41009-16EJC/EJC 29
17.1.1 Operating Cost Component. The Operating Cost Component of the Total
Monthly Power Costs for each month applies to all Participants based upon their
respective GES. The Operating Cost Component for a month shall consist of the
sum of. (i) one -twelfth of the Operation and Maintenance Expenses, other than
Fuel Costs, for the Fiscal Year included in the then current Project Annual
Budget and not otherwise included under Section 17.6 or Section 17.9; plus (ii)
one -twelfth of the Operating Reserve Requirement; provided that the Operating
Cost Component shall not include any amount with respect to the Operating
Reserve Requirement to the extent there is on deposit in the Operating Reserve
Fund an amount equal to the Operating Reserve Requirement, and provided
further, that the Operating Cost Component for a month shall not be less than the
amount required to pay (a) the accrued and unpaid Operation and Maintenance
Expenses, other than Fuel Costs, for which funds are not available in the
Operating Fund and (b) the expected Operation and Maintenance Expenses for
the next succeeding month.
17.1.2 Fuel Cost Component.
17.1.2.1 Except as provided in Section 17.1.2.2, the Fuel Cost Component of
Total Monthly Power Costs for a month applies to all Participants
based upon their respective GES. The Fuel Cost Component shall
consist of the Fuel Cost included in the then current Project Annual
Budget for the next succeeding month and not otherwise included
under Section 17.6 or Section 17.9.
17.1.2.2 Notwithstanding the billing procedures set forth in Section 17.1.2.1
and subject to the requirements of Section 8.11 and the requirement
that all Fuel Costs for each month be billed to the Participants, the
Participant Committee may approve alternative billing procedures
for billing Fuel Costs in the PMOA. The alternative billing
procedures for Fuel Costs may include billing for Fuel Costs more
frequently than monthly, billing Fuel Costs based on actual costs
rather than budgeted costs, more frequent reconciliations than
provided in Section 17.6 of actual Fuel Costs with billings of Fuel
Costs based on estimates and provision for the delivery of fuel to
the Project by a Participant. If such alternative basis for billing Fuel
Costs is included in the PMOA, then the Fuel Cost Component shall
be billed in accordance with such procedures.
17.1.3 Indenture Cost Component. The Indenture Cost Component of the Total
Monthly Power Costs with respect to each Indenture Group for each month
applies to all Participants in the Indenture Group based upon their respective ICS.
The Indenture Cost Component of Total Monthly Power Costs for each month
for each Indenture Group shall consist of the amounts payable by NCPA to the
Trustee under each Indenture relating to such Indenture Group during the next
succeeding month.
17.1.4 Non -Financed Capital Improvement Cost Component. The Non -Financed
Capital Improvement Cost Component of the Total Monthly Power Costs for
each month applies to all Participants based upon their respective GES. The
Non -Financed Capital Cost Component of Total Monthly Power Costs for each
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41009-16 EJC/EJC 30
month in each Fiscal Year consists of one -twelfth of the Contributions in Aid of
Construction provided in the Project Annual Budget for Non -Financed Capital
Improvements for such Fiscal Year.
17.1.5 OandM Step-up Cost Component. The OandM Step-up Cost Component of the
Total Monthly Power Costs for each month applies to all Non -Defaulting
Participants based upon their respective OandM Step-up Share. The OandM
Step-up Component of Total Monthly Power Costs for each month consists of
the amount by which the actual transfers from the respective Revenue Accounts
to the Operating Fund pursuant to Section 21.2 and to the Operating Reserve
Fund pursuant to Section 21.3 in the preceding month were less than the amounts
required to be transferred to such funds pursuant to such Sections.
17.2 Participant Monthly Power Costs. The amount of the Total Monthly Power Costs to be
paid by each Participant for a particular month shall be the sum of the following:
17.2.1 Each Participant's GES multiplied by the Operating Cost Component of the Total
Monthly Power Costs (as provided in Section 17.1.1) for such month.
17.2.2 Each Participant's GES multiplied by the Fuel Cost Component of the Total
Monthly Power Costs for such month unless an alternate billing procedure is
included in the PMOA as provided in Section 17.1.2.2, in which case each
Participant shall be billed for Fuel Costs as provided in the PMOA (as provided
in Section 17.1.2).
17.2.3 Each Participant's ICS multiplied by the Indenture Cost Component of the Total
Monthly Power Cost for the Indenture Group of such Participant (as provided in
Section 17.1.3)for such month.
17.2.4 Each Participant's GES multiplied by the Non -Financed Capital Cost Component
of the Total Monthly Power Costs (as provided in Section 17.1.4) for such
month.
17.2.5 Each Non -Defaulting Participant's OandM Step-up Share multiplied by the
OandM Step-up Component of the Total Monthly Power Costs (as provided in
Section 17.1.5) for such month.
17.3 Billing Statement. On or about the twenty-fifth (25th) day of each month, but not later
than the last day of such month, during the term hereof, commencing the month
preceding the first month when any of the Total Monthly Power Costs are not to be paid
from other available funds, NCPA shall invoice each Participant for the amount of its
Participant Monthly Power Costs by providing such Participant with a Billing Statement
for such Participant Monthly Power Costs. Such Billing Statement shall detail the costs
described in Sections 17.1 and 17.2 and shall set forth any adjustments as a result of
correcting Billing Statements for prior months made in accordance with Sections 17.4,
17.5, 17.6 and 17.10. Subject to any credits available pursuant to Section 17.4, each
Billing Statement shall be paid in full by the applicable Participant by the 30th day after
the date of such Billing Statement. The Participant Committee may recommend the
adoption of an alternative Billing Statement procedure in connection with Billing
Statements. Any such recommended alternative Billing Statement implementation is
subject to the approval of the NCPA Commission and shall satisfy the requirements of
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41009-16 EJC/EJC 31
each Indenture, shall be fiscally prudent and shall assure coverage of all anticipated and
actual Project related costs and obligations of NCPA.
17.4 Disputed Billing Statement.
17.4.1 A Participant may dispute the accuracy of any data in any Billing Statement by
delivering notice of such dispute to NCPA within 30 days of the delivery of such
Billing Statement to the Participant. If no notice of dispute with respect to a
Billing Statement is given within such 30 day period, such data shall be
conclusively deemed correct. In case any portion of any Billing Statement
received by a Participant shall be in dispute, such Participant shall nevertheless
pay NCPA the full amount of such Billing Statementby the time required by this
Agreement. NCPA will review the basis for a Participant's dispute of such data
and will advise the Participant with regard to NCPA's position relative thereto
within 30 days following receipt of written notification from the Participant of
such dispute.
17.4.2 If NCPA agrees there is a mistake in a Billing Statement, the amount of the error
will be debited or credited, as applicable, to a subsequent Billing Statement to
such Participant as soon as reasonably practical.
17.4.3 If NCPA disagrees with the Participant that there is an error in the data in a
Billing Statement, then NCPA shall meet with the Participant and explain the
basis for the Billing Statement and attempt to resolve the matter. If NCPA and
the Participant cannot reach an agreement on the matter within 180 days of
NCPA's receiving the notice of the dispute, either Party may pursue any remedy
available at law or in equity to enforce its rights hereunder; provided that the
Participant shall not be relieved of any of its obligations hereunder, including its
obligations to make all payments hereunder in full without any setoff or other
reduction for any cause whatsoever.
17.4.4 Except as expressly provided with respect to a dispute as to the accuracy of the
data in a Billing Statement, nothing in Section 17.4 shall be construed as waiving
or limiting a Participant's rights under this Agreement, including without
limitation a Participant's right to require Participant Committee Approval for any
action requiring such approval hereunder.
17.5 Reconciliation of Total Monthly Power Costs. As soon as practicable after the end of
each Fiscal Year, NCPA will submit to each Participant a detailed statement of the actual
aggregate Participant Monthly Power Costs and other amounts payable hereunder,
including credits thereto, for all of the months of such Fiscal Year, and the adjustments of
the aggregate Participant Monthly Power Costs and other amounts payable hereunder, if
any, for any prior Fiscal Year, based on the annual audit of accounts provided for in
Section 7.6. The Participant Committee may request that NCPA perform a more frequent
billing reconciliation pursuant to this Section 17.5, and NCPA shall make reasonable
efforts to perform such reconciliations. If, on the basis of the statement submitted as
provided in this Section 17.5, the actual aggregate Participant Monthly Power Costs and
other amounts payable by a Participant for any Fiscal Year exceed the amount thereof
which such Participant has been billed, such Participant shall pay NCPA such amount
within 30 days of receipt of NCPA's invoice therefor. If, on the basis of the statement
submitted pursuant to this Section 17.5, the actual aggregate Participant Monthly Power
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41009-16 EJC/EJC 32
Costs or other amounts payable by a Participant for any Fiscal Year are less than the
amount billed to such participant, NCPA shall, unless otherwise directed by such
Participant, credit such excess against such Participant's next monthly Billing Statement.
In the event that the failure of any Participant in any Indenture Group to make its
payments in accordance with this Agreement shall have resulted in the application of
amounts in any reserve or working capital fund under an Indenture relating to such
Indenture Group or under this Agreement, and other Participants shall have made up the
deficiency created by such application or paid additional amounts as a result of a draw on
such reserve or working capital fund, amounts thereafter paid to NCPA by such
Participant for application to such past due payments including interest shall be credited
on the next Billing Statements of those Participants which have made up such deficiency
to the extent funds are available in the applicable account in the General Reserve Fund.
The amount so credited shall be deposited in the applicable account in the Revenue Fund.
17.6 Reconciliation of Fuel Cost Billing. Except as another procedure is approved by the
Participant Committee and included in the PMOA, as soon as practicable after the end of
each month, NCPA shall compare the actual Fuel Costs payable during such month with
the amount billed for the Fuel Cost Component with respect to such month. NCPA shall
increase or decrease, as necessary, the respective Fuel Cost Component, or other
component of the Total Monthly Power Costs if necessary, of each Participant's Billing
Statement for the next month in which such adjustment can reasonably be made to reflect
the difference between the amount billed for the Fuel Cost Component and the amount
paid or payable for the Fuel Cost Component for the month under review.
17.7 Interest on Late Payments. If any Participant fails to fully pay any Billing Statement
when due, interest shall accrue, to the extent permitted by law, at a rate equal to the
monthly equivalent of the Bank of America N.A. "prime" rate of interest then in effect
plus two percent (2%) per annum on the unpaid amount of the bill, until such Billing
Statement is paid in full. Payments by a Participant shall be credited first to accrued
interest and then to any shortfall in the payments of the Billing Statement. If Bank of
America N.A. ceases to publish such "prime" rate, the Participant Committee shall
determine an alternative institution or comparable rate which shall be used to calculate
interest on late payments.
17.8 Prepavment of Participant Monthly Power Costs. Any Participant may, at any time,
deposit moneys with NCPA in addition to amounts then due and payable hereunder or,
upon the prior approval of NCPA, utilize any credits due or amounts owed by NCPA to
such Participant under any Project -related agreement or other arrangement resulting in a
credit to such Participant for the purpose of prepaying all or any portion of such
Participant's monthly Billing Statements. Such deposits and amounts received by NCPA
resulting in a credit to a Participant shall be deposited into an account established by, or
at the direction of, NCPA. Moneys in such account shall be invested consistent with
NCPA's then current investment policy, and the resulting investment income shall be
credited to such account on behalf of such Participant. Payment of the amount of any
Billing Statement or other billings as provided for in this Agreement shall be made from
moneys available in such account, or from available credits, to the extent set forth in
written directions from such Participant to NCPA and received by NCPA at least seven
days prior to the due date of such payment. Any credit or prepayment with respect to its
monthly Billing Statement shall not relieve or reduce such Participant's obligations under
this Agreement to make payments with respect to a GES Lay -Off or an OandM Step-up,
if applicable.
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17.9 Costs or Expenses Incurred for the Sole Benefit of Less than All Participants.
Notwithstanding anything to the contrary in this Agreement, if a particular Project cost or
expense is incurred by NCPA for the sole benefit of one or more Participants (but less
than all Participants), unless otherwise approved by the Participant Committee, then such
cost or expense shall be allocated only to such benefitting Participant or Participants, in
which event only such benefitting Participant or Participants (and no other Participant)
shall be responsible for the payment thereof under this Agreement. Any such cost or
expense incurred by NCPA for the sole benefit of one or more Participants (but less than
all Participants) shall be payable from available amounts in the applicable account or
accounts in the General Reserve Fund related to the benefitting Participant or Participants
or shall be billed to such Participant or Participants separately from the Billing Statement
to such Participant or Participants for Participant Monthly Power Costs. Subject to any
credits available pursuant to Section 17.4, each bill submitted to a Participant pursuant to
this Section 17.9 shall be paid in full by such Participant by the 30th day after the date of
such bill.
17.10 Disputed ti t t
17.10.1 A Participant may dispute the ,accuracy of any Reconciliation Statement by
delivering notice of such dispute to NCPA within 75 days of the delivery to the
Participant Committee of the results of NCPA's computations reflected in such
Reconciliation Statement. If no notice of dispute with respect to a Reconciliation
Statement is given within such 75 day period such data shall be conclusively
deemed correct. In case any portion of any Reconciliation Statement received by
a Participant shall be in dispute, such Participant shall nevertheless pay NCPA
the full amount of each Billing Statement reflecting such Reconciliation
Statement by the time required by this Agreement. NCPA will review the basis
for a Participant's dispute of the data in a Reconciliation Statement and will
advise the Participant with regard to NCPA's position relative thereto within 30
days following receipt of written notification by the Participant of such dispute.
17.1O.2If NCPA agrees there is a mistake in the data in a Reconciliation Statement, the
amount of the error will be debited or credited, as applicable, to a subsequent
Billing Statementto such Participant as soon as reasonably practical.
17.10.3 If NCPA disagrees with the Participant that there is an error in the data in a
Reconciliation Statement, then NCPA shall meet with the Participant and explain
the basis for the Reconciliation Statement and attempt to resolve the matter. If
NCPA and the Participant cannot reach an agreement on the matter within 180
days of NCPA's receiving the notice of the dispute, either Party may pursue any
remedy available at law or in equity to enforce its rights hereunder; provided that
the Participant shall not be relieved of any of its obligations hereunder, including
its obligations to make all payments hereunder in full without any setoff or other
reduction for any cause whatsoever.
17.10.4 Except as expressly provided with respect to a dispute as to the accuracy of the
data in a Reconciliation Statement, nothing in Section 17.10 shall be construed as
waiving or limiting a Participant's rights under this Agreement, including
without limitation a Participant's right to require Participant Committee
Approval for any action requiring such approval hereunder.
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18. PARTICIPANTPAYMENT OBLIGATIONS AND RATE COVENANT.
18.1 Unconditional Payment Obli ag tion. Beginning with the month preceding the month that
moneys need to be collected from Participants to cover Total Monthly Power Costs, each
Participant shall pay NCPA the amount of its Participant Monthly Power Costs set forth
in the Billing Statements submitted by or on behalf of NCPA to such Participant in
accordance with the provisions of Section 17 and, including, without duplication, any
amount as a result of the operation of Sections 22 and 23. Each Participant acknowledges
and agrees that (a) NCPA's willingness to enter into this Agreement to plan, develop,
finance, construct, operate and maintain the Project was induced and dependent upon
each Participant's purchase of Capacity and Energy as herein provided; (b) NCPA's
willingness to sell Capacity and Energy to each Participant was induced and dependent
upon such Participant's purchase of Capacity and Energy as herein provided; and (c) each
Participant's payment obligation for amounts due hereunder from its Enterprise Revenues
is the absolute and unconditional obligation of such Participant. The obligations of each
Participant to make all payments required to be made by such Participant hereunder from
Enterprise Revenues are incurred by such Participant for the benefit of holders of Bonds
issued by NCPA for such Participant and such payment obligations are absolute and
unconditional. Each Participant agrees to make all payments required to be made by such
Participant hereunder whether or not the Project or any part thereof is developed,
constructed, is operable, operating or retired, and whether or not any Capacity or Energy
is made available or furnished to such Participant at all times or at all, and
notwithstanding the suspension, interruption, interference, reduction or curtailment of
Project output in whole or in part for any reason whatsoever. Except for credits allowed
pursuant to Section 17.5 and/or Section 17.8, all payments required to be made by a
Participant hereunder shall be absolutely net, free of any deductions, and are not subject
to any reduction, whether by offset, recoupment, counterclaim or otherwise. Each
Participant shall make all payments required to be made by such Participant hereunder
notwithstanding the occurrence of any act or circumstances that may constitute failure of
consideration, destruction of or damage to the Project, commercial frustration of purpose,
any change in the tax or other laws of the United States of America or of the State of
California, or any political subdivision of either of these, or any failure of any Party, a
Trustee or any other person to perform and observe any covenant, whether express or
implied, or any duty, liability or obligation arising out of or connected with this
Agreement, any applicable Indenture(s) or any other agreement, including without
limitation any agreement referred to in Sections 8.5, 14, 15 or 16; provided, however, that
nothing contained in this Section 18.1 shall constitute a waiver of a Participant's right to
commence an action to enforce its rights under this Agreement (including without
limitation Sections 22 and 23) or its right to net portions of such Participant's payments
hereunder pursuant to Section 17.8.
18.2 Payments an Operating Expense of Enterprise. The obligation of each Participant to
make payments to NCPA under this Agreement (other than Capital Contributions and
Contributions in Aid of Construction) shall constitute a cost of purchased electric
capacity and energy and be payable as an operating expense of the Participant's
Enterprise (and with respect to CDWR, as a maintenance and operation cost of CDWR's
Enterprise pursuant to California Water Code Section 12937(b)(1)). Each Participant will
annually in each and every fiscal year of the Participant during the term of this
Agreement include in its Enterprise budget, as an Enterprise operating expense, whether
or not any other items are included, an appropriation or commitment from its Enterprise
Revenues sufficient to satisfy all payments required to be made by the Participant in such
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fiscal year under this Agreement (other than Capital Contributions and Contributions in
Aid of Construction) which are not paid from other available funds of the Participant
until all such payments required to be made by the Participant under this Agreement have
been paid in full.
18.3 Rate Covenant. Each Participant covenants and agrees that it will fix rates and charges
for the commodities and services provided by its Enterprise which will provide the
Participant at all times with Enterprise Revenues which will be sufficient, together with
other funds available to make such payments, to meet when due its obligations under this
Agreement and all other obligations payable from the Enterprise Revenues on a basis
prior to or on a parity with such obligations.
18.4 Special Obli ag tion. The obligation of each participant to make any and all payments
hereunder is a special obligation of such Participant which the Participant is obligated to
make solely from its Enterprise Revenues. The obligation of each Participant to make
payments hereunder does not constitute a debt of such Participant or of the State of
California or of any political subdivision thereof within the meaning of any constitutional
or statutory debt limitation or restriction, nor a pledge of the full faith and credit and
taxing power of such Participant or any other entity. Nothing herein shall be construed as
prohibiting any Participant, in its sole discretion, from using any funds other than
Enterprise Revenues for the purpose of satisfying any provisions of this Agreement, or
from entering into contracts or incurring other obligations payable from its Enterprise
Revenues on parity with such Participant's obligation to make payments hereunder.
18.5 Enterprise. Each Participant shall operate and maintain its Enterprise in a business like
fashion and in accordance with Prudent Utility Practice.
19. PARTICIPANTS' OBLIGATIONS SEVERAL. Each Participant shall be solely responsible
and liable for its performance under this Agreement and for the maintenance and operation of its
Enterprise. The obligation of each Participant to make payments under this Agreement is a
several obligation and not a joint obligation with the other Participants. Nothing in this Section
19 shall limit or otherwise affect the applicable GES Step-up or the OandM Step-up obligations
of the each Participant pursuant to this Agreement.
20. PLEDGE UNDER INDENTURES. All or any portion of NCPA's rights under this Agreement
with respect to the Participants in an Indenture Group, including NCPA's rights to the payments
required to be made by the Participants in the applicable Indenture Group in accordance with or
pursuant to any provision of this Agreement, may be assigned and pledged by NCPA to secure its
obligations under each Indenture relating to such Indenture Group, including interest and any
other payments due under such Indenture, subject to the application of the Project Revenues of
such Indenture Group to such purposes and on such terms as provided in this Agreement. Such
rights may include all of NCPA's right, title and interest in, to and under this Agreement with
respect to the obligations of the Participants in the applicable Indenture Group, including without
limitation its rights to receive from Participants in such Indenture Group all or any portion of the
payments to be made by such Participants pursuant to this Agreement and all other Project
Revenues related to such Indenture Group including Project Revenues received pursuant to
actions taken pursuant to Sections 22 and/or 23, and its rights to enforce any obligations of such
Participants under this Agreement. Each Participant does hereby acknowledge and approve any
and all such pledges and assignments of NCPA. NCPA may direct the Participants in an
Indenture Group to make all or any portion of such payments directly to a Trustee under an
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Indenture relating to such Indenture Group and upon such directions the applicable Participants
agree to make such payments to the designated Trustee.
21. FUNDS; APPLICATION OF PROJECT REVENUES.
21.1 Revenue Fund. NCPA shall establish and maintain as long as this Agreement remains in
effect, as a fund separate and apart from all other funds and moneys of NCPA, a fund
designated as the Lodi Energy Center Revenue Fund and which shall consist of three
accounts: the Indenture Group A Revenue Account, with respect to the Indenture Group
A Participants; the Indenture Group B Revenue Account, with respect to the Indenture
Group B Participant; and the Indenture Group C Revenue Account, with respect to the
Indenture Group C Participant. Upon receipt thereof NCPA shall deposit: (i) in the
Indenture Group A Revenue Account, all Project Revenues received in connection with
the Indenture Group A Participants' GES; (ii) in the Indenture Group B Revenue
Account, all Project Revenues received in connection with the Indenture Group B
Participant's GES; and (iii) in the Indenture Group C Revenue Account, all Project
Revenues received in connection with the Indenture Group C Participant's GES;
provided, however, that the proceeds of Default Mitigation Sales shall be deposited
directly into the applicable account within the Default Mitigation Sale Fund as provided
in Section 21.6. Moneys in the Revenue Fund shall be applied as provided in this
Agreement.
21.2 Operating Fund. NCPA shall establish and maintain so long as this Agreement remains
in effect, as a fund separate and apart from all other funds and moneys of NCPA, a fund
designated as the Lodi Energy Center Operating Fund. Moneys in the Operating Fund
shall be applied by NCPA to the Operation and Maintenance Expenses of the Project.
Not later than the last day of each month, NCPA shall transfer from each Revenue
Account to the Operating Fund the amount specified,in the applicable Indenture Group
Participants' Billing Statements for the immediately preceding month which is
attributable to Operation and Maintenance Expenses.
21.3 Operating Reserve Fund. NCPA shall establish and maintain so long as this Agreement
remains in effect, as a fund separate and apart from all other funds and moneys of NCPA,
a fund designated as the Lodi Energy Center Operating Reserve Fund. Moneys in the
Operating Reserve Fund shall be applied by NCPA to the Operation and Maintenance
Expenses of the Project in the event that the moneys in the Operating Fund are
insufficient to make such payments. Not later than the last day of each month, after
making the transfer required by Section 21.2, NCPA shall transfer from each Revenue
Account to the Operating Reserve Fund the amount specified in the applicable Indenture
Group Participants' Billing Statements for the prior month which is attributable to the
Operating Reserve Requirement. Not later than the last day of each month, after making
the transfer required by Section 21.2, NCPA shall transfer to each Revenue Account from
the Operating Reserve Fund the pro rata amount (based on the GES attributable to each
Indenture Group) by which the amount on deposit in the Operating Reserve Fund exceeds
the Operating Reserve Requirement.
21.4 Indenture Transfers. Not later than the last day of each month, after making the transfers
required by Section 21.2 and Section 21.3, NCPA shall transfer from each Revenue
Account to each Trustee under an Indenture with respect to the Indenture Group related
to such Revenue Account the amount applicable to such Indenture in the applicable
Indenture Group Participants' Billing Statements for the immediately preceding month
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attributable to amounts due under each such Indenture. In the event the amount available
in an account in the Revenue Fund is not sufficient to make all payments in such month
required by all Indentures relating to the Indenture Group with respect to such account,
available amounts in such account shall be applied as provided in the applicable
Indentures.
21.5 General Reserve Fund. NCPA shall establish and maintain as long as this Agreement
remains in effect, as a fund separate and apart from all other funds and moneys of NCPA,
a fund designated as the Lodi Energy Center General Reserve Fund and which shall
consist of three accounts: the Indenture Group A General Reserve Account, with respect
to the Indenture Group A Participants; the Indenture Group B General Reserve Account,
with respect to the Indenture Group B Participant; and the Indenture Group C General
Reserve Account, with respect to the Indenture Group C Participant. Not later than the
last day of each month, after making the transfers required by Sections 21.2, 21.3 and
21.4, NCPA shall (i) transfer all moneys remaining in the Indenture Group A Revenue
Account to the Indenture Group A General Reserve Account; (ii) transfer all moneys
remaining in the Indenture Group B Revenue Account to the Indenture Group B General
Reserve Account, and (iii) transfer all moneys remaining in the Indenture Group C
Revenue Account to the Indenture Group C General Reserve Account. Amounts in each
account in the General Reserve Fund shall be applied (i) first as provided in each
Indenture related to the Indenture Group for which such account was established and (ii)
second, as shall be approved by an Indenture Group Approval of the Indenture Group for
which such account was established.
21.6 Default Mitigation Sale Fund. NCPA shall establish and maintain as long as this
Agreement remains in effect, as a fund separate and apart from all other funds and
moneys of NCPA, a fund designated as the Lodi Energy Center Default Mitigation Sale
Fund and which shall consist of a separate account in the Default Mitigation Sale Fund
for each Defaulting Participant for which a Default Mitigation Sale has been made. The
proceeds of all Default Mitigation Sales made on behalf of the Defaulting Participant on
whose behalf the account was established, less the expenses incurred in connection with
such sales, including transmission costs, shall be deposited in the account in the Default
Mitigation Sale Fund relating to such Defaulting Participant. Amounts in each account in
the Default Mitigation Sale Fund shall be applied to the payment of amounts due and
unpaid pursuant to the Billing Statements sent to the Defaulting Participant on whose
behalf the account was established.
21.7 Revolving Construction Fund.
21.7.1 Except as provided in this Section 21.7, all Bonds proceeds to be used to pay
Costs of Construction shall be held by the Trustee under the Indenture pursuant
to which such Bonds were issued and released to NCPA upon a requisition
therefor identifying the Costs of Construction to be paid with the requisitioned
Bond proceeds. Except as provided in this Section 21.7, all Capital Contributions
shall be held by a trustee or escrow agent under a trust or escrow instrument
pursuant to which such Capital Contributions are to be released to NCPA upon a
requisition therefor identifying the Costs of Construction to be paid with the
requisitioned funds.
21.7.2 NCPA shall establish and maintain so long as this Agreement remains in effect,
as a fund separate and apart from all other funds and moneys of NCPA, a fund
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designated as the Lodi Energy Center Revolving Construction Fund. In
connection with the construction, acquisition and placing in operation of the
Initial Facilities and any Financed Capital Improvement, NCPA may requisition
from the Bond proceeds and any Capital Contributions available for the Costs of
Construction of the Initial Facilities or such Financed Capital Improvements, as
applicable, amounts so that the balance in the Revolving Construction Fund shall
be maintained at one million dollars or such higher amount as shall be approved
by the Participant Committee. Moneys in the Revolving Construction Fund shall
be applied by NCPA to the Costs of Construction of the Initial Facilities or
Financed Capital Improvements, as applicable.
21.8 Payment of Costs of Construction. In connection with the construction and placing in
operation of the Initial Facilities and any Financed Capital Improvement, NCPA shall
make requisitions from the Bond proceeds and any Capital Contributions to pay the Costs
of Construction of the Initial Facilities or such Financed Capital Improvements, as
applicable, pro rata among the Indenture Groups based on the ratio of the GES of each
Indenture Group to the GES of all Indenture Groups.
21.9 Investment of Funds. Subject to any further limitations on the investment of such funds
contained in an Indenture, amounts in any fund or account established hereunder which is
held by NCPA may be invested by NCPA in any investments which at the time of
investment are: (i) then legal for the investment of public funds; (ii) consistent with the
NCPA investment policy; and (iii) consistent with any further limitations on the
investment of such amounts approved by the Participant Committee; provided that no
such amounts may be invested for a period longer than the time NCPA expects to
disburse such amounts.
22. PAYMENT DEFAULT AND REMEDIES.
22.1 Payment Default.
22.1.1 Upon failure of a Participant to make any payment in full when due under this
Agreement (including any Contributions in Aid of Construction specified in a
Billing Statement and any Capital Contribution due under a Funding Notice),
NCPA shall promptly provide written notice to such Participant in accordance
with Section 35. If said failure is not cured (including any applicable late
payment interest) within 30 days from the date such notice is effective under
Section 35, it shall constitute a "Payment Default". The notice provided by
NCPA pursuant to this Section 22.1. I shall be entitled "NOTICE OF DEFAULT
AND LOSS OF RIGHTS TO CAPACITY AND ENERGY OF LODI ENERGY
CENTER" and shall set forth in reasonable summary the nature of the default
and the type and amount of any payments that are then due and unpaid and shall
include a statement to the effect that failure to cure such default and make full
and timely payments of all amounts due and payable hereunder within 30 days
from the date such notice is effective under Section 35, could result in the
allocation of all or a portion of the Defaulting Participant's GES in a GES Lay -
Off, the sale or other disposition of the Capacity and Energy associated with such
Participant's GES in a Default Mitigation Sale and, in the case of the Indenture
Group A Participants, the automatic allocation of all or a portion of its GES in a
GES Step-up.
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22.1.2 If the Defaulting Participant in good faith disputes the legality or validity of any
amounts stated in the notice as being due and unpaid, it shall nevertheless make
such payment within said 30 -day period under written protest directed to NCPA.
Such protest shall specify the reasons upon which the protest is based. Any such
protest shall be treated as a dispute in a monthly Billing Statement and NCPA
and the Defaulting Participant shall proceed as provided in Section 17.4.
22.1.3 Not less than ten days prior to any allocation of a Defaulting Participant's GES
pursuant to a GES Lay -Off or a GES Step-up, NCPA shall provide an additional
written notice to the Defaulting Participant concerning such allocation of such
GES, which notice shall be clearly entitled "NOTICE OF ALLOCATION OF
GENERATION ENTITLEMENT SHARE IN LODI ENERGY CENTER." No
further notice shall be required.
22.1.4 All allocations and sales of a Defaulting Participant's GES to another Participant
through a GES Lay -Off or a GES Step-up, and all Default Mitigation Sales, shall
constitute sales of Project Capacity and Energy on behalf of and for the account
of the Defaulting Participant and the Defaulting Participant shall remain liable to
NCPA to pay the full amounts due on its Billing Statements (both before and
after the Payment Default) for its GES as if such sales had not been made, except
that such liability shall be discharged to the extent that NCPA receives payments
with respect to any GES Lay -Off, GES Step-up or Default Mitigation Sale of the
Defaulting Participant's GES. In addition to all amounts due under Billing
Statements as provided in this Section 22.1.4, NCPA in all cases, and Non -
Defaulting Indenture Group A Participants in the case of a GES Step-up, shall be
entitled to recover from the Defaulting Participant any and all damages, legal
fees and other costs incurred by NCPA as a result of such Participant's default.
22.2 Remedies on Payment Default.
22.2.1 GES Lav -Off.
22.2.1.1 Upon a Payment Default by any Participant, such Participant shall
no longer be entitled to receive its GES of Project Capacity and
Energy and NCPA shall apply such Capacity and Energy as
provided in this Agreement. Upon a Payment Default by any
Participant, NCPA shall notify each Non -Defaulting Participant that
the GES of the Defaulting Participant is available for a GES Lay -
Off. During the 60 day period following a Payment Default, NCPA
shall use commercially reasonable efforts to arrange a GES Lay -Off
or GES Lay -Offs of all of the GES of the Defaulting Participant.
During such 60 day period NCPA shall also use commercially
reasonably efforts to arrange Default Mitigation Sales of the
Capacity and Energy associated with the GES of the Defaulting
Participant. Not later than 60 days after a Payment Default, each
Non -Defaulting Participant and entities other than Participants may
agree to accept all or a portion of the Defaulting Participant's GES
in a GES Lay -Off in accordance with the priority provisions of
Section 22.2.5 or Section 22.2.6, as applicable.
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22.2.1.2 The amount of any GES Lay -Off accepted by a Participant shall be
added and become a part of such Participant's GES for all purposes
of this Agreement. If any of the GES of a Defaulting Participant is
accepted in a GES Lay -Off by a Participant in that Indenture Group,
another Indenture Group or an entity other than a Participant, the
accepting Participant or entity shall be responsible for all costs
hereunder in connection with the GES accepted, including the ICS
of the Defaulting Participant related to such accepted GES.
22.2.1.3 Notwithstanding any GES Lay -Off, the Defaulting Participant shall
remain liable hereunder for all amounts payable hereunder with
respect to its GES, including its ICS, except to the extent payments
are received from the Participant or other entity entering into such
GES Lay -Off as provided in Section 22.2.1.
22.2.2 GES Step-up.
22.2.2.1 On the 61st day following a Payment Default by any Indenture
Group A Participant, unless all of the GES of the Indenture Group A
Defaulting Participant has been allocated in GES Lay -Offs pursuant
to Section 22.2.1, NCPA shall notify each Indenture Group A Non -
Defaulting Participant that its GES and its ICS has been
automatically increased for the remaining term of this Agreement as
provided in Section 22.2.2.2.
22.2.2.2 On the 61 st day following a Payment Default by any Indenture
Group A Participant, the GES of each Indenture Group A Non -
Defaulting participant shall be automatically increased by the
amount (expressed as a percentage) obtained by: (i) multiplying the
GES of the Indenture Group A Defaulting Participant which has not
been accepted by another entity pursuant to a GES Lay -Off pursuant
to Section 22.2.1 by (ii) the quotient obtained by dividing the GES
of such Indenture Group A Non -Defaulting Participant by the GES
of all Indenture Group A Non -Defaulting Participants, but in no
event shall any GES Step-up cause any Indenture Group A
Participant's GES to exceed, without consent of such Participant, its
Accumulated Maximum Step-up Percentage.
22.2.3 Default Mitigation Sales. In connection with each Payment Default, NCPA shall
use commercially reasonable efforts to sell, on behalf of and for the account of
the Defaulting Participant and on commercially reasonable terms given the
circumstances of such sale, the Capacity and Energy with respect to the GES of
each Defaulting Participant which has not been allocated to another entity
pursuant to a GES Lay -Off or a GES Step-up. The proceeds of such sales, less
the expenses incurred in connection with such sales, including transmission costs,
shall be deposited in the account in the Default Mitigation Sale Fund relating to
the Defaulting Participant pursuant to Section 21.6.
22.2.4 Deficiency Cure. In consideration of the allocation of GES pursuant to a GES
Step-up or a GES Lay -Off, each entity receiving any such GES shall pay to
NCPA its pro rata share of any deficiency in Billing Statement payments by the
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Defaulting Participant related to such GES Step-up or GES Lay -Off. Such share
shall be based on the ratio that the GES Step-up and/or GES Lay -Off of such
entity bears to the GES Step-ups and GES Lay -Offs of all entities in connection
with the applicable Payment Default.
22.2.5 Priority Of Offers- Indenture Group A Defaulting Participant.
22.2.5.1 Indenture Group A Non -Defaulting Participants shall receive the
first offer from NCPA of a GES Lay -Off of the GES of an Indenture
Group A Defaulting Participant. Such offer shall be made pro rata
based on the ratio that each Indenture Group A Non -Defaulting
Participant's GES bears to the aggregate of the GES of all Indenture
Group A Non -Defaulting Participants. If any of the GES of an
Indenture Group A Defaulting Participant remains after such first
offer, Indenture Group A Non -Defaulting Participants shall receive
the second offer from NCPA of a GES Lay -Off of the remaining
GES of the Indenture Group A Defaulting Participant. If the
Indenture Group A Non -Defaulting Participants offer to take more
GES than is available on such second offer, such available GES
shall be allocated among the Indenture Group A Non -Defaulting
Participants offering to acquire such GES pro rata based on the ratio
that each offering Indenture Group A Non -Defaulting Participant's
GES bears to the aggregate of the GES of all offering Indenture
Group A Non -Defaulting Participants.
22.2.5.2 Indenture Group B and Indenture Group C Non -Defaulting
Participants shall receive the third offer from NCPA of a GES Lay -
Off of any GES of an Indenture Group A Defaulting Participant
remaining after the allocations pursuant to Section 22.2.5.1 have
been made. Such third offer shall be made pro rata based on the
ratio that each Indenture Group B and Indenture Group C Non -
Defaulting Participant's GES bears to the aggregate GES of all
Indenture Group B and Indenture Group C Non -Defaulting
Participants. If any of the GES of an Indenture Group A Defaulting
Participant remains after such third offer, Indenture Group B and
Indenture Group C Non -Defaulting Participants shall receive the
fourth offer from NCPA of a GES Lay -Off of such remaining GES
of the Indenture Group A Defaulting Participant. If the Indenture
Group B and Indenture Group C Non -Defaulting Participants offer
to take more GES than is available on such fourth offer, such
available GES shall be allocated between the Indenture Group B and
Indenture Group C Non -Defaulting Participants offering to acquire
such GES pro rata based on the ratio that each offering Indenture
Group B and Indenture Group C Non -Defaulting Participant's GES
bears to the aggregate GES of all offering Indenture Group B and
Indenture Group C Non -Defaulting Participants.
22.2.5.3 Indenture Group A Non -Defaulting Participants shall receive the
first offer from NCPA of a Default Mitigation Sale of the Capacity
and Energy associated with the GES of an Indenture Group A
Defaulting Participant remaining after the GES Lay -Off and GES
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Step-ups have been completed. Such offer shall be made pro rata
based on the ratio that each Indenture Group A Non -Defaulting
Participant's GES bears to the aggregate GES of all Indenture
Group A Non -Defaulting Participants. Thereafter if any of the
Capacity and Energy associated with the GES of a Defaulting
Participant remains, Indenture Group A Non -Defaulting Participants
shall receive the second offer from NCPA of a Default Mitigation
Sale of the remaining Capacity and Energy. If the Indenture Group
A Non -Defaulting Participants offer to take more Capacity and
Energy associated with the GES than is available on such second
offer, such available Capacity and Energy shall be allocated among
the Indenture Group A Non -Defaulting Participants offering to
acquire such Capacity and Energy pro rata based on the ratio that
the GES of each offering Indenture Group A Non -Defaulting
Participant bears to the aggregate GES of all offering Indenture
Group A Non -Defaulting Participants.
22.2.5.4 Indenture Group B and Indenture Group C Non -Defaulting
Participants shall receive the third offer from NCPA of a Default
Mitigation Sale of the Capacity and Energy associated with the GES
of an Indenture Group A Defaulting Participant remaining after the
allocations pursuant to Section 22.2.5.3 have been made. Such third
offer shall be made pro rata based on the ratio that the GES of each
Indenture Group B and Indenture Group C Non -Defaulting
Participant bears to the aggregate GES of all Indenture Group B and
Indenture Group C Non -Defaulting Participants. If any of the
Capacity and Energy associated with the GES of an Indenture
Group A Defaulting Participant remains after such third offer,
Indenture Group B and Indenture Group C Non -Defaulting
Participants shall receive the fourth offer from NCPA of a Default
Mitigation Sale of such remaining Capacity and Energy. If the
Indenture Group B and Indenture Group C Non -Defaulting
Participants offer to take more of such Capacity and Energy than is
available on such fourth offer, such available Capacity and Energy
shall be allocated between the Indenture Group B and Indenture
Group C Non -Defaulting Participants offering to acquire such
Capacity and Energy pro rata based on the ratio that the GES of
each offering Indenture Group B and Indenture Group C Non -
Defaulting participant bears to the aggregate of the GES of the
offering Indenture Group B and Indenture Group C Non -Defaulting
Participants.
22.2.5.5 If, after all the allocations pursuant to Section 22.2.5.1, Section
22.2.5.2, Section 22.2.5.3 and Section 22.2.5.4 have been made, any
portion of the Capacity and Energy associated with the Defaulting
Participant's GES remains unallocated, it shall be offered for sale by
NCPA to any electric utility or other qualified purchaser that is not a
Participant.
22.2.6 Priority of Offers-IndentureGroup B and C Defaulting participants.
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41009-16EJC/EJC 43
22.2.6.1 Non -Defaulting Participants shall receive the first offer from NCPA
of a GES Lay -Off of the GES of a Defaulting Participant in
Indenture Group B or Indenture Group C. Such offer shall be made
pro rata based on the ratio that each Non -Defaulting Participant's
GES bears to the aggregate GES of all Non -Defaulting Participants.
Thereafter if any of the GES of a Defaulting Participant in Indenture
Group B or Indenture Group C remains after such first offer, Non -
Defaulting Participants shall receive the second offer from NCPA of
a GES Lay -Off of the remaining GES of the Defaulting Participant
in Indenture Group B or Indenture Group C. If the Non -Defaulting
Participants offer to take more of such GES than is available on
such second offer, such available GES shall be allocated among the
Non -Defaulting Participants offering to acquire such GES pro rata
based on the ratio the GES of each offering Non -Defaulting
Participant bears to the aggregate of the GES of all offering Non -
Defaulting Participants.
22.2.6.2 Non -Defaulting Participants shall receive the first offer from NCPA
of a Default Mitigation Sale of the Capacity and Energy associated
with the GES of an Indenture Group B or Indenture Group C
Defaulting Participant remaining after the allocations pursuant to
Section 22.2.6.1 have been made. Such offer shall be made pro rata
based on the ratio that each Non -Defaulting Participant's GES bears
to the aggregate of the GES of all Non -Defaulting participants. If
any of the Capacity and Energy associated with the GES of an
Indenture Group B or Indenture Group C Defaulting Participant
remains after such first offer, Non -Defaulting Participants shall
receive the second offer from NCPA of a Default Mitigation Sale of
the remaining GES of the Indenture Group B or Indenture Group C
Defaulting Participant. If the Non -Defaulting Participants offer to
take more of the Capacity and Energy associated with Indenture
Group B or Indenture Group C Defaulting Participant's GES than is
available on such second offer, such available Capacity and Energy
shall be allocated among the Non -Defaulting Participants offering to
acquire such Capacity and Energy pro rata based on the ratio that
the GES of each offering Non -Defaulting Participant bears to the
aggregate of the GES of all offering Non -Defaulting Participants.
22.2.6.3 If, after all the allocations pursuant to Section 22.2.6.1 and Section
22.2.6.2 have been made, any portion of the Capacity and Energy
associated with the Indenture Group B or Indenture Group C
Defaulting Participant's GES remains unsold, it shall be offered for
sale by NCPA to any electric utility or other qualified purchaser that
is not a Participant.
22.2.7 Effect on Tax Status. No GES Lay -Off or Default Mitigation Sale shall be made
by NCPA if such action would adversely affect the Tax Status of any Bond.
22.2.8 Other Remedies. In addition to all other remedies provided for herein, in the
event of a Payment Default by a Participant, NCPA, any other Participant and/or
any Trustee may bring any suit, action, or proceeding in law or in equity,
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41009-16 EJC/EJC 44
including an action for damages, mandamus, injunction, specific performance,
declaratory judgment, or any combination thereof, as may be necessary or
appropriate to enforce any applicable covenant, agreement or obligation of this
Agreement against the Defaulting Participant.
22.2.9 DefaultingParticipant Remains Liable. Notwithstanding the allocation and sale
of an Indenture Group A Defaulting Participant's GES to another Indenture
Group A Participant pursuant to Section 22.2.2, the Indenture Group A
Defaulting Participant shall remain liable, in addition to all amounts due under
Billing Statements as provided in this Section 22.2.9, to NCPA and the Indenture
Group A Participants receiving such GES for any damages sustained by NCPA
and/or such Indenture Group A Participants as a result of the Payment Default by
the Indenture Group A Defaulting Participant.
22.2.10 Costs of Enforcement. In the event of a Payment Default by a participant, NCPA
and each other Party shall be entitled to recover from the Defaulting Participant
any and all legal fees and costs incurred as a result of enforcing its rights
hereunder.
23. DEFAULTS OTHER THAN PAYMENT DEFAULTS.
23.1 Remedies on Participant Default. In the event of any default by a Participant in the
performance of any covenant, agreement or obligation under this Agreement, other than a
Payment Default, any other Party and/or any Trustee may send notice of such default to
the applicable Participant and request that such default be remedied. If the applicable
Participant does not remedy such default within 60 days of such notice, any other Party
and/or any Trustee may bring any suit, action, or proceeding in law or in equity,
including mandamus, injunction, specific performance, declaratory judgment, or any
combination thereof, as may be necessary or appropriate to recover any damages incurred
as a result of such default and/or to enforce any applicable covenant, agreement or
obligation of this Agreement against the defaulting Party.
23.2 Remedies on NCPA Default. In the event of any default by NCPA in the performance of
covenant, agreement or obligation under this Agreement, any other Party and/or any
Trustee may send notice of such default to NCPA and request that such default be
remedied. If NCPA does not remedy such default within 60 days of such notice, any
other Party and/or any Trustee may bring any suit, action, or proceeding in equity,
including mandamus, injunction, specific performance, declaratory judgment, or any
combination thereof, as may be necessary or appropriate to cause NCPA to comply with
each applicable covenant, agreement or obligation on its part under this Agreement.
23.3 Costs of Enforcement. In the event of a default by a Participant of any of its covenants,
agreements, or obligations hereunder, other than a Payment Default (which is addressed
in Section 22.2.10), each other Party shall be entitled to recover from such Participant
any and all legal fees and costs incurred as a result of enforcing its rights hereunder.
24. INDEMNIFICATION AND RELATED MATTERS.
24.1 Release. Each Participant agrees that, to the extent permitted by law, neither NCPA nor
any of its commissioners, directors, officers, employees or agents shall be liable to any
Participant for loss of profits or direct or consequential loss or damage suffered by such
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41009-16EJC/EJC 45
Participant as a result of (i) the performance or non-performance by NCPA or any of its
commissioners, directors, officers, employees or agents under any Project -related
agreement (whether negligent or otherwise) or (ii) the performance or non-performance
(whether negligent or otherwise) of NCPA or any of its commissioners, directors,
officers, employees or agents under this Agreement. Each Participant releases NCPA and
its commissioners, directors, officers, employees and agents from any claim or liability
(whether negligent or otherwise) as a result of any actions or inactions of NCPA under
this Agreement or the performance or non-performance by NCPA under any Project -
related agreement. The provisions of this Section 24.1 shall not be construed so as to
relieve NCPA from any obligation under this Agreement, the PMOA, or other Project -
related agreement. No such performance or non-performance by NCPA shall relieve any
Participant from its obligations under this Agreement, including its obligation to make
payments required under this Agreement, and such payments shall not be subject to any
reduction, whether by offset, counterclaim or otherwise. Each Participant acknowledges
and expressly waives the provisions of California Civil Code Section 1542 as applicable
hereto.
24.2 Extent of Exculpation, Enforcement of Rights. The exculpation provision set forth in
Section 24.1 shall, to the extent permitted by law, apply to all types of claims or actions
including, but not limited to, claims or actions based on contract or tort. Notwithstanding
the foregoing, each Participant may protect and enforce its rights under this Agreement
by a suit or suits in equity for specific performance of any obligations or duty of NCPA
and each Participant shall at all times retain the right to recover, by appropriate legal
proceedings, any amount determined to have been an overpayment by such Participant in
accordancewith Section 17.4.
24.3 Indemnification for Claims of Retail Customers. Each Participant shall assume all
liability for any claim, action or judgment, whether or not caused by negligence, arising
out of or in connection with service to any of its retail customers caused by the operation
or failure of operation of the Project or any portion thereof under this Agreement and, to
the fullest extent permitted by law, shall indemnify, defend and hold harmless each of the
other Participants and NCPA, as Project operator, as issuer of Bonds and in every other
capacity, and its commissioners, directors, officers, employees and agents from any such
claim, action orjudgment.
24.4 Determination or Enforcement of Rights. Notwithstanding the provisions of Sections
24.1, 24.2 and 24.3, each Party may determine, protect and enforce its rights under this
Agreement by a suit or suits in equity for specific performance of, or declaratory action
with respect to, any obligation or duty of another Party hereunder.
24.5 No Relief From Insurer's Obligations. Notwithstanding any provision in this Agreement
to the contrary, including but not limited to the provisions in Section 24, the provisions of
Section 24 shall not be construed or applied so as to relieve any insurer of its obligation
to pay any insurance claims in accordance with any applicable insurance policy.
24.6 NCPA Commissioners, Officers. Employees, Agents Not Individually Liable; No
General Liability of NCPA. It is hereby recognized and agreed that no member of
NCPA's Commission, officer, employee or agent of NCPA or member of NCPA in its
capacity as a member of NCPA shall be individually liable in respect of any undertakings
by NCPA under any Project -related agreement, including this Agreement. The
undertakings by NCPA under this Agreement shall never constitute a debt or
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41009-16 EJC/EJC 46
indebtedness of NCPA within the meaning of any provision or limitation of the
Constitution or statutes of the State of California and shall not constitute or give rise to a
charge against its general credit but shall be payable only from the funds provided and
available to NCPA under this Agreement.
24.7 Liability of Participants Strictly Limited to the Proiect. NCPA's debts, liabilities and
obligations shall not constitute debts, liabilities or obligations of any Participant except to
the extent that such Participant has specifically contracted to be liable under this
Agreement or another written agreement. Accordingly, except as set forth in this
Agreement and any other written agreement between NCPA and such Participant with
respect to the Project, NCPA and all Participants agree that no Participant or NCPA
member shall have any liability or responsibility for, and no claim may be asserted
against any Participant in connection with, any other project, undertaking or contract of
NCPA, past, present or future. NCPA shall, to the fullest extent permitted by law,
indemnify and hold harmless, but only from Project Revenues available therefor, each of
the Participants and all other NCPA members from any such claim, action or judgment
(including the obligation to pay reasonable attorneys' fees and other costs of defense).
25. REIMBURSEMENT OF PROJECT DEVELOPMENT COSTS. Notwithstanding that this
Agreement supersedes the Development Agreement, Section 4 of the Development Agreement
remains in effect pursuant to its terms.
26. REFUNDING BONDS AND BOND RELATED DOCUMENTS.
26.1 Refunding Bonds. In the event that the Participant Monthly Power Costs for an Indenture
Group may be reduced by the refunding of any Bonds issued with respect to such
Indenture Group, or in the event it shall otherwise be advantageous, in the opinion of
NCPA to refund any such Bonds, NCPA may issue and sell refunding Bonds for such
Indenture Group in accordance with the respective Indenture(s), applicable law, and this
Agreement, including Section 8.1.
26.2 Bond -Related Documents. Participants in each Indenture Group agree to supply NCPA,
upon request, with such information and documentation, including opinions of counsel
for each Participant, as NCPA shall reasonably determine to be necessary or desirable to
facilitate the issuance and maintenance of Bonds for such Indenture Group and to comply
with continuing disclosure requirements (including, but not limited to, requirements
under Rule 15c2-12 of the United States Securities and Exchange Commission), to obtain
credit ratings, bond insurance, credit facilities, liquidity facilities and to complete other
transactions and matters relating to such Bonds.
27. INDENTURES AND GOVERNMENTAL REQUIREMENTS.
27.1 Agreement Subject to Indentures and Governmental Requirements. It is recognized by
the Parties hereto that NCPA, in undertaking the planning, financing, construction,
improvement, management, operation and maintenance of the Project, must comply with
the requirements of each Indenture and all licenses, permits and approvals or other
governmental authorizations necessary for such planning, financing, construction,
operation and maintenance and it is therefore agreed that this Agreement is made subject
to the provisions of the each Indenture, and all such licenses, permits, approvals and
governmental authorizations.
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41009-16 EJC/EJC 47
27.2 NCPA Covenant to Comply With Indentures and Certain Governmental Requirements.
NCPA covenants and agrees for the benefit of each Participant to comply in all material
respects with all terms, conditions and covenants of each Indenture, and all licenses,
permits, approvals and governmental authorizations relating to the Project, provided that
NCPA shall not be prevented from contesting the validity or applicability of any
requirements relating to such licenses, permits, approvals and governmental
authorizations in good faith by appropriate proceedings.
2B. EXPRESS THIRD -PARTY BENEFICIARIES. In addition to any rights which a Trustee may
have as an assignee of NCPA's rights hereunder, each Trustee shall be an express third party
beneficiary hereof and shall have the right as a third parry beneficiary to initiate and maintain suit
to enforce this Agreement to the extent provided in the applicable Indenture. No person other
than a Trustee shall be a third parry beneficiary of this Agreement. Nothing in this Agreement
expressed or implied is intended or shall be construed to give to any person other than NCPA, the
Participants and each Trustee, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any covenant, condition or provision herein; and all such covenants, conditions
and provisions are and shall be held to be for the sole and exclusive benefit of NCPA, the
Participants and each Trustee.
29. COUNTERPARTS. This Agreement may be executed in several counterparts, all or any of
which shall be regarded for all purposes as one original and shall constitute and be but one and
the same instrument.
30. OBSERVANCE OF LAWS. NCPA and each Participant shall at all times comply with all
federal and state laws and regulations applicable to their respective performances of this
Agreement.
31. FURTHER ASSURANCES. NCPA and each Participant agree to execute and deliver all further
instruments and documents (including any certification demonstrating compliance with other
contracts that control such Party's right to execute and deliver this Agreement, if any), and take
all further actions that may be reasonably necessary for, or to evidence, such Party's performance
of its obligations hereunder and otherwise to effectuatethe purposes and intent of this Agreement.
32. EFFECTIVE DATE. This Agreement shall become effective on the first day when all of the
following have occurred (i) this Agreement shall have been executed and delivered by NCPA and
Participants subscribing to 100% of Project GES, and (ii) each such Participant shall have
delivered to NCPA an opinion of an attorney or firm of attorneys in substantially the form
attached hereto as Appendix C. NCPA will provide a written notice of the Effective Date to each
Participant within seven days of the Effective Date; provided that failure to provide such notice
shall not affect the establishment of the Effective Date.
33. TERM OF AGREEMENT. The term of this Agreement shall begin on the Effective Date.
Unless terminated earlier pursuant to this Section 33, the term of this Agreement shall expire on
the later of (i) the expiration of the useful life of the Project as approved by the Participant
Committee; and (ii) the date on which (A) no obligations remain Outstanding under an Indenture
and (B) all costs, obligations and liabilities of NCPA to decommission, salvage, discontinue, and
dispose of the Project have been provided for.
34. SUCCESSORS. The rights and obligations under this Agreement shall inure to the benefit of
and shall be binding upon the respective successors of the Parties to this Agreement.
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41009-16 EJC/OC 48
35. NOTICES. All notices, requests and other communications under this Agreement shall be in
electronic or written form (including telegram, facsimile, e-mail or similar writing) and shall be
given to the Party to whom addressed, at its address or facsimile number or e-mail address set
forth in Appendix D hereto, or such other address or facsimile number or e-mail address as such
Party may hereafter specify in writing to NCPA; provided that any notice of a Payment Default
and each Funding Notice shall be hand -delivered by overnight messenger service and deemed
effective upon such delivery. NCPA shall maintain a master list of all such addresses, facsimile
numbers and e-mail addresses for NCPA and all Participants and shall promptly provide a copy
of any notice, request or other communication received from a Participant to all other
Participants. Each such notice, request or communication shall be effective (i) if given by e-mail,
telecopy or other electronic means by 5 p.m. on a Business Day to the number on the master list
maintained by NCPA pursuant to this Section 35, when the appropriate confirmation of receipt is
received; or (ii) if given by e-mail, telecopy or other electronic means after 5 pm on a Business
Day to the number on the master list maintained by NCPA pursuant to this Section 35 and the
appropriate confirmation of receipt is received, on the Business Day following the date on which
sent by such e-mail, telecopy or other electronic means; or (iii) if given by mail, five days after
such communication is deposited in the United States mail with first class postage prepaid,
addressed to the address on the master list maintained by NCPA pursuant to this Section 35.
36. SEVERABILITY. In case any one or more of the provisions of this Agreement (other than the
unconditional obligation of the Participants to make all payments due hereunder from Enterprise
Revenues without deduction or setoff), shall for any reason be held to be illegal or invalid by a
court of competentjurisdiction, it is the intention of each of the Parties hereto that such illegality
or invalidity shall not affect any other provision hereof, but this Agreement shall be construed and
enforced as if such illegal or invalid provision (other than the unconditional obligation of the
Participants to make all payments due hereunder from Enterprise Revenues without deduction or
setoff) had not been contained herein unless a court holds that such provisions are not separable
from all other provisions of this Agreement.
37. AMENDMENTS TO AGREEMENT. Each amendment to this Agreement shall be in writing
signed by all the Parties; provided, however, that any amendment of this Agreement affecting the
Plumas Sierra Rural Electric Cooperative shall be effective only upon the prior written consent of
the Rural Utilities Service of the United States Department of Agriculture. So long as any
obligations of NCPA remain Outstanding under any Indenture and any Indenture has not been
fully satisfied in accordance with its terms, this Agreement shall not be terminated, amended,
modified or otherwise altered in any manner which will materially reduce the respective
payments to be made by each Participant or extend the time of such payments provided herein or
which will materially impair or materially adversely affect the rights of the owners from time to
time of the Bonds or the obligations to be performed under any Indenture.
38. ASSIGNMENTS. Except as provided in the next sentence, so long as any obligations remain
Outstanding under an Indenture with respect to an Indenture Group, and except as otherwise
provided in this Section 3 8 and in this Agreement with respect to GES Lay -Offs, GES Step-ups,
and sales of Capacity and Energy, no Party shall assign any of its rights or obligations hereunder
and any purported such assignment shall be null and void. The Indenture Group C Participant
may assign and transfer its rights to the Capacity and Energy in connection with any financing of
its share of the Costs of Construction of the Initial Facilities and/or any Financed Capital
Improvement; provided that no such assignment and transfer shall relieve the Indenture Group C
Participant of any of its obligations hereunder or affect the status of the Indenture Group C
Participant as a Participant hereunder. When no obligations remain Outstanding under an
Indenture, and except as otherwise provided herein with respect to GES Lay -Offs, GES Step-ups
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41009-16 EJC/EJC 49
and sales of Capacity and Energy, a Party may assign any of its rights or obligations hereunder;
provided that (i) such Party shall first offer to assign such rights and obligations to the Non -
Defaulting participants on the same terms, and (ii) no such assignment shall relieve the assigning
Party of any of its obligations hereunder.
39. OFFICIAL FILE. NCPA shall maintain or cause to be maintained an official file containing a
true and correct copy of this Agreement executed by all Parties, together with current Appendices
hereto and history of changes to such Appendices, and which official file shall be made available
upon request to any Participant or any Trustee.
40. GOVERNING LAW. This Agreement shall be interpreted, governed by and construed under
the laws of the State of California without reference to any conflict of law principles.
41. SPECIAL PROVISIONS APPLYING TO CDWR AND NCPA ONLY.
41.1 California General Terms and Conditions. The State of California General Terms and
Conditions and Certification Clauses shown in Appendix E and Appendix F are
incorporated in this Agreement. Appendix E and Appendix F apply only to CDWR and
NCPA concerning this Agreement.
41.2 Department of General Services Review. The Parties to this Agreement acknowledge
that this Agreement, as it applies to CDWR, must be reviewed and approved by the
Director of the Department of General Services, or his designee, before it becomes of full
force and effect. CDWR shall provide a letter opinion from CDWR Counsel indicating
that Department of General Services' review and approval of this Agreement has
occurred and that all relevant procedural requirements for State of California contracting
have been met.
42. APPENDICES. This Agreement includes the following Appendices:
Appendix A:
Lodi Energy Center Project Participation Shares
Appendix B:
Description of Initial Facilities
Appendix C:
Opinion of Independent Counsel
Appendix D:
Participant Addresses for Notice
Appendix E:
State of California General Terms and Conditions
Appendix F:
Certification Clauses
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41009-16000C 50
IN WITNESS WHEREOF, each Participant has executed this Agreement with the approval of
its governing body, and NCPA has executed this Agreement in accordance with the authorization of its
Commission.
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41009-16EJC/EJC 51
SIGNATURE PAGES
NORTHERN CALIFORNIA
POWER AGENCY
Date:
BAY AREA RAPID TRANSIT DISTRICT
Date:
OHS West: 260740449.15
41009-16EJC/EJC
Approved as to Legal Form
Lm
Date:
Approved as to Legal Form
Date:
S-1
NORTHERN CALIFORNIA
POWER AGENCY Approved as to Legal Form
Date:
CITY OF AZUSA
Date:
OHS West:260740449.15
41009-16 EJCEJC
IM
Date:
Approved as to Legal Form
0
Date:
s-2
NORTHERN CALIFORNIA
POWER AGENCY Approved as to Legal Form
Date:
CITY OF BIGGS
Date:
OHS West: 260740449,15
41009-16 EJC/EJC
Date:
Approved as to Legal Form
LI -A
Date:
s-3
NORTHERN CALIFORNIA
POWER AGENCY
Date:
CITY OF GRIDLEY
Approved as to Legal Form
Date:
Approved as to Legal Form
Date: Date:
OHS West: 260740449.15
41009-16EJC/EJC s-4
NORTHERN CALIFORNIA
POWER AGENCY
Date:
CITY OF HEALDSBURG
Approved as to Legal Form
Date:
Approved as to Legal Form
Date: Date:
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41009-16EJCEJC S-5
NORTHERN CALIFORNIA
POWER AGENCY
Date:
i
OHS West;260740449.15
41009-16EJCJEJC
Approved as to Legal Form
Date:
Approved as to Legal Form
M.
Date:
S-6
NORTHERN CALIFORNIA
POWER AGENCY Approved as to Legal Form
Date:
CITY OF LOMPOC
Date:
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41009-16 EJC/EJC
Lm
Date:
Approved as to Legal Form
Date:
S-%
NORTHERN CALIFORNIA
POWER AGENCY
Date:
CITY OF SANTA CLARA
Date:
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41009-16 EJC/EJC
Approved as to Legal Form
By:
Date:
Approved as to Legal Form
Date:
m
NORTHERN CALIFORNIA
POWER AGENCY Approved as to Legal Form
By:
Date: Date:
CITY OF UKIAH Approved as to Legal Form
Date: Date:
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41009-16 EJC/EJC S-9
NORTHERN CALIFORNIA
POWER AGENCY
Date:
MODESTO IRRIGATION DISTRICT
Date:
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41009-16EJC/EJC
Approved as to Legal Form
Date:
Approved as to Legal Form
Un
Date:
Sr10
NORTHERN CALIFORNIA
POWER AGENCY
Date:
PLUMAS-SIERRA RURAL ELECTRIC
COOPERATIVE
Date:
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41009-16 EJC/EJC
Approved as to Legal Form
Date:
Approved as to Legal Form
Un
Date:
S-11
NORTHERN CALIFORNIA
POWER AGENCY
Date:
CITY 0 F OAKLAND ACTING BY AND
THROUGH ITS BOARD 0 F PORT
COMMISSIONERS
Date:
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Approved as to Legal Form
0
Date:
Approved as to Legal Form
0
Date:
sr12
NORTHERN CALIFORNIA
POWER AGENCY
Date:
Approved as to Legal Form
0
Date:
POWER AND WATER RESOURCES Approved as to Legal Form
POOLING AUTHORITY
By:
Date: Date:
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41009-16 EJC/EJC S-13
NORTHERN CALIFORNIA
POWER AGENCY
Date:
STATE OF CALIFORNIA DEPARTMENT OF
WATER RESOURCES
Date:
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Approved as to Legal Form
0
Date:
Approved as to Legal Form and Legal Sufficiency
Im
Date:
APPENDIX A
LODI ENERGY CENTER
PROJECT PARTICIPANT SHARES
Area Rapid Transit
District
Total 100.000%
As of the Effective Date.
* * Based on the expected nameplate capacity of the Initial Facilities.
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41009-16EJC/E.TC A-1
Generation Indenture
Entitlement Share Cost Share
Participant"
(GES)* MW** (ICS) -
California Department
%
of Water Resources
City of Azusa
%
City of Biggs
%
City of Gridley
%
City of Healdsburg
%
City of Lodi
%
City of Lompoc
%
City of Oakland - Port
%
of Oakland
City of Santa Clara
%
City of Ukiah
%
Modesto Irrigation
%
District
Plumas-Sierra Rural
%
Electric Cooperative
Power and Water
%
Resources Pooling
Authority
San Francisco Bay
%
Area Rapid Transit
District
Total 100.000%
As of the Effective Date.
* * Based on the expected nameplate capacity of the Initial Facilities.
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41009-16EJC/E.TC A-1
APPENDIX B
DESCRIPTION OF THE INITIAL FACILITIES
The Initial Facilities of the Lodi Energy Center consist of a natural gas fueled, combined -cycle electric
generating station located in Lodi, California, including a gas fired combustion turbine generator, a heat
recovery steam generator, a selective catalytic reduction pollution control system, a steam turbine
generator, control and administrative buildings, wet mechanical -draft cooling towers, recirculating water
system, auxiliary cooling water heat exchangers, interconnection and transformer facilities, land rights,
water rights, governmental permits, Emission Reduction Credits, all appurtenant facilities and resources,
including fuel and water, as well such facilities' share of any shared facilities and resources used in
common with the existing 49 -MW NCPA Combustion Turbine Project Number Two — Unit One (the
"STIG Plant") as listed below and related facilities on or adjacent to the site of the Lodi Energy Center,
together with all other rights, equipment and facilities ancillary to or associated with such electric
generating station.
The following existing elements of the STIG Plant's infrastructure will be shared between the Project and
the STIG Plant:
— The anhydrous ammonia system, including both the 12,000 -gallon storage tank and unloading
facilities.
— The 230 -kilovolt switchyard and interconnect.
— The fire systems, including fire water storage tanks and diesel -fired emergency fire pump.
— The domestic water systems, including eye wash stations and emergency showers.
— The existing Class I underground injection well.
The following facilities will be modified or built as part of the Initial Facilities:
— The administration building, including the control room, office space, maintenance shop and
communication systems. These facilities will be shared by both the Project and the STIG Plant.
— The warehouse facilities. These facilities will be shared by both the Project and the STIG Plant.
The following facilities will be modified or built with the cost of such modification or building included
in the Costs of Construction of the Initial Facilities but will not be shared by the Project and the STIG
Plant and are not a part of the Project:
— The existing commercial cooling tower for the STIG Plant will be relocated to accommodate the
Project.
— The existing gas metering station for the STIG Plant will be relocated to accommodate the Project.
The remaining facilities and activities at the STIG Plant will not be shared between the Project and the
STIG Plant and are not part of the Project.
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41009-16EJC/EJC B— I
APPENDIX C
OPINION OF INDEPENDENT COUNSEL TO PARTICIPANT
Commissioners
Northern California Power Agency
651 Commerce Drive
Roseville, California 95678
[underwriter or lender]
[credit facility provider, if any]
[bond counsel]
Ladies and Gentlemen:
MONTH XX, 20YY
I am counsel to , a (the "[City] [District] [CDWR]") in connection
with the Lodi Energy Center Power Sales Agreement, dated as of (the "Power Sales
Agreement") among the [City] [District] [CDWR], the Northern California Power Agency (`NCPA") and
the other public entities named therein, and I have acted as counsel to the [City] [District] [CDWR] in
connection with the matters referred to herein. As such counsel I have examined and am familiar with (i)
those documents relating to the existence, organization and operation of the [City] [District] [CDWR], (ii)
all necessary documentation of the [City] [District] [CDWR] relating to the authorization, execution and
delivery of the Power Sales Agreement and (iii) an executed counterpart of the Power Sales Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings given such terms in the
Power Sales Agreement
Based upon the foregoing and an examination of such other information, instruments and
documents as I deem necessary or advisable to enable me to render this opinion, I am of the opinion that:
1. The [City] [District] [CDWR] is a duly created, organized and existing under
the laws of the State of California (the "State") and duly qualified to operate and maintain its Enterprise.
2. The Participant has full legal right, power and authority to enter into the Power Sales
Agreement and to carry out and consummate all transactions contemplated thereby, and the [City]
[District] [CDWR] has complied with the provisions of applicable law in all matters relating to such
transactions.
3. The Power Sales Agreement has been duly authorized, executed and delivered by the
[City] [District] [CDWR], is in full force and effect and, assuming due authorization, execution and
delivery by NCPA and the other Participants of the Power Sales Agreement, constitutes the legal, valid
and binding obligation of the [City] [District] [CDWR] enforceable in accordance with its terms, subject
only to applicable bankruptcy, insolvency, reorganization and other similar laws affecting creditors' rights
generally and to general principles of equity.
4. No order, filing, exemption of or registration with, approval, consent or authorization of
any governmental or public agency, authority or person is required in connection with the execution and
delivery by the [City] [District] [CDWR] of the Power Sales Agreement, or the performance by the [City]
[District] [CDWR] of its obligations thereunder.
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5. The [City] [District] [CDWR] is not in material breach of or default under, and the
authorization, execution and delivery of the Power Sales Agreement and compliance with the provisions
thereof will not conflict with or constitute a breach of, or default under: (i) any instrument relating to the
organization, existence or operation of the [City] [District] [CDWR]; (ii) any loan agreement, lease
agreement, indenture, bond, note, Public Finance Contract, credit facility, resolution, commitment,
agreement or other instrument to which the [City] [District] [CDWR] is a parry or by which it or its
property or assets is bound or affected, and no event has occurred and is continuing which with the
passage of time or the giving of notice, or both, would constitute a material default or event of default
under any such instrument, which breach or default would have a material adverse impact on NCPA's
ownership or operation of the Project or the ability of the [City] [District] [CDWR] to fully perform its
obligations under the Power Sales Agreement; or (iii) any applicable constitutional provision, law, ruling,
administrative regulation, ordinance, judgment, order or decree to which the [City] [District] [CDWR] (or
any of its officers in their respective capacities as such) or its properties is subject.
6. There is no action or suit (with service of process having been accomplished) or
proceeding, inquiry or investigation at law or in equity before any court, public board or body, pending or,
to my knowledge after due inquiry, threatened against or affecting the [City] [District] [CDWR] or any
entity affiliated with the [City] [District] [CDWR] or any of its officers in their respective capacities as
such (nor to the best of my knowledge is there any basis therefor), which questions the right, power or
authority of the [City] [District] [CDWR] referred to in paragraph 2 above or the validity of the
proceeding taken by the [City] [District] [CDWR] in connection with the authorization, execution or
delivery of the Power Sales Agreement, or wherein any unfavorable decision, ruling or finding would
materially adversely affect the transactions contemplated by the Power Sales Agreement, or which, in any
way, would adversely affect the validity or enforceability of the Power Sales Agreement or the ability of
the [City] [District] [CDWR] to comply with its obligations thereunder.
7. The obligations of the [City] [District] [CDWR] to make payments under the Power Sales
Agreement (other than Capital Contributions and Contributions in Aid of Construction) constitute a cost
of purchased electric capacity and energy and the [City] [District] [CDWR] is obligated to make such
payments from its Enterprise Revenues as an operating expense.
Very truly yours,
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APPENDIXI)
PARTICIPANT ADDRESSES FOR NOTICE
Northern California Power Agency
Northern California Power Agency
Attn: Ed Warner, Lodi Energy Center Manager
651 Commerce Drive
Roseville, California, 95678
Telephone: (209)728-1387 x-22 or (209)768-5887
Facsimile:
Email: Ed.Wamerk,ncpagen.com
With a copy to
Northern California Power Agency
Attn: Ken Speer, Assistant General Manager -Generation Sevices
651 Commerce Drive
Roseville, California, 95678
Telephone:
Facsimile:
Email: Ken.Speerk,ncpa.com
City of Azusa
City of Azusa
Azusa Light & Water Department
Attn: George Morrow, Electric Utility Director
729 N. Azusa Avenue
P.O. Box 9500
Azusa, California 91702-9500
Telephone: (626)812-5214
Facsimile: (626)334-3163
Email: gmorrowQci.azusa.ca.us
Bay Area Rapid Transit District
Bay Area Rapid Transit District
Attn: Frank Schultz, Power Resources Manager
300 Lakeside Drive, 16th Floor
Oakland, California 94612-3534
Telephone: (510)464-6435
Facsimile: (510)464-6118
Email: fschult(k bart.gov
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Modesto Irrigation District
Modesto Irrigation District
Attn: Gregory Salyer, P.E.,
Resource Planning and Development Manager
P.O. Box 4060
1231 Eleventh Street
Modesto, California 95352
Telephone: (209)526-7550
Facsimile: (209)526-7575
Email: regs(c-)mid.org
California Department of Water Resources:
Department of Water Resources
Attn: Chi Doan
Chief, Power Contracts Branch
3310 El Camino Avenue, LL94
Sacramento, California 95821
Telephone: (916) 574-0612
Facsimile: (916) 574-0660
Email: chin,water.ca.gov
Plumas-Sierra Rural Electric Cooperative
Plumas-SierraREC
Attn: Bob Marshall, General Manager
73233 Highway 70
Portola, California 96122-7064
Telephone: (530)832-4261
Facsimile: (530)832-6070
Email: marshallk,psln.com
City of Biggs
City of Biggs
Attn: Pete Carr, City Administrator
465 "C" Street
P.O. Box 307
Biggs, California 95917-0307
Telephone: (530)868-5493
Facsimile: (530)868-5239
Email: biggsl biggs-ca.ggy
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City of Gridley
City of Gridley
Attn: Rob Hickey, City Administrator
685 Kentucky Street
Gridley, California 95948-2117
Telephone: (530)846-5695
Facsimile: (530)846-3229
Email: rhickev(i�wridlev.ca.us
City of Healdsburg
City of Healdsburg
Attn: Elizabeth Kirkley, Electric Utility Director
435 Allan Court
Healdsburg, California 95448
Telephone: (707)431-3346
Facsimile: (707)431-2710
Email: ekirkley(a),ci.healdsburg.ca.us
City of Lodi
City of Lodi
Attn: Ken Weisel, Acting Utility Director
221 W. Pine Street
Lodi, California 95240
Telephone: (209)333-6762
Facsimile: (209)333-6839
Email: kweisel@,lodielectric.cm
City of Lompoc
City of Lompoc
Attn: Ronald Stassi, Utility Director
100 Civic Center Plaza
P.O. Box 8001
Lompoc, California 93438-8001
Telephone: (805)875-8299
Facsimile: (805)875-8399
Email: r stassiOci.lompoc.ca.us
City of Oakland- Port of Oakland
Port of Oakland
Attn:
Oakland, California
Telephone:
Facsimile:
Email:
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City of Santa Clara
Silicon Valley Power
Attn: John Roukema, Electric Utility Director
1500 Warburton Avenue
Santa Clara, California 95050
Telephone: (408)261-5490
Facsimile: (408)249-0217
Email: jroukeWsiliconvalleypower.cm
City of Ukiah
City of Ukiah
Attn: Mel Grandi, Utility Director
300 SeminaryAvenue
Ukiah, California 95482
Telephone: (707)463-6298
Facsimile: (707)463-6740
Email: mgrandi&cityofukiah.com
Power and Water Resources Purchasing Authority
Power and Water Resources Purchasing Authority
Attn: Kent W. Palmerton, General Manager
2106 Homewood Way, Ste 100
Carmichael, California 95608
Telephone: (916) 483-5368
Facsimile: (916) 485-3537
Email: kent&,wkpahnerton.com
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APPENDIX E
STATE OF CALIFORNIA
GENERAL TERMS AND CONDITIONS
This Appendix E contains standard terms required by the State of California and which apply only to
NCPA as part of the Agreement to which this Appendix E is an appendix.
APPROVAL: This Agreement is of no force or effect until signed by both NCPA and CDWR and
approved by the Department of General Services, if required. Contractor may not commence
performance until such approval has been obtained.
2. AUDIT: Contractor agrees that the awarding department, the Department of General Services, the
Bureau of State Audits, or their designated representative shall have the right to review and to
copy any records and supporting documentation pertaining to the performance of this Agreement.
Contractor agrees to maintain such records for possible audit for a minimum of three (3) years
after final payment, unless a longer period of records retention is stipulated. Contractor agrees to
allow the auditor(s) access to such records during normal business hours and to allow interviews
of any employees who might reasonably have information related to such records. Further,
Contractor agrees to include a similar right of the State to audit records and interview staff in any
subcontract related to performance of this Agreement. (Gov. Code 98546.7, Pub. Contract Code
§ 10115 et seq., CCR Title 2, Section 1896).
3. INDEPENDENT CONTRACTOR Contractor, and the agents and employees of Contractor, in
the performance of this Agreement, shall act in an independent capacity and not as officers or
employees or agents of the State.
4. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, Contractor and
its subcontractors shall not unlawfully discriminate, harass, or allow harassment against any
employee or applicant for employment because of sex, race, color, ancestry, religious creed,
national origin, physical disability (including HIV and AIDS), mental disability, medical
condition (cancer), age (over 40), marital status, and denial of family care leave. Contractor and
subcontractors shall insure that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment. Contractor and subcontractors
shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code § 12990
(a -f) et seq.) and the applicable regulations promulgated thereunder (California Code of
Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment
and Housing Commission implementing Government Code Section 12990 (a -f), set forth in
Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this
Agreement by reference and made a part hereof as if set forth in full. Contractor and its
subcontractors shall give written notice of their obligations under this clause to labor
organizations with which they have a collective bargaining or other Agreement.
Contractor shall include the nondiscrimination and compliance provisions of this clause in all Major
Contracts.
5. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES contained in
Appendix F to the Agreement are hereby incorporated by reference and made a part of this
Agreement by this reference as if attached hereto.
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6. TIMELINESS: Time is of the essence in this Agreement.
7. COMPENSATION: The consideration to be paid Contractor, as provided herein, shall be in
compensation for all of Contractor's expenses incurred in the performance hereof, including
travel, per diem, and taxes, unless otherwise expressly so provided.
8. CHILD SUPPORT COMPLIANCE ACT: "For any Agreement in excess of $100,000, the
contractor acknowledges in accordance with Public Contract Code 7110, that:
(a) The contractor recognizes the importance of child and family support obligations and
shall fully comply with all applicable state and federal laws relating to child and family
support enforcement, including, but not limited to, disclosure of information and
compliance with earnings assignment orders, as provided in Chapter 8 (commencing with
section 5200) of Part 5 of Division 9 of the Family Code; and
(b) The contractor, to the best of its knowledge is fully complying with the earnings
assignment orders of all employees and is providing the names of all new employees to
the New Hire Registry maintained by the California Employment Development
Department."
9. PRIORITY HIRING CONSIDERATIONS: If the Agreement includes services in excess of
$200,000, NCPA shall give priority consideration in filling vacancies in positions funded by the
Agreement to qualified recipients of aid under Welfare and Institutions Code Section 11200 in
accordance with Public Contract Code Section 10353.
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APPENDIX F
CERTIFICATION CLAUSES
THIS APPENDIX F CONTAINS THE STATE OF CALIFORNIA CCC 307. CCC 307 CONTAINS
SEVEN (7) PROVISIONS PERTAINING TO CONTRACTOR CERTIFICATION CLAUSES AND
EIGHT (8) PROVISIONS PERTAINING TO DOING BUSINESS WITH THE STATE OF
CALIFORNIA, ALL OF WHICH ARE INCLUDED FOR REFERENCE. CCC 307 APPLIES TO THIS
AGREEMENT ONLY WITH RESPECT TO NCPA AND CDWR AND AS ACCEPTED, MODIFIED
OR DESCRIBED BY PROVISION BELOW.
CONTRACTOR CERTIFICATION CLAUSES
1) STATEMENT OF COMPLIANCE —NOT APPLICABLE, NCPA IS A PUBLIC ENTITY.
2) DRUG-FREE WORKPLACE REQUIREMENTS —ACCEPTED.
3) NATIONAL LABOR RELATIONS BOARD CERTIFICATION—NOT APPLICABLE, NCPA
IS A PUBLIC ENTITY.
4) CONTRACT FOR LEGAL SERVICES $50,000 OR MORE- PRO BONO REQUIREMENT —
NOT APPLICABLE; NCPA IS NOT PERFORMING LEGAL SERVICES FOR CDWR.
5) EXPATRIATE CORPORATIONS—ACCEPTED.
6) SWEATFREE CODE OF CONDUCT — NOT APPLICABLE, NCPA IS NOT FURNISHING
ANY APPAREL, GARMENTS OR CORRESPONDING ACCESSORIES TO CDWR.
7) DOMESTIC PARTNERS - NOT APPLICABLE/ WAIVED PER PUBLIC CONTRACT CODE
SECTION 10295.3(C)(4).
ccc-307
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CERTIFICATION
I, the official named below, CERTIFY UNDER PENALTY OF PERJURY that I am duly authorized to
legally bind the prospective Contractor to the clause(s) listed below. This certification is made under the
laws of the State of California.
Contractor/Bidder Firm Name (Printed) I Federal ID Number
By (Authorized Signature)
Date Executed
Executed in the County of
a. Publish a statement notifying employees that unlawful manufacture, distribution,
dispensation, possession or use of a controlled substance is prohibited and specifying
actions to be taken against employees for violations.
b. Establish a Drug -Free Awareness Program to inform employees about:
I) the dangers of drug abuse in the workplace;
2) the person's or organization's policy of maintaining a drug-free workplace;
3) any available counseling, rehabilitation and employee assistance programs; and,
4) penalties that may be imposed upon employees for drug abuse violations.
C. Every employee who works on the proposed Agreement will:
1) receive a copy of the company's drug-free workplace policy statement; and,
2) agree to abide by the terms of the company's statement as a condition of
employment on the Agreement.
Failure to comply with these requirements may result in suspension of payments under the Agreement or
termination of the Agreement or both and Contractor may be ineligible for award of any future State
agreements if the department determines that any of the following has occurred: the Contractor has made
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false certification, or violated the certification by failing to carry out the requirements as noted above.
(Gov. Code $8350et seq.)
2. EXPATRIATE CORPORATIONS: Contractor hereby declares that it is not an expatriate
corporation or subsidiary of an expatriate corporation within the meaning of Public Contract
Code Section 10286 and 10286. 1, and is eligible to contract with the State of California.
DOMESTIC PARTNERS: For contracts over $100,000 executed or amended after January 1,
2007, the contractor certifies that contractor is in compliance with Public Contract Code section
10295.3.
DOING BUSINESS WITH THE STATE OF CALIFORNIA
1) CONFLICT OF INTEREST—ACCEPTED.
2) LABOR CODE/WORKERS' COMPENSATION—ACCEPTED.
3) AMERICANS WITH DISABILITIES ACT - ACCEPTED.
4) CONTRACTORNAME CHANGE —ACCEPTED.
5) CORPORATE QUALIFICATIONS TO DO BUSINESS IN CALIFORNIA — NOT
APPLICABLE, NCPA IS NOT A CORPORATION.
6) RESOLUTION —ACCEPTED.
7) AIR OR WATER POLLUTION VIOLATION — ACCEPTED.
8) PAYEE DATA RECORD FORM STD. 204 — NOT APPLICABLE' NCPA IS A
GOVERNMENTAL ENTITY.
DOING BUSINESS WITH THE STATE OF CALIFORNIA
The following laws apply to persons or entities doing business with the State of California.
1. CONFLICT OF INTEREST: Contractor needs to be aware of the following provisions regarding
current or former state employees. If Contractor has any questions on the status of any person
rendering services or involved with the Agreement, the awarding agency must be contacted
immediately for clarification.
Current State Employees (Pub. Contract Code § 10410):
1). No officer or employee shall engage in any employment, activity or enterprise from which the
officer or employee receives compensation or has a financial interest and which is sponsored or
funded by any state agency, unless the employment, activity or enterprise is required as a
condition of regular state employment.
2). No officer or employee shall contract on his or her own behalf as an independent contractor with
any state agency to provide goods or services.
Former State Employees (Pub. Contract Code § 10411):
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1). For the two-year period from the date he or she left state employment, no former state officer or
employee may enter into a contract in which he or she engaged in any of the negotiations,
transactions, planning, arrangements or any part of the decision-making process relevant to the
contract while employed in any capacity by any state agency.
2). For the twelve-month period from the date he or she left state employment, no former state
officer or employee may enter into a contract with any state agency if he or she was employed by
that state agency in a policy-making position in the same general subject area as the proposed
contract within the 12-monthperiod prior to his or her leaving state service.
If Contractor violates any provisions of above paragraphs, such action by Contractor shall render this
Agreement void. (Pub. Contract Code § 10420)
Members of boards and commissions are exempt from this section if they do not receive payment other
than payment of each meeting of the board or commission, payment for preparatory time and payment for
per diem. (Pub. Contract Code § 10430 (e))
2. LABOR CODE/WORKERS' COMPENSATION: Contractor needs to be aware of the provisions
which require every employer to be insured against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions, and Contractor affirms to comply
with such provisions before commencing the performance of the work of this Agreement. (Labor
Code Section 3700)
AMERICANS WITH DISABILITIES ACT: Contractor assures the State that it complies with the
Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of
disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42
U.S.C. 12101 et seq.)
4. CONTRACTOR NAME CHANGE: An amendment is required to change the Contractor's name
as listed on this Agreement. Upon receipt of legal documentation of the name change the State
will process the amendment. Payment of invoices presented with a new name cannot be paid
prior to approval of said amendment.
6. RESOLUTION: A county, city, district, or other local public body must provide the State with a
copy of a resolution, order, motion, or ordinance of the local governing body which by law has
authority to enter into an agreement, authorizing execution of the agreement.
7. AIR OR WATER POLLUTION VIOLATION: Under the State laws, the Contractor shall not be:
(1) in violation of any order or resolution not subject to review promulgated by the State Air
Resources Board or an air pollution control district; (2) subject to cease and desist order not
subject to review issued pursuant to Section 13301 of the Water Code for violation of waste
discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of
provisions of federal law relating to air or water pollution.
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Lodi Energy Center
Project Management and Operations Agreement
TABLE OF CONTENTS
PARTIES
RECITALS
ARTICLE 1:
DEFINITIONS
ARTICLE 2:
PROJECT PARTICIPANTS
ARTICLE 3:
NCPA'S OBLIGATIONS
ARTICLE 4:
PROJECT PARTICIPANT COMMITTEE
ARTICLE 5:
PROJECT OPERATIONS AND DISPATCH SERVICES
ARTICLE 6:
ALLOCATION OF NCPA ADMINISTRATIVE COSTS AND JPA COST
ASSESSMENT FOR NON-MEMBERS
ARTICLE 7:
DIFFERENTIAL TRANSMISSION COST ADJUSTMENT
ARTICLE 8:
ACCOUNTING AND AUDITING
ARTICLE 9:
BILLING AND BILLING DISPUTES
ARTICLE 10:
AGREEMENT SCHEDULES
ARTICLE 11:
SHARED FACILITIES AND COST SHARING
ARTICLE 12:
PROJECT FUNDS
ARTICLE 13:
POTENTIAL PROJECT IMPACT
ARTICLE 14:
TERM OF AGREEMENT
ARTICLE 15:
NOTICES
ARTICLE 16:
WAIVER
ARTICLE 17:
UNCONTROLLABLE FORCES
ARTICLE 18:
LIABILITY
ARTICLE 19:
REPORTS
ARTICLE 20:
ASSIGNMENT OF AGREEMENT
ARTICLE 21:
SETTLEMENT OF DISPUTES
ARTICLE 22:
MISCELLANEOUS PROVISIONS
ARTICLE 23:
SPECIAL PROVISIONS APPLYING TO CDWR AND NCPA ONLY
1
PMOA Agreement Schedules
Agreement Schedule 0.00
Introduction to Agreement Schedules
Agreement Schedule 1.00
Scheduling and Dispatch Operations and Economic Criteria
Exhibit 1
Heat Rate Curve
Exhibit 2
VOM
Exhibit 3
Margin
Exhibit 4
GenBenefit
Exhibit 5
CAISO Settlement Charge Matrix
Agreement Schedule 2.00
Fuel Supply Procurement, Delivery, and Management
Agreement Schedule 300
Participant Requested Operations During Non -Economic Periods
Agreement Schedule 4.00
Shared Facilities and Cost Sharing
Agreement Schedule 5.00
Project Funds
Agreement Schedule 6.00
Contact List
Agreement Schedule 7.00
Differential Transmission Cost Adjustment
Agreement Schedule 8.00
Delegation of Authority
Agreement Schedule 9.00
LEC Project Participants and their Shares
Agreement Schedule 10.00
Billing and Payments
Appendix A
General Terms and Conditions between CDWR and NCPA
I1
PARTIES
This Lodi Energy Center Project Management and Operations Agreement (this
"Agreement"), made and entered into as of this 1 st day of , 2010, by and between the
NORTHERN CALIFORNIA POWER AGENCY, a joint powers agency and public entity
organized under the laws of the State of California ("NCPA"), and each of the undersigned entities
("Participants", sometimes hereinafter referred to individually as "Participant" and, together with
NCPA, as "Parties" or individually as "Party").
RECITALS
This Agreement (capitalized terms used herein and not otherwise defined shall have the
meanings given such terms pursuant to Article 1 of this Agreement) is made with reference to the
following facts among others:
A. NCPA was created pursuant to the provisions relating to the joint exercise of powers
contained in the Act and the JPA by its members for the purpose of jointly and cooperatively
undertaking planning, financing, development, acquisition, construction, operation and maintenance
of projects for the generation or transmission of electric energy in accordance with the Act.
B. Pursuant to the terms of the Act and the JPA, NCPA has the power to plan, develop,
finance, own, acquire, design, construct, operate, maintain and repair electric generation and
transmission projects or cause such projects to be planned, financed, developed, acquired,
constructed, operated, maintained and repaired, and to provide by agreement with a public agency
of the State of California to perform such activities.
C. The Participants have investigated the feasibility of constructing a generating facility
called the Lodi Energy Center, including all necessary and appurtenant facilities thereto, the
applicable portion of any common facilities, interconnection facilities and all related facilities
(hereinafter referred to as the "Project," as more fully described in Appendix B of the Power Sales
Agreement ("PSA") entitled "Description of the Initial Facilities"), in order to, among other things,
provide Capacity and Energy, including related Attributes, for the Participants.
D. NCPA has entered into a PSA with the Participants for the sale of, in the aggregate,
the entire output of the Project to the Participants.
E. NCPA will own the Project and, pursuant to the terms of the PSA, is responsible for
the ownership, operation and maintenance of the Project.
F. The PSA provides for the establishment of a Participant Committee ("PPC"),
composed of representatives of the Parties to the PSA, to exercise the powers and duties of the PPC
with respect to the operation and maintenance of the Project.
G. The purpose of this Agreement is to set forth the agreement among the Parties on the
management and operation of the Project.
H. Each of the Parties intends to observe the provisions of this Agreement in good faith
and shall cooperate with all other Parties in order to achieve the full benefits of joint design,
construction and operation of the Project.
1
LEC Project Management and Operations Agreement
I. The Participants are public entities which seek to obtain the benefits of the Project to
economically meet the needs of their ratepayers or for their operations or facility loads.
J. This Agreement is intended to promote and ensure equitable and fair treatment of all
Participants; specifically, it is intended that all Participants may seek the benefits of the Project,
without disadvantaging any other Participant.
K. The Parties generally intend that NCPA as Project operation manager will operate
the Project when it is economic to do so, and Participants will take available Energy and Capacity
and other Attributes proportionally according to their GES.
AGREEMENT
For and in consideration of the premises and the mutual covenants and agreements
hereinafter set forth, it is agreed by and between the Parties hereto as follows:
A. DEFINITIONS: The definitions in the PSA are incorporated herein by reference.
Other terms are defined in Article 1- "Definitions" and Agreement Schedule 0.00. In the event of a
conflict between the PSA and any definition in this Agreement, the PSA's definition applies, unless
the Parties agree otherwise.
B. RELATION TO PSA: This Agreement does not amend, alter or revise the PSA, and
Participants retain all rights and obligations under the PSA. In the event of a conflict between the
PSA and this Agreement, the PSA shall prevail.
C. RULES OFCONSTRUCTION: The Rules of Construction in the PSA
contained in Section 4.96 apply to this Agreement.
2
LEC Project Management and Operations Agreement
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, in either the singular or plural number, the following
terms shall have the following respective meanings:
1.1. "Act" has the meaning given to it in Section 4.2 of the PSA.
1.2. "Attributes" means any and all credits, benefits, emissions reductions, offsets, and
allowances, howsoever entitled, attributable to the Project.
1.3. "Balancing Authority" means the responsible entity that integrates resource plans ahead of
time and maintains generation -load interchange -balance within a Balancing Authority Area,
and supports the applicable interconnected electric system network frequency in real time, or
as redefined by the North American Electric Reliability Corporation or its successor.
1.4. "Balancing Authority Area" means the collection of generation, transmission, and loads
within the metered boundaries of the Balancing Authority. The Balancing Authority
maintains load -resource balance within this area, or as redefined by the North American
Electric Reliability Corporation or its successor.
1.5. "Billing Statement" has the meaning given it in Section 4.7 of the PSA.
1.6. "Business Day" means Monday through Friday, except for federal or state holidays.
1.7. "CAISO" means the California Independent System Operator, a non-profit public benefit
corporation responsible for the provision of fair and open transmission access and
maintaining reliable and efficient operation of that portion of the electric grid within the
State of California referenced pursuant to Chapter 2.3, Part 1, Division 1 of the California
Public Utilities Code.
1.8. "Capacity" has the meaning given to it in Section 4.9 of the PSA.
1.9. "Commercial Operation Date" has the meaning given to it in Section 4.17 of the PSA.
1.10. "Commission" means the governing body of NCPA established pursuant to the NCPA JPA.
1.11. "CT1" means the Combustion Turbine Project No. 1, which consists of five General Electric
Frame 5 simple cycle electrical generating units rated at a nominal generating capacity of 25
megawatts (MV) per unit. The units are located in three locations: one unit at the City of
Lodi, two units at the City of Alameda and two units at the City of Roseville.
1.12. "CT2" means the Combustion Turbine Project No. 2, which is an LM5000, steam injected
electrical generating facility rated at a nominal generating capacity of 49.9 megawatts
(MV). The CT2 is sometimes also referred to as the "STIG", and is located in Lodi,
California, on property adjacent to the City of Lodi White Slough Water Pollution Control
Facility WPCF.
1.13. "Defaulting Participant" has the meaning given to it in Section 4.20 of the PSA.
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LEC Project Management and Operations Agreement
1.14. "Delegation of Authority" means the authority that the PPC delegates to NCPA under
Agreement Schedule 8.00.
1.15. "Economic Operations" means the Project is operated with the intent to maximize the sum
of the benefits less the sum of the costs and a pre -determined PPC approved margin.
Economic Operations is further defined in Agreement Schedule 1.00.
1.16. "Effective Date" for this Agreement means the date described in Article 14.1 of this
Agreement.
1.17. "Energy" has the meaning given it in Section 4.23 of the PSA.
1.18. "Exporting Participant" means a Participant who has no load in the Balancing Authority
Area in which the Project is located and is an original signatory to the Second Phase
Agreement.
1.19. "Facilities Agreement" means that certain agreement executed by and between NCPA and
certain of its members dated September 22,1993, as amended through February 2,2007.
1.20. "Facilities Committee" means the committee established pursuant to the Facilities
Agreement.
1.21. "FERC" means the Federal Energy Regulatory Commission.
1.22. "Fiscal Year" has the meaning given it in Section 4.28 of the PSA.
1.23. "General Manager" means the General Manager of NCPA who is the person designated by
the Commission as General Manager pursuant to the NCPA JPA and NCPA bylaws.
1.24. "GES" has the meaning given it in Section 4.33 of the PSA.
1.25. "JPA" has the meaning given it in Section 4.48 of the PSA.
1.26. "JPA Cost Assessment" means that annual contribution determined by the Commission
assessment pursuant to Article W, Section 3 (a) of the JPA.
1.27. "JPA Cost Assessment Rate" means that rate determined during NCPA's annual budget
process for the JPA Cost Assessment defined in Section 1.26 of this Agreement, which shall
require approval by the Commission and may be up to $0.15 per megawatt hour pursuant to
Article N, Section 3(a) of the JPA.
1.28. "LEC" means the Lodi Energy Center, which will be a natural gas-fired, combined -cycle
electrical generating facility rated at a nominal generating capacity of 280 megawatts (NM.
1.29. "NCPA Administrative Costs" has the meaning given to it in Section 4.56 of the PSA.
1.30. "NCPA Member" means any signatory to the NCPA JPA.
1.31. "Non-NCPA Member Participant" means any participant to an NCPA project that is not an
NCPA Member.
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LEC Project Management and Operations Agreement
1.32. "Participant" means an entity that is a signatory to the PSA, and any successor to a
Participant pursuant to the PSA.
1.33. "PMOA Schedules" or "Agreement Schedules" means the procedures, protocols and
guidelines, appended to and part of this Agreement, which are subject to change or
amendment from time to time, as set forth in this Agreement.
1.34. "PPC Approval" means the approval granted by the PPC, pursuant to Section 4.71 of the
PSA.
1.35. "Point of Delivery" has the meaning given to it in Section 4.77 of the PSA.
1.36. "Project Agreement" means an agreement, including any Second Phase Agreement, PSA or
Project Management and Operations Agreement, between NCPA and Project Participants to
enable NCPA on behalf of Project Participants to carry out plans for the construction,
operation and financing of the LEC Project.
1.37. "Project Annual Budget" has the meaning given to it in Section 4.79 of the PSA.
1.38. "Prudent Utility Practice" has the meaning given it in Section 4.83 of the PSA.
1.39. "PSA" means the Power Sales Agreement entered into among the Parties.
1.40. "Scheduling Coordinator" means the authorized agent who can execute transactions with the
Balancing Authority.
1.41. "Second Phase Agreement" means the Second Phase Agreement for Funding the Planning
and Development Activities of the Lodi Energy Center that became effective on or about
March 1, 2008, among NCPA and the Participants.
1.42. "Shared Facilities" means the facilities attached as Agreement Schedule 4.00 and which may
be revised from time to time based upon the recommendations and approvals of the
Facilities Committee, the PPC and the Commission.
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LEC Project Management and Operations Agreement
ARTICLE 2
PROJECT PARTICIPANTS
A list of Project Participants along with their respective GES in the Project is provided in the PSA,
Appendix A, and is incorporated herein. NCPA shall maintain and update as needed a list of
Participants and their respective GES in Agreement Schedule 9.00.
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LEC Project Management and Operations Agreement
ARTICLE 3
NCPA' S OBLIGATIONS
3.1 General Responsibilities. NCPA will be responsible for planning, negotiating, designing,
financing, constructing, insuring, contracting for, administering, operating, and maintaining
the Project to effectuate the delivery and sale to each Participant of its share of Capacity and
Energy, including other Attributes, from the Project, Certain specific delegations to NCPA
are described under Agreement Schedule 8. 00, Delegation of Authority.
3.2 NCPA Staff. The General Manager shall hire such staff as necessary to carry out NCPA's
obligations pursuant to this Agreement and shall have full authority and responsibility for all
personnel issues including, but not limited to, hiring, setting salaries, replacements,
discharging, disciplinary actions, authorizing training and related travel.
3.3 Duties and Authority. The General Manager shall be responsible for and have
commensurate authority to take any and all actions and perform all functions necessary to:
a. Carry out directions of the PPC and Commission with respect to matters related to
this Agreement;
b. Direct and carry out all responsibilities of NCPA pursuant to this Agreement, Project
Agreements, Agreement Schedules, or any other agreement between NCPA and
Participants related to the Project. Examples of said responsibilities include but are
not limited to the following:
Acquire property, easements, and water rights as necessary to construct and
operate the Project;
2. Obtain Federal, State, and local permits, licenses, opinions and rulings as
necessary to construct and operate the Project;
3. Direct the design and construction of the Project;
4. Recommend methods for financing the Project;
5. Operate and maintain the Project in accordance with all legal and regulatory
requirements and Prudent Utility Practice;
6. Provide for scheduling and dispatch services, as outlined in Article 5;
7. Develop a billing system and bill Participants in accordance with the terms
and conditions of the PSA and NCPA billing procedures;
8. Prepare and submit proposed budgets for the Project for the ensuing Fiscal
Year to the Commission and PPC;
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LEC Project Management and Operations Agreement
9. Prepare financial data, reports and operating information pertaining to the
Project;
10. Prepare and maintain necessary operating, maintenance, and environmental
health and safety procedures pertaining to the Project;
11. Arrange for the fuel delivery and management for the Project, including, as
appropriate, contracts with third parties for such delivery and management
service, or such other fuel supply management structure as approved by the
PPC;
12. Propose to the PPC amendments to this Agreement and its Agreement
Schedules, exhibits, or appendices; and
13. Prepare a planned outages and curtailment schedule for the Project prior to
the beginning of each Fiscal Year for PPC Approval.
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LEC Project Management and Operations Agreement
ARTICLE 4
PROJECT PARTICIPANT COMMITTEE
4.1 Establishment of PPC
The establishment of the PPC shall be governed by the provisions of the PSA, Section 8.1.
4.2 PPC Operations
The operations of the PPC shall be governed by the provisions of the PSA, Section 8.2.
4.3 PPC Approval
PPC Approval shall be governed by the provisions of the PSA, Section 8.3 and Article 4.4 of
this Agreement.
4.4 PPC Responsibilities
The PPC shall have the following responsibilities related to this Project, in addition to those
listed in Section 8.5 of the PSA:
4.4.1 Elect a Chairperson, Vice Chairperson and/or other PPC positions as deemed
necessary and prudent, to conduct the business of the PPC pursuant to this
Agreement and the PSA.
4.4.2 If the pre -construction studies or other related Project development activities have
not been completed by the Effective Date of this Agreement, oversee the
continuation and completion of such studies or activities.
4.4.3 Review and approve the proposed acquisition of property, easements and water
rights by NCPA staff.
4.4.4 Review and approve project studies conducted by NCPA staff or consultants related
to the Project.
4.4.5 Review and approve proposed NCPA actions relative to obtaining Federal, State, and
local permits, licenses, opinions and rulings.
4.4.6 Review and approve plans, procedures and contracts for the procurement of fuel,
equipment, materials and services.
4.4.7 Provide liaison among NCPA and the Participants at the management level with
respect to the development, financing, construction, improvement, maintenance,
repair, replacement and operation of the Project.
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LEC Project Management and Operations Agreement
4.4.8 Exercise general supervision over any committee or subcommittee established.
4.4.9 Make recommendations to NCPA with respect to the development, financing,
management, construction, improvement, maintenance, repair, replacement and
operation of the Project.
4.4. 10 Review, modify and approve the form of written statistical and administrative reports
and information and other similar records to be furnished to the PPC by NCPA.
4.4.11 Review and approve annual maintenance schedules.
4.4.12 Review, modify and approve dispatch and scheduling criteria contained in
Agreement Schedule 1.00.
4.4.13 Review, modify and approve all Project budgets and revisions, including operating
and capital budgets, prepared and submitted by NCPA.
4.4.14 Review, modify and approve recommendations by NCPA made pursuant to the
provisions of this Agreement and the PSA.
4.4.15 Review, modify and approve all Project financing or other provisions for the
payment or financing thereof, with such review, modification and approval subject to
each Participant's association with a particular Indenture Group or Indenture Groups
as applicable, as identified in Section 8.4 of the PSA,.
4.4.16 Review, modify and approve Project related liability, business interruption and other
applicable insurance including, without limitation, the establishment of any self-
insurance program and the maximum amount or amounts of an uninsured claim that
NCPA may settle without PPC Approval.
4.4.17 Review, modify and approve procedures for Participants' optional Capital
Contributions, as described in Section 14.5 of the PSA.
4.4.18 Establish a schedule of meetings, which shall be held at least four (4) times each year
and conducted in accordance with the Ralph M. Brown Act.
4.4.19 Initiate, review and make recommendations concerning proposed amendments to the
PSA, this Agreement and to its Agreement Schedules.
4.4.20 Perform such other functions and duties as may be provided for under the PSA, this
Agreement, or as may otherwise be appropriate or beneficial to the Project.
4.5 Additional Subcommittees
The PPC may establish subcommittees pursuant to Section 8.6 of the PSA.
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LEC Project Management and Operations Agreement
4.6 Written Record
Any written records maintained or generated by the PPC shall be made pursuant to Section
8.7 of the PSA.
4.7 Change in Representative
Each Participant shall promptly give notice in writing to the other Participants and NCPA of
any changes in the designation of its representative(s), including any change in its voting
representative, on any committee or subcommittee, and NCPA shall promptly give notice to
the Participants of any changes in the designation of NCPA's representative on the PPC or
any committee or subcommittee.
4.8 Costs of Consultants
The employment and costs of consultants shall be governed by Section 8.8 of the PSA.
4.9 Representative's Expenses
Any expenses incurred by any representative or alternate representative of any Participant
shall be governed by Section 8.9 of the PSA.
4.10 Inaction by PPC.
Any inaction or inability to act by the PPC shall be governed by Section 8.10 of the PSA.
4.11 Compliance With Indentures
Compliance with the Indenture Groups for the planning, financing, constructing, managing,
operating and maintaining the Project shall be governed by Section 8.11 of the PSA.
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LEC Project Management and Operations Agreement
ARTICLE 5
PROJECT OPERATIONS AND DISPATCH SERVICES
5.1 Operations.
NCPA will operate the Project by adhering to all applicable governing laws and regulations,
Prudent Utility Practices, and in accordance with the principles and guidelines outlined in this
Article, and which shall be reflected in the protocols in Agreement Schedule 1.00 (Scheduling and
Dispatch Operations and Economic Criteria), including its exhibits, and Agreement Schedule 2.00
(Gas Supply Procurement, Delivery and Management). The Project shall be managed and operated
in a manner which shall not diminish the rights of a Participant to receive its GES. The following
principles and guidelines shall be followed in operating the Project:
5. 1.1 Economic Operations.
a. NCPA will operate the Project on an Economic Operations basis as further
described in Agreement Schedule 1.00.
b. NCPA shall allocate Project Energy and Capacity consistent with Section 6 of
the PSA and costs (e.g. fuel requirements) consistent with Section 17 of the
PSA to Participants in accordance with their respective GES.
C. If a Participant desires physical delivery of its GES of Energy, Capacity and/or
other Attributes, NCPA will deliver such Participant's GES of Project Energy,
Capacity and/or other Attributes to a Participant at the Point of Delivery
designated by the Balancing Authority for the Project or effect a unit
contingent export. If a Participant does not desire physical delivery of its GES
of Energy, Capacity and/or other Attributes, NCPA shall liquidate such
Participant's GES of Project Energy, Capacity and/or other Attributes in the
markets on behalf of such Participant. NCPA has no obligation to provide
transmission service to any Participant pursuant to this Agreement beyond the
Point of Delivery. The Project Participant will be responsible for all costs
related to the scheduling and delivery of Project Energy, Capacity and other
Attributes beyond the Point of Delivery.
d. If the Project is not scheduled to operate based on Economic Operations
criteria during one or more periods pursuant to Agreement Schedule 1.00, and
the Project is available for operations, then any Participant (or group of
Participants) may request that NCPA operate the Project for such periods. The
Participant(s) must bear the full costs for such operation. Agreement Schedule
3.00 contains the procedures and cost responsibilities of such requests.
e. The PPC shall approve and may, from time to time, revise the calculations and
parameters (e.g. heat -rate curves, start-up costs, physical operating plant
limits, shutdown costs, and the like) used by NCPA to determine Economic
Operations as set forth in Agreement Schedule 1.00.
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LEC Project Management and Operations Agreement
f. The Project will be bid and operated in a manner to preserve the value of all
Energy, Capacity and other Attributes.
g, Forward commitments by NCPA of Project Energy, Capacity and other
Attributes will be limited to the daily and spot markets; however, an individual
Participant(s) may allow NCPA to enter into forward commitments beyond the
daily and spot market periods up to its GES of Energy, Capacity and other
Attributes. Such forward commitments shall be executed under a separate
agreement between NCPA and the individual Participant(s) and shall not affect
the GES of the other Participants.
h. In the case of a Defaulting Participant, the limitation on forward commitments
identified in Section 5. 1.1 (g) shall not limit any actions or remedies available
under the PSA.
5.1.2 Fuel Procurement.
a. NCPA is responsible for arranging for fuel procurement, delivery and
management service on a daily basis, as described in Agreement Schedules 1.00
and 2.00.
b. NCPA may contract with a third party for such fuel procurement, delivery and
management service, or may use another fuel supply management structure as
approved by the PPC.
c. Each Participant shall be responsible for its GES of all costs of fuel and fuel
management services. Participants may provide up to their GES of the Project's
total fuel requirements, as provided in Agreement Schedules 1.00 and 2.00,
provided that no additional costs are incurred by other Participants by reason of
such self-supplyof fuel.
d. Billing charges will include fuel commodity and transportation charges to the
plant burner tip plus any applicable ancillary charges (e.g. fuel management
administration fees, scheduling imbalance adjustments, and the like), adjusted
for Participant supplied fuel. Any additional charges resulting from Participant
supplied fuel will be fully charged to such Participant.
e. Forward commitments by NCPA for fuel will be limited to the daily and spot
markets; however, individual Participant(s) may allow NCPA to enter into
forward commitments beyond the daily and spot market periods up to its GES
of fuel. Such forward commitments shall be executed under a separate
agreement between NCPA and the individual Participant(s) and shall not affect
the GES of the other Participants.
f. In the case of a Defaulting Participant, the limitation on forward commitments
identified in Section 5.1.2(e) shall not limit any actions or remedies available
under the PSA.
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LEC Project Management and Operations Agreement
ARTICLE 6
ALLOCATION OF NCPA ADMINISTRATIVE COSTS AND JPA COST ASSESSMENT
FOR NON-MEMBERS
6.1 NCPA Administrative Costs
NCPA Administrative Costs, including power management costs, shall be allocated to
Participants pursuant to Section 7.2 of the PSA.
6.2 Additional Cost for Non -Members
Since NCPA members pay a JPA Cost Assessment under the JPA, they will not be subject to
an additional JPA Cost Assessment under this Agreement. However, Non-NCPA Member
Participants will be subject to the JPA Cost Assessment in accordance to this Article 6.2,
and NCPA shall use the same JPA Cost Assessment Rate that the NCPA Members pay, but
only as applied to each Participant's respective GES of Energy. Such JPA Cost Assessment
shall be charged in twelve equal billings, be separately identified for each Non-NCPA
Member Participant and be included in the Billing Statements. If a Non-NCPA Member
Participant later becomes an NCPA Member, such Participant will no longer be required to
pay the additional costs as described in this Article 6.2. If an NCPA Member Participant
later withdraws from NCPA and is no longer a NCPA Member, such Participant will
thereafter be subject to the JPA Cost Assessment as described in this Article 6.2.
6.2.1. JPA Cost Assessment.
a. Until a full calendar year after the Commercial Operation Date is achieved, the
forecast methodology below shall be used to determine the JPA Cost
Assessment for each Non-NCPA Member Participant:
JPA Cost Assessment = JPA Cost Assessment Rate x GES x 80% capacity
factor x 280 MW x 8760 hours
The JPA Cost Assessment for the first Fiscal Year shall be prorated for the
remaining number of months of commercial operation in the first Fiscal Year.
b. Subsequent Fiscal Years will be based on the previous full calendar year's
actual generation measured in MWh.
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LEC Project Management and Operations Agreement
ARTICLE 7
DIFFERENTIAL TRANSMISSION COST ADJUSTMENT
7.1 Differential Transmission Cost Adjustment
Each Participant acknowledges that Exporting Participant(s) may or could have their GES of
Project Energy delivered to a different Balancing Authority. As a result, such Exporting
Participant(s) may be subject to additional or duplicative Balancing Authority Area charges.
All Participants agree that the PPC is authorized to establish, approve, implement,
administer and revise from time to time a differential transmission cost adjustment to
mitigate or partially mitigate additional or duplicative Balancing Authority Area charges
applicable to affected Exporting Participant(s) when Project Energy is delivered to such
Exporting Participant(s)' load. NCPA will track the cumulative charges and benefits for
each Exporting Participant. The PPC will consider the following general principles, and
such other protocols and guidelines as it deems necessary, pursuant to Agreement Schedule
7.00, in determining the differential transmission cost adjustment.
7. 1.1 Limitations
Any differential transmission cost adjustment shall apply only to Exporting
Participant(s) and shall be limited to that portion of the Exporting Participant(s)'
GES of the Project that is exported from the Balancing Authority Area in which the
Project is located to another Balancing Authority Area adjacent to the Project and in
which the Exporting Participant has load.
7.1.2 Calculation Methodolopy
The established differential transmission cost adjustment shall be understandable by
all Participants, calculable, and based on publicly available information sources or
agreed upon factors as determined by the PPC, pursuant to Agreement Schedule
7.00.
7.1.3 Miti ag tion
All Parties agree to cooperate as reasonably required to establish such Project
protocols and guidelines that reduce the expected amount and incidence of the
differential transmission cost adjustment, as more particularly described in
Agreement Schedule 7.00.
7.1.4 Other Benefits,
All Parties agree that, to the extent that an Exporting Participant receiving the benefit
of the differential transmission cost adjustment attains additional Project value above
what such Exporting Participant would have attained, or would likely have attained,
if the Project had been located in the same Balancing Authority Area as such
Exporting Participant's load subject to Section 7.1.1, these additional benefits will be
netted from the differential transmission cost adjustment as approved by the PPC,
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LEC Project Management and Operations Agreement
pursuant to Agreement Schedule 7.00. If at the end of the Fiscal Year, the
cumulative charges are greater than the cumulative benefits for an Exporting
Participant, the Exporting Participant shall be reimbursed the net amount or credited
the net amount by the Project. Any reimbursement will be billed to all Project
Participants based upon their GES. If at the end of the Fiscal Year, the cumulative
benefits are greater than the cumulative charges for an Exporting Participant, the
Exporting Participant shall reimburse or credit the Project up to any differential
transmission cost adjustments the Exporting Participant previously received. Any
reimbursement received by the Project shall be reimbursed or credited to all Project
Participants based on their GES up to the amount of differential transmission cost
adjustments each Participant has paid. For each Exporting Participant, the PPC shall
review the cumulative charges and benefits and make determination of when
payments shall be reimbursed to avoid large accumulation of obligations under this
Article. Any such reimbursement shall be calculated and credited pursuant
to Agreement Schedule 7.00. Cumulative charges and benefits that are not
reimbursed at the end of a Fiscal Year shall be carried over to the next Fiscal Year.
7.1.5 Billing
Any differential transmission cost adjustment approved for implementation by the
PPC will be billed according to the procedures approved by the PPC in Agreement
Schedule 7.00 and shall be allocated to all Participants in proportion to their
respective GES.
7.1.6 Annual Review
The PPC shall at least annually review the application and result of any applied
differential transmission cost adjustment, The PPC shall compare this cost
adjustment against the net of the actual transmission cost differential experienced
and other benefits received during the same period by the Exporting Participants, and
collect or refund any significant under or over cost adjustment amounts. In addition,
the PPC shall make any needed changes to the differential transmission cost
adjustment methodology used in Agreement Schedule 7.00 for the subsequent
period.
7.1.7 Audit Rights
Any Participant, at its own expense and upon reasonable notice to NCPA and the
PPC, may review and audit the calculation and implementation of the differential
transmission cost adjustment.
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LEC Project Management and Operations Agreement
ARTICLE 8
ACCOUNTING AND AUDITING
8.1 Records and Accounts
NCPA shall keep records and accounts for the Project pursuant to Section 7.5 of the PSA
and Article 19 of this Agreement.
8.2 SettlementData
NCPA will make settlement data, including underlying data received from the Balancing
Authority, available to the Participants. Procedures and formats for the provision of such
settlement data will be established by the PPC and NCPA from time to time.
8.3 Periodic Audit
NCPA shall arrange for periodic audits to be performed, pursuant to Section 7.6 of the PSA.
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LEC Project Management and Operations Agreement
ARTICLE 9
BILLING AND BILLING DISPUTES
Billing and billing disputes shall be handled in accordance with Section 17 of the PSA.
In addition to the monthly Billing Statements provided for in the PSA, NCPA may submit
additional invoices to the Participants to fund Project Funds as authorized under the PSA and as
provided for in Article 12 and Agreement Schedule 5.00 and the Participants shall pay such
invoices when due.
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LEC Project Management and Operations Agreement
ARTICLE 10
AGREEMENT SCHEDULES
10.1 Ap-reement Schedules
Agreement Schedules shall be established for the implementation of this Agreement. The
Agreement Schedules may be adopted, amended or deleted by the PPC subject to the
provisions of the PSA and this Agreement. NCPA Commission approval to adopt, amend or
delete an Agreement Schedule may be required, as described in Article 10.3 below. Upon
PPC Approval, adoptions, amendments, or deletions of Agreement Schedules shall be
effective immediately without the necessity of approval by the governing board or
commission of any Participant. NCPA shall upon adoption, amendment or deletion of an
Agreement Schedule ensure that each Participant is promptly provided notice of such
adoption, amendment or deletion.
10.2 Scope of Agreement Schedules
Agreement Schedules provide detailed descriptions, procedures, protocols and guidelines
(including operating and cost recovery procedures) for the operation of the Project.
10.3 Agreement SchedulesRequiring;NCPA Commission AWroval
If an Agreement Schedule could be reasonably viewed as having an impact on other NCPA
projects, but specifically excluding impacts to market prices, approval by both the PPC and
NCPA Commission will be required to adopt, amend, or delete such Agreement Schedule.
Those Agreement Schedules requiring approval of both PPC and the NCPA Commission
shall be described in Agreement Schedule 0.00, and as new Agreement Schedules are added
after the Effective Date which requires NCPA Commission approval, Agreement Schedule
0.00 will be amended to reflect such additions.
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LEC Project Management and Operations Agreement
ARTICLE 11
SHARED FACILITIES AND COST SHARING
11.1 Shared Facilities
Participants desire to equitably share and use facilities and equipment common to two or
more NCPA projects, including the CTI, CT2 and LEC projects, for the purpose of reducing
costs and improving efficiencies for all participants of these projects. Such Shared Facilities
and the basis for such cost sharing shall be included in the Schedules to the Facilities
Agreement, which governs the operations of the CT 1 and CT2..
11.1.1 Construction of Facilities: The Project will construct and pay for any new Shared
Facilities required as a result of the LEC, and particularly facilities to be shared
between the LEC and CTI and/or CT2, pursuant to the applicable project agreements.
11. 1.2 Joint Use of Facilities: NCPA and the Participants may use, operate and maintain the
Shared Facilities, attached as Agreement Schedule 4.00, according to the terms and
conditions of this Agreement and the percentage allocation of costs associated with
such Shared Facilities detailed in Agreement Schedule 4.00. Nothing in this Agreement
may be construed to create a lease, sale, or other disposition of real or personal property
of NCPA.
11. 1.3 Use of Shared Facilities: As applicable, the LEC, CTI and CT2 projects will utilize
the Shared Facilities and equipment as listed in Agreement Schedule 4.00. In
addition thereto, the LEC, CTI and CT2 projects and personnel will have:
a. Vehicular and pedestrian access rights.
b. Use of Shared Facilities for the purpose of locating, accessing, operating,
maintaining, repairing and replacing pipelines.
c. Access for locating, accessing, operating, constructing, maintaining, repairing
and replacing the steam pipeline(s), natural gas pipeline(s) and any associated
equipment currently on the LEC and/or CT2 sites or to be installed in the future.
d. Access to the office building currently on the CT2 site for the installation, use,
maintenance, repair and replacement of process control systems and related
computer hardware associated with the LEC, CT1 and CT2.
e. Access to the Shared Facilities for the purpose of locating, operating, repairing
and replacing such improvements as may be necessary from time to time.
f. Personnel associated with LEC, CT1 and CT2 shall provide reasonable notice,
each to the other, regarding any work to be conducted consistent with the above.
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LEC Project Management and Operations Agreement
11.2 Shared Cost Allocation
Shared costs shall be allocated among the LEC, CT1 and/or CT2 in one or more of the
following ways, pursuant to Agreement Schedule 4.00:
a. Headcounts allocated to each project; or
b. Capacity; or
c. Actual usage; or
d. Such other allocation mechanisms as maybe determined in Agreement Schedule 4.00.
The shared cost allocations set forth in Agreement Schedule 4.00 may be revised from time
to time when operational conditions or factors used for the shared cost allocation(s) change.
In such event, the PPC and the NCPA Facilities Committee will provide their respective
recommendations and approvals to the Commission regarding any proposed modifications
to the allocations set forth in Agreement Schedule 4.00.
11.3 Other Costs
The LEC, CTI and CT2 projects will each be solely responsible for the payment of any and
all taxes, insurance, utilities, maintenance, improvements and labor directly attributable to
the construction, operation and maintenance of the respective projects. The LEC, CT1 and
CT2 projects must pay the shared cost allocations imposed on such projects as detailed in
Agreement Schedule 4.00. The Project will pay all costs for which it is responsible in a
timely manner and will ensure no claims or liens are filed against the Project or the LEC site
property leased from the City of Lodi.
11.4 Sale of Shared Facilities
In the event NCPA seeks to sell any of the Shared Facilities the LEC, CT1 and CT2 projects
must be given reasonable notice and an opportunity to purchase such Shared Facilities.
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LEC Project Management and Operations Agreement
ARTICLE 12
PROJECT FUNDS
12.1 Proi ect Funds
In accordance with Section 21 of the PSA, this Article and Agreement Schedule 5.00 of this
Agreement, Project Funds shall be established and approved as set forth therein. Project
Funds shall be classified as either "Mandatory Project Funds" or "Additional Project
Funds." NCPA shall maintain records and provide reports for each Project Fund pursuant to
Section 7.5 of the PSA and Article 19 of this Agreement.
12.2 Mandatory Proiect Funds
The Project is financed by the issuance of notes, bonds, or other public debt ("Bonds")
secured by the provisions of multiple Indentures of Trust. The Indenture of Trust
("Indenture") is a contract(s) between NCPA and the holders of the related debt instruments.
Each Indenture establishes, among other things, various interrelated Project Funds that are
established for the protection of the holders of the Bonds. Such Project Funds established in
any NCPA Indenture or that are otherwise legally required shall be classified as Mandatory
Project Funds and are not subject to change by the PPC. A listing of the Mandatory Project
Funds for the Project is included in Agreement Schedule 5.00.
12.3 Additional Proiect Funds
Additional Project Funds may be established by from time to time, consistent with the PSA
and this Agreement, provided their establishment does not affect the funding, maintenance,
or operation of any Mandatory Project Fund. As described in Agreement Schedule 5.00,
certain Additional Project Funds are established by the Commission, the PPC, or both.
Funding mechanisms for all Additional Project Funds will be determined on a case-by-case
basis with PPC Approval.
NCPA shall maintain separate accounts for all Additional Project Funds. The interest
accrued on the balance of an Additional Project Fund shall be treated and accounted for as
an addition to the balance of such Additional Project Fund. A listing of the Additional
Project Funds for the Project is included in Agreement Schedule 5.00.
22
LEC Project Management and Operations Agreement
ARTICLE 13
POTENTIAL PROJECT IlVIPACTS
13.1 Notification
A Participant shall promptly notify NCPA and the PPC of any new or materially changed
plan(s) for additions to, retirements of, or changes in transmission or other facilities, which
are subject to the control of such Participant, and which the Participant believes or
reasonably should know could materially affect the Capacity, Energy, or other Attributes of
the Project. The PPC may review such plan(s) and suggest remedial actions, but such
remedial actions shall not be binding on such Participant.
23
LEC Project Management and Operations Agreement
ARTICLE 14
TERM OF AGREEMENT
14.1 Effective Date
This Agreement shall become effective on the date on which it has been duly executed and
delivered to NCPA by all Parties. To the extent the PSA and this Agreement are not
simultaneously executed, certain rights and obligations under this Agreement may relate
back to the effective date of the PSA.
14.2 Termination
This Agreement shall continue in effect until terminated by the first of the following to
occur: (i) the retirement of the Project; (ii) the written consent of all Participants and NCPA;
or (iii) the expiration or termination of the PSA as to all Parties. Notwithstanding the
preceding, no termination of this Agreement shall take place unless there shall have been
provided reserves for, or a means of paying for, satisfactory to the PPC, any claims against
the Project yet to be paid or settled, pursuant to Section 33 of the PSA.
24
LEC Project Management and Operations Agreement
ARTICLE 15
NOTICES
15.1 NOTICES
All notices, requests and other communications under this Agreement shall be provided in
the manner described in Section 35 of the PSA.
25
LEC Project Management and Operations Agreement
ARTICLE 16
16.1 Waiver
No waiver of the performance by a Party of any obligation under this Agreement with
respect to any default or any other matter arising in connection with this Agreement shall be
effective unless given by the NCPA Commission, as to NCPA, and by Participant's
authorized representative, as to each Participant. Any such waiver in any particular instance
shall not be deemed a waiver with respect to any subsequent performance, default or matter.
26
LEC Project Management and Operations Agreement
ARTICLE 17
UNCONTROLLABLE FORCES
17.1 Uncontrollable Forces
Except for any obligation to make payments pursuant to this Agreement or other agreements
relating to the Project, a Party shall not be considered to be in default in respect of any
obligation hereunder if prevented from fulfilling such obligationby reason of Uncontrollable
Forces, as defined in Section 4.95 of the PSA.
27
LEC Project Management and Operations Agreement
ARTICLE 18
LIABILITY
18.1 Liability and Indemnity
Section 24 of the PSA in its entirety is incorporated to apply to this Agreement.
18.2 Counsel Representation
Pursuant to the provisions of California Civil Code Section 1717 (a), each of the Parties
were represented by counsel in the negotiation and execution of this Agreement as indicated
in the signature blocks to this Agreement evidencing the approval as to form by each
Participant's legal counsel. In light of this representation, those terms of this Agreement
which dictate the responsibility for bearing any attorney's fees incurred in the litigation or
settlement in a manner inconsistent with the provisions of Section 24 of the PSA were
intentionally so drafted by the Parties.
28
LEC Project Management and Operations Agreement
ARTICLE 19
REPORTS
19.1 Reports to Participants
NCPA shall prepare and make available to each Participant the following reports:
19.1.1 Project operating reports;
19.1.2 Statements of financial position and revenues, expenses and changes in
accumulated net revenues;
19.1.3 Project Annual Budget status report;
19.1.4 Annual and monthly Project operational forecasts of projected Project Energy,
Capacity and other Attributes based on historic operations and market conditions,
forecasted market conditions and scheduled Project maintenance activities, and
other information as approved by the PPC; and
19.1.4 Such additional reports as may be required under any applicable Project
Agreement, Agreement Schedule, or as requested from time to time by the PPC
or the Participants.
19.2 Reports to Other Agencies
NCPA will submit such reports and records which are required or may be required by any
local, state, regional, federal, or international agencies, as such reports and records are
required for NCPA to fulfill its obligations under this Agreement.
29
LEC Project Management and Operations Agreement
ARTICT,R 20
ASSIGNMENT OF AGREEMENT
20.1 Binding Upon Successors
This Agreement, including the Agreement Schedules, shall inure to the benefit of and shall
be binding upon the respective successors and assignees of the Parties to this Agreement,
pursuant to Section 34 of the PSA.
20.2 Assignment
Assignment of this Agreement shall be effective only if made in conjunction with an
assignment made pursuant to the PSA.
30
LEC Project Management and Operations Agreement
ARTICLE 21
SETTLEMENT OF DISPUTES
21.1 Attorneys' Fees
In the event of a default by a Participant of any of its covenants, agreements, or obligations
hereunder, each other Party shall be entitled to recover from such Participant any and all
legal fees and costs incurred as a result of enforcing its rights hereunder.
21.2 Venue
In the event that any Party brings any action against any other Party(ies) under this
Agreement, the Parties agree that trial of such action shall be vested exclusively in the state
courts of California in the County of Sacramento.
31
LEC Project Management and Operations Agreement
ARTICLE 22
MISCELLANEOUS PROVISIONS
22.1 Amendments
No amendment or variation of the terms of this Agreement shall be valid unless made in
writing and signed by all the Parties. Provided, however, that Agreement Schedules may be
adopted, amended or deleted in accordance v,h Article 10 of this Agreement.
22.2 Integrated ted Agreement
This is an integrated agreement and contains all of the understandings of the Parties.
22.3 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 of
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 of this Agreement.
22.4 Governing Law
This Agreement shall be interpreted, governed by and construed under the laws of the State
of California without reference to any conflict of law principles.
22.5 Additional Parties
Subsequent to the initial execution of this Agreement, any new signatory to the PSA shall
also become a Party to this Agreement. In such event, NCPA shall issue a new Agreement
Schedule 9.00 reflecting the new Party's participation and GES.
22.6 Counterparts
This Agreement may be executed in any number of counterparts, and each executed
counterpart shall have the same force and effect as an original instrument and as if all the
Parties 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 thereto but having attached to it one or more signature pages.
IN WITNESS WHEREOF, each Participant has executed a counterpart of this
Agreement with the approval of its governing body, and represents and warrants that
the Participant has all requisite authority, and has duly agreed to be bound by all of
the terms and conditions of this Agreement, and NCPA has executed each
counterpart of this Agreement in accordance with the authorization of its
Commission.
32
LEC Project Management and Operations Agreement
ARTICLE 23
SPECIAL PROVISIONS APPLYING TO CDWR AND NCPA ONLY
23.1 Special Provisions
The State of California General Terms and Conditions and Certification Clauses shown in
Appendix A are incorporated in this Agreement. Appendix A applies only to CDWR and
NCPA concerning this Agreement.
33
LEC Project Management and Operations Agreement
NORTHERN CALIFORNIA POWER AGENCY
Approved as to form:
By:
Title:
Approved as to form:
By:
Title:
CITY OF BIGGS
Approved as to form:
By:
Title:
CITY OF GRIDLEY
Approved as to form:
By:
Title:
CITY OF HEALDSBURG
Approved as to form:
By:
Title:
By:
Title:
By:
Title:
By:
Title:
By:
Title:
LO -M
Title:
34
LEC Project Management and Operations Agreement
CITY OF LODI
Approved as to form:
By:
By:
Title:
Title:
CITY OF LOMPOC
Approved as to form:
By:
By:
Title:
Title:
PLUMAS SIERRA RURAL ELECTRIC COOPERATIVE
Approved as to form:
By: By:
Title: Title:
CITY OF SANTA CLARA
Approved as to form:
By: By:
Title: Title:
MODESTO IRRIGATION DISTRICT
Approved as to form:
By: By:
Title: Title:
CITY OF UKIAH
Approved as to form:
35
LEC Project Management and Operations Agreement
By:
Title:
CITY OF AZUSA
Approved as to form:
By:
Title:
BAY AREA RAPID TRANSIT
Approved as to form:
Title:
By:
Title:
By: By:
Title: Title:
CALIFORNIA DEPARTMENT OF WATER RESOURCES
Approved as to form:
By:_
Title:
PORT OF OAKLAND
Approved as to form:
By:
Title:
By:
Title:
By:
Title:
POWER AND WATER RESOURCES POOLING AUTHORITY
Approved as to form:
By: By:
Title: Title:
36
LEC Project Management and Operations Agreement
SILICON VALLEY POWER
Approved as to form:
By: By:
Ti
Ti
37
LEC Project Management and Operations Agreement
Project Management and Operations Agreement
Agreement Schedule 0.00
Introduction to PMOA Agreement Schedules
Separate Agreement Schedules have been established for this Agreement. Agreement Schedules will
provide detailed descriptions, protocols, procedures and guidelines (including operating and cost
recovery procedures) for the Project pursuant to this Agreement.
Agreement Schedules will provide for:
• Project operating procedures and protocols.
• Project specific accounting requirements.
• Project billing procedures.
• The establishment and maintenance of Project Funds.
• Fuel purchasing procedures and protocols.
• Other topics as needed in the future.
The Agreement Schedules will be organized as follows:
• Agreement Schedule 1.00 = Scheduling and Dispatch Operations and Economic Criteria
o Exhibit 1=
Heat Rate
o Exhibit 2
= VOM
o Exhibit 3
=Margin
o Exhibit 4
= GenBenefit
o Exhibit 5
= CAISO Settlement Charge Matrix*
• Agreement Schedule 2.00 = Fuel Supply Procurement, Delivery and Management
• Agreement Schedule 3.00 = Participant Requested Operations During Non -Economic Periods
• Agreement Schedule 4.00 = Shared Facilities and Cost Sharing*
• Agreement Schedule 5.00 = Project Funds**
• Agreement Schedule 6.00 = Contact List
• Agreement Schedule 7.00 �
Differential Transmission Cost Adjustment
• Agreement Schedule 8.00 =
Delegation of Authority
• Agreement Schedule 9.00 =
LEC Project Participants and their Shares
• Agreement Schedule 10.00
= Billing and Payments
• Appendix A = General Terms and Conditions between CDWR and NCPA
Agreement Schedules marked with " above require NCPA Commission approval, pursuant to Article
10 of this Agreement. Agreement Schedules marked with * * above require NCPA Commission
approval for certain sections of the Agreement Schedule as detailed in such Agreement Schedule.
Agreement Schedule 0.00
LEC Project Management and Operations Agreement
Definitions as set forth in Article 1 of this Agreement shall have the same meaning in the Agreement
Schedules. IEEE and NERC standard definitions shall also be applicable in the Agreement Schedules.
The following additional terms, when used in these Agreement Schedules, in either the singular or the
plural, shall have the following meanings:
1. "All Resources Bill" ("ARB") means the single, combined monthly bill from NCPA to a
Participant that includes all operating project, plant, and other program costs and revenues
contained in the then fiscal year operating Project Annual Budget at the summary level,
pursuant to Section 17 of the PSA. The ARB provides year-to-date tracking of budget amounts
billed, third party revenues collected, prior month's billing adjustments and various other
details. In the PSA, the ARB is referred to as the Billing Statement.
2. "A/S" means Ancillary Services as defined in the CAISO tariff, which include capacity reserve
services/products, e.g. Regulation -Up (RegU), Regulation-Down(RegD), Spin, Non -Spin or as
revised by the CAISO from time -to -time.
3. "Balancing Authority" or "BA" is the CAISO in these Agreement Schedules.
4. "DAM" means the Day Ahead Market as defined in the CAISO tariff.
5. "Fuel Management Contract" means the Project Gas Supplier and Management Agreement (see
Agreement Schedule 2.00).
6. "GasPricePG&E Citygate" means the cost for gas delivered at the PG&E Citygate.
7. "GenBenefit" means generation benefits to be determined by the PPC pursuant to Exhibit 4 of
Agreement Schedule 1.00, e.g., avoided transmission wheeling access charge for behind the
meter generation.
8. "GMC" means the Grid Management Charge as defined in the CAISO tariff.
9. "Heat Rate" or "Heat Rate Curve" is the measure of generating plant/project efficiency in
MMBtu per MWh (see Exhibit 1 of Agreement Schedule 1.00).
10. "IST" means an Inter -SC Trade, which is a commitment between two SCs as defined in the
CAISO tariff.
11. "LDC" means PG&E's Local Distribution Charges, as defined in the PG&E Gas Tariffs as a
volumetric charge for costs to transport gas from the PG&E Citygate to the Project meter in
dollars per MMBtu.
12. "LMPLEc" means the CAISO's Locational Marginal Price for Energy at the Point of Delivery
of the Lodi Energy Center in $/MWh.
Agreement Schedule 0.00
LEC Project Management and Operations Agreement
2
13. "Margin" ($/MWh) as used in the Economic Operation is to be determined by PPC pursuant to
Exhibit 3 of Agreement Schedule 1.00;
14. "MP" means market price from the applicable market.
15. "MSSA" means Metered Subsystem Aggregator for Metered Subsystem entities (MSS).
Certain NCPA Members are MSS as defined by the CAISO Tariff and the CAISO's MSS and
MSSA Agreements.
16. "Operation and Maintenance Expenses" has the meaning given it in the PSA, Section 4.68.
17. "Other Revenues" means revenue from Capacity (e.g., CAISO A/S) and other Attributes
provided by the Project.
18. "PG&E Citygate" means any point where the backbone natural gas pipeline system of PG&E
connects with its local distribution gas pipeline system.
19. "Project Capacity" is the total Project generating capability in MWs.
20. "Project Emergency Situation" means situations that require NCPA to take immediate action,
including the expenditure of funds to act appropriately under the situation to protect Project
personnel, environment, Project equipment including Shared Facilities, and safety and security
of the surrounding areas.
21. "Project Generation" is the total Energy produced by the Project as measured at the Point of
Delivery in MWhs.
22. "Project Node" means the Point of Delivery designated by the CAISO for determination of the
LMPLEC-
23. "Sc" means Scheduling Coordinator as defined by the CAISO tariff.
24. "SCID" means a name designated by the CAISO for a Scheduling Coordinator.
25. "Self -Scheduling" means being a price taker by submitting bids with no specification of prices
into the CAISO's markets for the products provided by the Project, and as more specifically
defined in the CAISO tariff.
26. "VOM" means variable operation and maintenance cost in $/MWh, including but not limited to
startup/shutdown costs ($/startup or $/shutdown), running costs, and overhaul costs ($/specified
number of hours of operation) (see Exhibit 2 of Agreement Schedule 1.00).
Agreement Schedule 0.00
LEC Project Management and Operations Agreement
3
Agreement Schedule 1.00
Scheduling and Dispatch Operations and Economic Criteria
General Oaerating; Protocol Guideline
NCPA shall be the SC for the Project and shall operate and schedule the Project in accordance with the
directives of the PPC as manifested in Article 5 and this Agreement Schedule 1.00. NCPA shall
comply with applicable regional and Balancing Authority tariffs, business practice manuals,
regulations, scheduling requirements and timelines as published or as changed from time to time.
NCPA Scheduling; and Bidding Principles
1. NCPA will schedule the Project output using scheduling option (a) or (b) as shown below. A
Participant may additionally elect option (c) up to its GES.
a. Awarded schedules resulting from bidding into the CAISO markets: Except as noted in
option (b), NCPA will submit Energy and A/S bids into the CAISO markets based on
Economic Operations. Economic Operations of the Project shall mean the following
over the CAISO scheduling period (currently 24 hours/day):
[LMPLEc + MP(s) for A/S + value of other Attributes] ? [Heat Rate x (GasPricepG&E citygate
+ LDC) + VOM + Margin — GenBenefit + CAISO GMC]
Participants will receive their GES of revenues based on (i) the LMPLEc for Energy and (ii)
the applicable MP(s) for A/S provided from Project Capacity. In addition, if there are
other applicable revenues from Attributes, Participants will receive their GES of these
revenues. Participants will also receive bid cost recovery revenues from the CAISO when
the sum of the product of Energy price bids and the awarded Energy scheduled, the startup
costs, and Project minimum operating level costs is greater than the sum of the LMPLEc
revenues for Energy from the Project over the CAISO scheduling period (currently 24
hours/day).
b. Self -Scheduling: If the CAISO markets do not function correctly, NCPA may elect to
Self -Schedule the Project Energy and Capacity and shall inform the Participants of such
action as soon as possible. Participants will receive their GES of revenues based on (i)
the LMPLEc for Energy, and (ii) the applicable MP(s) for A/S provided from Project
Capacity. In addition, if there are other applicable revenues from Attributes,
Participants will receive their GES of these revenues.
C. IST or unit contingent export: Each Participant has the right to request physical delivery
of part or all of its GES of Project Energy and/or Energy associated with its GES of
Capacity, in which case NCPA will schedule as follows:
Agreement Schedule 1.00
LEC Project Management and Operations Agreement
C!
i. For delivery inside of the CAISO Balancing Authority Area, NCPA will
schedule a physical IST(s) in the DAM or the hour -ahead market at the Project
Node.
ii. For delivery—outside of the CAISO Balancing Authority Area, NCPA will
schedule/coordinate a unit contingent export as described in the CAISO
Business Practice Manuals and in accordance with regional scheduling and
tagging practices.
Participants requesting physical delivery shall be responsible for all related CAISO and
NCPA costs, charges, and credits (e.g. due to scheduling, transmission,
scheduling/pricing differences, outage, etc.). Exhibit 5 of this Agreement Schedule
contains the details for CAISO costs, charges and credits.
2. NCPA will produce monthly reports summarizing the results of the previous months' bidding
results. This information will be reviewed by the PPC to provide changes or adjustments in the
bidding principles.
3. NCPA will schedule the Project using the NCPA SCID but outside of the NCPA MSSA
portfolio.
4. The SC options (i.e. NCPA SCID, unique SCID to the Project, included as a part the MSSA,
etc.) and calculations/parameters involved in making the economic determinations and
estimations are subject to review and revision by the PPC from time to time based on Project
operating experience, Project production costs, market conditions, and other factors affecting
the assessment of Project cost and the value of Project Energy, Capacity, and other Attributes.
SchedulinETimelines and Economic Criteria
The following provides a listing of the daily scheduling and dispatching activities, information
requirements, and timelines:
Day Ahead ("DA") Bilateral Market for the bilateral electricity and fuel markets (Activity time-
frame is normally 5:00 — 7:00 am the day before the trading day):
NCPA will forecast expected Economic Operations and fuel requirements to determine DA
Energy and A/S bids for the CAISO's markets. NCPA shall make such bids over the entire
scheduling period when the Project is available for operations.
Fuel requirements (MMBtu/day) — NCPA will manage the fuel supply with the objective of
minimizing fuel imbalances by considering forecasts and historical results of the DAM and
actual operations.
NCPA will allocate expected Project output and fuel requirements by Participants' GES by
6:30 am.
Agreement Schedule 1.00
LEC Project Management and Operations Agreement
5
Participant(s) may supply its own fuel requirements up to Participant's GES of the Project fuel
requirements at full Project output.
i) Participant(s) providing its own fuel supply will notify and schedule with NCPA by
6:30 AM. The information required from Participant(s) is as follows: Gas supplier
ID and the amount (MMBtu/day). Delivery shall beat PG&E Citygate.
(1) At or after 6:30 AM, NCPA will order remaining fuel supply and/or sell
excess fuel supply.
(2) The price at burner -tip is the sum of the day ahead PG&E City Gate Index
(or quote) and LDC, pursuant to the Fuel Management Contract per
Agreement Schedule 2.00.
ii) NCPA will notify the Project Gas Supplier and Manager of the Fuel Management
Contract (see Agreement Schedule 2.00) 1.5 hours prior to 9:30 AM and 2 hours
prior to 4:00 PM for the day ahead fuel nominations, and 2 hours prior to 8:00 AM
and 3:00 PM on the trading day for the day of fuel nominations. These nomination
revisions help mitigate fuel imbalances but do not establish the price for the
changes. In general, the price for differences or changes after the day ahead
bilateral fuel market, that closes at approximately 7 AM PPT, is established by
quote or the change is left as an imbalance to be priced at the next available day
ahead bilateral fuel market (at the PG&E Citygate).
CAISO DAM: NCPA schedules and bids the Project in the CAISO DAM. (Activity time frame is
10:00 AM —1:30 PM):
a. NCPA may Self -Schedule Project output (from the Project minimum operating level up to
entire Project Capacity) at the ProjectNode prior to 10:00 AM.
b. NCPA will bid the remaining Project output that is not Self -Scheduled into the DAM based
upon Energy and A/S bids determined using the forecasted Economic Operations at the
ProjectNode prior to 10:00 AM.
Energy and A/S bids are awarded by 1:30 PM, and NCPA subsequently shall notify the
Project Gas Supplier and Manager of fuel supply changes and revise initial fuel supply
requirements.
c. If a Participant is using an IST, such Participant must submit its request to NCPA and
schedule a DAM IST(s) at the Project Node prior to 8:30 AM. The CAISO will verify the
IST after 12:00 PM.
d. If a Participant is using a unit contingent export from the CAISO Balancing Authority Area,
such Participant must coordinate/schedule the unit contingent export with NCPA prior to
8:30 AM.
Agreement Schedule 1.00
LEC Project Management and Operations Agreement
e. Each Participant(s) is responsible for scheduling its load, export, or sales to a third party
including all costs and revenues associated with such schedules.
NCPA Dispatch Operations
a. Real -Time ("RT") CAISO market: This is the CAISO's Hour Ahead Scheduling Process
("HASP"), and it includes the following, which must be submitted 75 minutes prior to the
next trading hour: -
i) Supplemental Energy bids
ii) A/S bids
iii) Unit contingent exports and ISTs. (Any Participant changes to its DAM unit
contingent exports or ISTs must be provided to NCPA 135 minutes or 105
minutes prior to the next trading hour, respectively.)
b. NCPA dispatch operations include all 24x7 dispatch functions and tasks:
i) To match Project output with fuel nominations and to awarded schedules of
Energy and A/S;
To adjust for emergency operations; and
iii) To adjust and coordinate for reliability and safety requirements.
Settlements:
As the SC of the Project using NCPA's SCID, NCPA shall review, validate, and reconcile CAISO
invoices, and file timely disputes and appropriately pursue resolution of disputes with the CAISO.
Current CAISO charge types and, if applicable, the basis for allocation of CAISO charges and
payments to the Project are detailed in Exhibit 5 of this Agreement Schedule.
Agreement Schedule 1.00
LEC Project Management and Operations Agreement
7
EXHIBIT 1
Heat Rate
[To Be Determined During Testing Of The Project]
Exhibit 1 to Agreement Schedule 1.00
LEC Project Management and Operations Agreement
EXHIBIT 2
MCWV
[To Be Determined Prior to Commercial Operation Date]
Exhibit 2 to Agreement Schedule 1,00
LEC Project Management and Operations Agreement
EXiIIBIT 3
Margin
[To be determined by the PPC prior to Commercial Operation Date. If not determined by the
PPC prior to Commercial Operation Date, NCPA shall develop and use a Margin for this
Exhibit 3 until the PPC determines and approves the Margin.]
Exhibit 3 to Agreement Schedule 1.00
LEC Project Management and Operations Agreement
EXHIBIT 4
GenBenefit
[To Be Determined at a Later Date By The PPC As Appropriate]
Exhibit 4 to Agreement Schedule 1,00
LEC Project Management and Operations Agreement
EXHIBIT 5
CAISO Settlement Charge Matrix
The attached matrix details the option chosen by the Participants to utilize NCPA's current SCID.
Exhibit 5 to Agreement Schedule 1.00
LEC Project Management and Operations Agreement
Agreement Schedule 2.00
Fuel Supply Procurement, Delivery, and Management
NCPA is responsible for the fuel supply procurement, delivery, and management for the Project and
will develop and negotiate the Project Gas Supplier and Management Agreement ("Fuel Management
Contract"). NCPA will analyze the proposals from fuel suppliers for these services and recommend a
fuel supplier for the Fuel Management Contract to the PPC for its approval. This Fuel Management
Contract will govern, for example, the daily fuel scheduling (nominations), fuel purchasing/sales, fuel
balancing and fuel pricing. In addition, it will allow Participants and NCPA to arrange for the delivery
of third party fuel (fuel which is not purchased under the Fuel Management Contract) to the Project.
To provide alternate/additional fuel supply sources, NCPA may execute third party fuel supply
agreements in the future as approved by the PPC. Any additional charges resulting from Participant
supplied fuel will be fully charged to such Participant.
The PPC and NCPA will develop the protocols for this Agreement Schedule once the Fuel
Management Contract is executed.
Agreement Schedule 2.00
LEC Project Management and Operations Agreement
Agreement Schedule 3.00
Participant Requested Operations During Non -Economic Periods
[To Be Developed at a Later Date by the PPC]
Agreement Schedule 3.00
LEC Project Management and Operations Agreement
Agreement Schedule 4.00
Shared Facilities and Cost Sharing
Listing of Shared Facilities and Allocations to Projects
0.00%
15.13%
Cost Allocation to NCPA Project (%)
100.00%
Facility
CT1
CT2
LEC
Total
MW Capacity
124.9
49.9
280.0
454.8
Capacity CTI, CT2, LEC %
27.50%
11.00%
61.50%
100.00%
Capacity CT2, LEC %
0.00%
15.10%
84.90%
100.00%
Headcount for FTE -2012
3.0
4.5
17.5
25.0
Headcount % CT 1, CT2, LEC
12.00%
18.00%
70.00%
100%
Cooling Tower Usage CT2/LEC (based on
calculation below)
0%
1.30%
98.70%
100.00%
Vehicle Usage CT1/CT2/LEC (based on
estimated usage)
90.00%
5.00%
5.00%
100.00%
Anhydrous Ammonia System
Fixed O&M, Capital (based on Capacity
CT2, LEC %)
0.00%
15.13%
84.87%
100.00%
Variable O&M CT2/LEC (based on actual
Ammonia usage)
Usage
Usage
Administration/ Warehouse Building
O&M, Capital (based upon Headcount %
CT1, CT2, LEC)
12.00%
18.00%
70.00%
100.00%
Fire System
O&M, Capital (based on Capacity CT2,
LEC %)
0.00%
15.13%
84.87%
100.00%
230 KV Switchyard (Common Equip)
O&M, Capital (based on Capacity CT2,
LEC 'Yo)
0.00%
15.13%
84.87%
100.00%
Tooling and Special Equipment
(based on Headcount % CT 1, CT2, LEC)
12.00%
18.00%
70.00%
100%
Agreement Schedule 5.00
LEC Project Management and Operations Agreement
1
Cooling Tower/Closed Cooling Water/Injection Well
O&M, Capital (based on Cooling
Tower Usage CT2/LEC) 0.00%
Vehicle Usage
O&M, Capital (based on Vehicle
Usage CT1/CT2/LEC) 90.00%
Cooling Tower CT2/LEC Usage calculation:
Inputs
Sh = Number of Operating Hours of CT2
Lh =Number of Operating Hours of LEC
Systems
Constants
S f = Design flowrate for CT2 cooling water = 4,416 GPM
Lf = Design flowrate for LEC cooling water = 64,584 GPM
Formula
CT2 Percentage = S. _ (Sh * Sf) * 100
(Sh * S) + (Lh * Lf)
LEC Percentage = L% =100 - S%
Agreement Schedule 5.00
LEC Project Management and Operations Agreement
Pa
1.30%
5.00%
98.70%
5.00%
100.00%
100.00%
Agreement Schedule 5.00
Project Funds
Project Funds are classified as either "Mandatory Project Funds" or "Additional Project Funds," as
outlined in Article 12. A listing of the current funds established for the LEC Project is below:
Mandatory Project Funds Established and Approved by the Commission:
Revenue Fund: See PSA Section 21.1
Operating Fund: See PSA Section 21.2. A fund used to pay current Operation and Maintenance
Expenses.
Operatiniz Reserve Fund: Referenced in Section 21.3 of the PSA. The minimum balance, referred to
as the Operating Reserve Requirement in Section 4.67 of the PSA, in the Operating Reserve Fund shall
be equal to 60 days of Operation and Maintenance Expenses for the LEC Project. The minimum
balance may be increased by the PPC from time to time.
a) Such Operating Reserve Fund shall include amounts for:
Working capital required for operating purposes to fund expenditures made
prior to receipt of revenue collections.
2. Maintenance account for anticipated periodic operating costs including, but not
limited to, scheduled and unscheduled maintenance other than ordinary repairs
and replacements, e.g., overhaul, inspection, etc.
General Reserve Fund: See PSA Section 21.5.
Default Mitigation Sale Fund: See PSA Section 21.6.
Revolving Construction Fund: See PSA Section 21.7.2.
Construction Fund: See PSA Section 21.7.1. All Costs of Construction, as defined in Section 4.16 of
the PSA, shall be paid from this fund.
Debt Service Fund: This Debt Service Fund shall hold amounts collected to pay bond interest and
principal until they are due to the bond holders. Amounts are transferred to the trustee on a monthly
basis for this purpose and the trustee pays amounts due to bondholders from this Fund, generally on a
semi-annual basis.
Debt Service Reserve Fund: A reserve equal to one-half of the maximum annual debt service over the
life of the outstanding debt. This Debt Service Reserve Fund may be used to pay debt service in the
event that amounts in the Debt Service Fund are not sufficient.
Agreement Schedule 5.00
LEC Project Management and Operations Agreement
3
Costs of Issuance Fund: This fund is used to pay the costs of issuing bonds, including but not limited
to legal services, financing and consulting fees, underwriter's discount, fees for the verification agent,
trustee, escrow agent and rating agencies, printing costs and other miscellaneous expenses related to
financing,
Rebate Fund: This fund shall hold monies due to the United States government for arbitrage rebate
payments as required under the Bond Indenture, and by tax laws of the United States.
Additional Project Funds Established and Approved by the Commission:
Scheduling; Reserve Funds include the following two funds:
1. Reserves -for Estimated CAISO Scheduling Charges:
a) Initial Amount. NCPA shall invoice Participants in proportion to their GES and deposit in
the Scheduling Reserve Fund an amount equal to NCPA's estimate of the three highest
months of projected CAISO GMC and export related charges for the succeeding twelve
(12) months for the LEC Project.
b) Periodic Reviews. At least quarterly, NCPA shall review the balance in this account to
ensure the aggregate amount is equal to the current projection of the three highest months
of the Project's projected CAISO GMC and export related charges for the succeeding
twelve months. Any funds on deposit in the Scheduling Reserve Fund in excess of one
hundred ten per cent (110%) of this current projection shall be credited back to the Project
Participants on the ARB. If the funds on deposit in the Scheduling Reserve Fund are less
than ninety per cent (90%) of this current projection, NCPA shall prepare an invoice in
accordance with Article 9 which shall be due within 30 days of the invoice or include the
billing on the next ARB to bring the balance back to 100 per cent (100%) of this current
projection.
C) Emergency Additions. In the event that the funds in the Scheduling Reserve Fund are
insufficient to allow payment of a CAISO invoice, NCPA shall notify Participants and then
prepare and send a special or emergency invoice to the Participants in accordance with
Article 9. Such special or emergency invoice will be due as necessary to permit NCPA to
make timely payments to the CAISO. Participants acknowledge that under some
circumstances this may require same day payment of invoices.
2. Reserves for CAISO Security Deposits:
a) Prior to the date NCPA provides any SC services for the Project, NCPA shall invoice the
Participants for any security or other deposit required by the CAISO for the Project, and
such security deposit shall be maintained by NCPA as may be required by the CAISO
thereafter.
b) Any changes in security or other deposits required by the CAISO for the Project may be
provided by NCPA from the Scheduling Reserve Fund, and NCPA shall invoice the
Participants within three (3) working days of this payment to the CAISO in proportion to
participants' GES.
Agreement Schedule 5.00
LEC Project Management and Operations Agreement
M
C) NCPA shall allocate any security or deposit required by the CAISO for the Project to the
Participants in proportion to their GES.
Additional Project Funds Established and Approved by the PPC:
None at this time.
Additional Project Funds Established and Approved by both the PPC and the NCPA
Commission:
None at this time.
Agreement Schedule 5.00
LEC Project Management and Operations Agreement
Agreement Schedule 6.00
Contact List
PARTICIPANT ADDRESSES FOR NOTICE
Northern California Power Agency
Northern California Power Agency
Attn: Ed Warner, Lodi Energy Center Manager
651 Commerce Drive
Roseville, California, 95678
Telephone: (209) 728-1387 x-22 or (209) 768-5887
Facsimile:
Email: EdNarnerk cpa en.com
With a copy to
Northern California Power Agency
Attn: Ken Speer, Assistant General Manager -Generation Services
651 Commerce Drive
Roseville, California, 95678
Telephone:
Facsimile:
Email: Ken.Soeer(a ncya.com
City of Azusa
City of Azusa
Azusa Light & Water Department
Attn: George Morrow, Director of Utilities
729 N. Azusa Avenue
P.O. Box 9500
Azusa, California 91702-9500
Telephone: (626) 812-5214
Facsimile: (626) 334-3163
Email: smorrownci.azusa.ca.us
Bay Area Rapid Transit District
Bay Area Rapid Transit District
Attn: Frank Schultz, Power Resources Manager
300 Lakeside Drive, 16thFloor
Oakland, California 94612-3534
Telephone: (510) 464-6435
Facsimile: (510) 464-6118
Email: fschult&, bart.gov
Agreement Schedule 6.00
LEC Project Management and Operations Agreement
1
Modesto Irrigation District
Modesto Irrigation District
Attn: Gregory Salyer, P.E.,
Resource Planning and Development Manager
P.O. Box 4060
1231 Eleventh Street
Modesto, California 95352
Telephone: (209) 526-7550
Facsimile: (209) 526-7575
Email: grensk,mid.org
California Department of Water Resources:
Department of Water Resources
Attn: Chi Doan
Chief, Power Contracts Branch
3310 El Camino Avenue, LL94
Sacramento, California 95821
Telephone: (916) 574-0612
Facsimile: (916) 574-0660
Email: chig,water.ca.gov
Plumas-Sierra Rural Electric Cooperative
Plumas-Sierra REC
Attn: Bob Marshall, General Manager
73233 Highway 70
Portola, California 96122-7064
Telephone: (530) 832-4261
Facsimile: (530) 832-6070
Email: marshall&,psln.com
City of Biggs
City of Biggs
Attn: Pete Carr, City Administrator
465 "C" Street
P.O. Box 307
Biggs, California 95917-0307
Telephone: (530) 868-5493
Facsimile: (530) 868-5239
Email: biggs 1kbig s-ca.g_ov
Agreement Schedule 6.00
LEC Project Management and Operations Agreement
2
City of Gridley
City of Gridley
Attn: Rob Hickey, City Administrator
685 Kentucky Street
Gridley, California 95948-2117
Telephone: (530) 846-5695
Facsimile: (530) 846-3229
Email: rhickeyngridley.ca.us
City of Healdsburg
City of Healdsburg
Attn: Elizabeth Kirkley, Electric Utility Director
401 Grove Street
Healdsburg, California 95448
Telephone: (707) 431-3346
Facsimile: (707) 431-2710
Email: ekirkleyna,ci.healdsburp,.ca.us
City of Lodi
City of Lodi
Attn: Kenneth A. Weisel, Interim Electric Utility Director
1331 S. Ham Lane
Lodi, California 95242
Telephone: (209) 333-6762
Facsimile: (209) 333-6839
Email: kweisel ii>,lodielectric.com
City of Lompoc
City of Lompoc
Attn: Ronald Stassi, Utility Director
100 Civic Center Plaza
P.O. Box 8001
Lompoc, California 93438-8001
Telephone: (805) 875-8299
Facsimile: (805) 875-8399
Email: r stassina,ci.lompoc.ca.us
Agreement Schedule 6.00
LEC Project Management and Operations Agreement
City of Oakland- Port of Oakland
Port of Oakland
Attn: Wing Lau, Port Supervising Engineer
530 Water Street, PO Box 2064
Oakland, California 94607
Telephone: (510) 627-1457
Facsimile: (510) 763-1877
Email: wlau@portoakland.com
City of Santa Clara
Silicon Valley Power
Attn: John Roukema, Electric Utility Director
1500 Warburton Avenue
Santa Clara, California 95050
Telephone: (408) 261-5490
Facsimile: (408) 249-0217
Email: jroukema@siliconvalleypower.com
City of Ukiah
City of Ukiah
Attn: Mel Grandi, Utility Director
300 Seminary Avenue
Ukiah, California 95482
Telephone: (707) 463-6298
Facsimile: (707) 463-6740
Email: mgrandi(d,)cityofi&iah.com
Power and Water Resources Purchasing Authority
Power and Water Resources Purchasing Authority
Attn: Kent W. Palmerton, General Manager
2106 Homewood Way, Ste 100
Carmichael, California 95608
Telephone: (916) 483-5368
Facsimile: (916) 485-3537
Email: kent(a wkpalmerton.com
Agreement Schedule 6.00
LEC Project Management and Operations Agreement
0
Agreement Schedule 7.00
Differential Transmission Cost Adjustment
[To be finalized by the PPC prior to Commercial Operation Date]
Sample Differential Transmission Cost Adjustment using NM as the Exporting Participant:
The differential transmission cost adjustment is to be computed including cost and cost offset
information and calculations including, but not limited to, the following cost and cost offset categories:
1. CAISO Charges:
The CAISO has over 130 different charge codes associated with different types of transactions and
services. Certain charges represent pre -determined rates, while others are more market-based and are
subj ect to variation due to market or system conditions. Only a subset of the CAISO charges would
comprise part of the differential transmission cost adjustment. The costs included in this Agreement
Schedule shall be from the actual CAISO invoices received.
The CAISO posts online its currently applicable and historical GMC and transmission access charges
(TAC) at the following website locations:
— GMC: httb://www.caiso.com/does/2005/03/20/2005032013150120093html
— TAC: http://wwwl.caiso.com/docs/2002/02/05/2002020510502821880.html
2. WesternArea PowerAdministration Western) Charges and Other Western Factors:
Western's transmission service rate will be a deduction in the differential transmission cost adjustment
calculation. Western's transmission service charges are known and available in advance of the
settlement period and are currently displayed at the following website:
— http://www.wapa.gov/sn/marketing/rates/
Other Western factors that might be deductions in the differential transmission cost adjustment
calculation include adjustments/estimates for alternative interconnection related costs (the additional
cost and/or debt service burden, for example, had the LEC been interconnected to the Western
transmission system instead of the PG&E transmission system) of the LEC Project. In addition, the
cost and/or operational burden differentials associated with the provision of LEC related system
reserve arrangements shall be quantified and based upon such reasonably identifiable costs and
obligations given LEC interconnection to the CAISO system or the Western system and the resulting
net cost differential shall be used in computing the differential transmission cost adjustment.
3. Other BenefitFactors:
Agreement Schedule 7.00
LEC Project Management and Operations Agreement
I
The differential transmission cost adjustment is to reflect adjustments to account for other elements of
value which can be identified as a function of plant location in either the CAISO or Western Balancing
Authority Areas. Such factors include, but are not limited to, ancillary services revenues, markets and
prices, the ability to exchange capacity and/or energy between other entities within a particular control
area and thus avoid all or some differential transmission cost adjustment, the ability to share cost
savings resulting from "behind the meter" generation within the CAISO, and other differential costs
and/or benefits that may accrue to LEC Participants due to Project location in either the Western or
CAISO Balancing Authority Areas.
4. CumulativeBalancinzAccounts:
NCPA will track 2 cumulative balancing accounts for each Exporting Participant. The first is the
cumulative charges and benefits for an Exporting Participant.. . The second is the cumulative net
payments made by the Project to an Exporting Participant.
If at the end of the Fiscal Year, the cumulative charges are greater than the cumulative benefits for
an Exporting Participant, the Exporting Participant may be reimbursed the net amount by the Project
and all Project Participants will be billed based upon their GES. If at any time the cumulative
benefits are greater than the cumulative charges for an Exporting Participant, the Exporting
Participant shall reimburse the Project up to any differential transmission cost adjustments the
Exporting Participant previously received and all Project Participants will be reimbursed based upon
their GES and up to the amount of differential transmission cost adjustments each Participant has
paid. For each Exporting Participant, the PPC shall review the cumulative charges and benefits and
make determination of when payments shall be reimbursed to avoid large accumulation of
obligations.
Agreement Schedule 7.00
LEC Project Management and Operations Agreement
2
Sample Differential Transmission Cost Summary Table for MID
GMC (export and load ($2.15) ($452,896)
CAISO TAC HV, $/MWh ($5.26) ($1,105,862)
Other Applicable CAISO Ch s ($/MWh) $0
Total CASIO Charges ($/MWh) ($7.41) ($1,558,758)
Net Behind Meter/ Energy Swap Impacts '
NetA/S Obligations and Sales Value $857,143
Estimated Western A/S Sales Value
Other Applicable Adjustments $/MWh
Total Adiustments ($/MWh) $857,143
MID DiffererNal
PPC approved reimbursementto tM
PPCapproved reimbursement from MIDto
Beginning Cumulative (Charges -Benefits) `
D
Beg'inriing CumulafiveReirribursemeritto
MID 0
Ending Cumulative (charges -benefits) $0
Endive Cumulative Reimbursementto MID $57,240
Agreement Schedule 7.00
LEC Project Management and Operations Agreement
9
Cumulative
adjustments
Particulars Estimated
Cumulative
paid by the
Particulars Rate
Charges-
Projectto
Benefits
the
Account
Exporting
UaneM III T hai aes Balance
Participant
GMC (export and load ($2.15) ($452,896)
CAISO TAC HV, $/MWh ($5.26) ($1,105,862)
Other Applicable CAISO Ch s ($/MWh) $0
Total CASIO Charges ($/MWh) ($7.41) ($1,558,758)
Net Behind Meter/ Energy Swap Impacts '
NetA/S Obligations and Sales Value $857,143
Estimated Western A/S Sales Value
Other Applicable Adjustments $/MWh
Total Adiustments ($/MWh) $857,143
MID DiffererNal
PPC approved reimbursementto tM
PPCapproved reimbursement from MIDto
Beginning Cumulative (Charges -Benefits) `
D
Beg'inriing CumulafiveReirribursemeritto
MID 0
Ending Cumulative (charges -benefits) $0
Endive Cumulative Reimbursementto MID $57,240
Agreement Schedule 7.00
LEC Project Management and Operations Agreement
9
;. ,. __, r wtiAssurn togs/Modelle ,uts Y,
Notes
MID Exported energy out of CAISO
210240
1
Western reserve sharing re uirementfor capacity
20%
2
Reserve Pricing from CAI SO$/kw- r
$30.00
3
Additional Capital Costs of connecting to Western
$25,000,000
4
Net Behind the meter/ Energy Swaps
5
Net Ancillary Services Revenue from CAISO
$8,000,000
6
Estimated Ancillary Services Revenue from Western
7
CAISO GMC
8
CAISO TAC
9
Western Transmission Rate
10
Notes
1. The actual energy exported from CAISO to MID. Obtained from CAISO Invoices.
2. Western Reserve resource sharing requirement will be estimated by an independent consultant
to determine what the requirement would have been from Western if the plant was
interconnected to Western.
3. Reserve pricing will be determined using CAISO market for capacity.
4. Additional Capital Costs. PPC has approved the value of $xxxxx for this category. The
interest rate will be the weighted interest rate of Indenture Group A and B. This is the data
NCPA has available. Could be the weighted interest of Indenture Group A, B, C. PPC
decision.
S. Net Behind Meter/ Energy Swap Impacts is the benefit received by the project times MIDGES
for any revenues associated with a behind the meter generation as a result of City of Lodi
installing a new transmission line that avoids CAISO charges.
6. Net Ancillary Services Revenue from CAISO- Based upon actual invoice received from the
CAISO minus any costs or lost opportunity revenue as a result of A/S sales.
7. Estimated net ancillary services revenue from Western will be estimated by an independent
consultant to determine what the net A/S revenue sales would have been if this project was
interconnected to the Western Balancing Authority Area.
Agreement Schedule 7.00
LEC Project Management and Operations Agreement
4
8. CAISO GMC will be the actual invoices received from the CAISO. For this sheet we have
estimated the costs assuming that the entire MID share of Energy is exported and using the
current CAISO tariffs.
9. CAISO TAC will be the actual invoices received from the CAISO. For this sheet we have
estimated the costs assuming that MID share of Energy is exported and using the current
CAISO tariffs.
10. Western Transmission Rate will be the published and based upon the full MID GES of energy
from this project.
Estimated GMC Costs for MID Utilizing CAISO 2010 Rates (Monthly Figures)
Charge
Code
Description
Rate
MWh
Costs
4503
Core Reliability Services CRS Exports
$1.829
210,240
$384,529
4505
Energy Transmission Services (ETS) Net Energy
$0.314
210,240
$66,015
4511
Forward Scheduling
$2.532
572
$1,448
4535
Market Usage Instructed EneEgy
$0.230
2,040
$469
4537 1
Market Usage Forward Ener
1 $0.2251
1,930 J
$434
Y
g6
EWEMI
Table Notes:
(1) Estimate based on applicable components of the GMC from CAISO invoices to MID under
MRTU.
(2) Based on GMC rates effective as of April 1,20 10.
(3) MID's LEC monthly energy deliveries based on a 80 percent capacity factor and a 30 MW MID
Capacity share of a 280 MW LEC Project.
(4) The PPC may add, delete or revise applicable CAISO Charge Codes.
Agreement Schedule 7.00
LEC Project Management and Operations Agreement
4J
Agreement Schedule 8.00
Delegation of Authority
For NCPA to efficiently and economically operate the Project, the PPC has adopted the following
Delegation of Authority, as modified by the PPC from time to time:
1. Issuance of Purchase Orders: NCPA is authorized to issue Purchase Orders (POs) for goods
and services for the Project for an amount not to exceed $100,000 per PO, except under the
"Project Emergency Situation"sectionbelow.
2. Proiect Emergency Situation: Under a Project Emergency Situation, NCPA is authorized to
take immediate action, including the expenditure of funds to act appropriately under the
situation to protect Project personnel, environment, Project equipment including Shared
Facilities, and safety and security of the surrounding areas.
3. Contracts: NCPA is authorized to execute contracts and agreements for the Project for an
amount not to exceed $100,000 per contract or agreement.
4. Personnel: NCPA is authorized to handle all Project personnel issues in accordance with
Article 3. However, any increase in Project staffing level will be subject to PPC approval.
5. Project Outages: NCPA is authorized to schedule Project outages after consulting with PPC.
6. Forced Outages: NCPA is authorized to take immediate action when subjected to forced
outages, and NCPA will attempt to advise the PPC of any such action.
7. Permits: NCPA is authorized to request appropriate modifications to the Project's permits
necessary to comply with the then existing regulatory standards, report non -compliances with
appropriate clarifications/explanations, and pay fines for violation/non-compliance.
Agreement Schedule 8.00
LEC Project Management and Operations Agreement
1
Agreement Schedule 9.00
LEC Project Participants and their shares
Lodi Energy Center (GES)
Generation Entitlement Shares
Project Participant
Generation Entitlement
Share
2.7857%
Azusa
6.2500%
BART
0.2679%
Biggs
33.3332%
CDWR
1.9643%
Gridley
1.5714%
Healdsbur
9.3561%
Lodi
2.0000%
Lompoc
10.7143%
Modesto Irrigation District
0.7857%
Plumas-Sierra REC
1.1607%
Port of Oakland
2.6679%
PWRPA
25.3571%
Silicon Valley Power
1.7857%
Ukiah
Total
100.0000%
Agreement Schedule 9.00
LEC Project Management and Operations Agreement
1
Agreement Schedule 10.00
Billing and Payments
Billing and payment shall be made pursuant to Sections 17 and 18 of the PSA.
Agreement Schedule 10.00
LEC Project Management and Operations Agreement
APPENDIX A
GENERAL TERMS AND CONDITIONS
APPROVAL: This Agreement is of no force or effect until signed by both parties and approved
by the Department of General Services, if required. Contractor may not commence
performance until such approval has been obtained.
2. AMENDMENT: Included as Article 22.1 of this Agreement.
3. ASSIGNMENT: Supersededby Article 20 of this Agreement.
4. AUDIT: Contractor agrees that the awarding department, the Department of General Services,
the Bureau of State Audits, or their designated representative shall have the right to review and
to copy any records and supporting documentation pertaining to the performance of this
Agreement. Contractor agrees to maintain such records for possible audit for a minimum of
three (3) years after final payment, unless a longer period of records retention is stipulated.
Contractor agrees to allow the auditor(s) access to such records during normal business hours
and to allow interviews of any employees who might reasonably have information related to
such records. Further, Contractor agrees to include a similar right of the State to audit records
and interview staff in any subcontract related to performance of this Agreement. (Gov. Code
$8546.7, Pub. Contract Code $10115 et seq., CCR Title 2, Section 1896).
5. DISPUTES: Disputes are addressed in Article 21 of this Agreement.
6. TERMINATION FOR CAUSE: Supersededby Article 14.2 of this Agreement.
7. INDEPENDENT CONTRACTOR: Contractor, and the agents and employees of Contractor, in
the performance of this Agreement, shall act in an independent capacity and not as officers or
employees or agents of the State.
8. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, Contractor
and its subcontractors shall not unlawfully discriminate, harass, or allow harassment against
any employee or applicant for employment because of sex, race, color, ancestry, religious
creed, national origin, physical disability (including HIV and AIDS), mental disability, medical
condition (cancer), age (over 40), marital status, and denial of family care leave. Contractor
and subcontractors shall insure that the evaluation and treatment of their employees and
applicants for employment are free from such discrimination and harassment. Contractor and
subcontractors shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code § 12990 (a -f) et seq.) and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of
the Fair Employment and Housing Commission implementing Government Code Section
12990 (a-0, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of
Regulations, are incorporated into this Agreement by reference and made a part hereof as if set
forth in full. Contractor and its subcontractors shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or other
Agreement.
Appendix A
LEC Project Management and Operations Agreement
Contractor shall include the nondiscrimination and compliance provisions of this clause in all
subcontracts to perform work under the Agreement.
9. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES contained
in the document CCC 307 are hereby incorporated by reference and made a part of this
Agreement by this reference as if attached hereto.
10. TIMELINESS: Time is of the essence in this Agreement.
11. COMPENSATION: The consideration to be paid Contractor, as provided herein, shall be in
compensation for all of Contractor's expenses incurred in the performance hereof, including
travel, per diem, and taxes, unless otherwise expressly so provided.
12. GOVERNING LAW: Article 22.4 addresses governing law.
13. CHILD SUPPORT COMPLIANCE ACT: "For any Agreement in excess of $100,000, the
contractor acknowledges in accordance with Public Contract Code 7110, that:
(a) The contractor recognizes the importance of child and family support obligations and
shall fully comply with all applicable state and federal laws relating to child and family
support enforcement, including, but not limited to, disclosure of information and
compliance with earnings assignment orders, as provided in Chapter 8 (commencing
with section 5200) of Part 5 of Division 9 of the Family Code; and
(b) The contractor, to the best of its knowledge is fully complying with the earnings
assignment orders of all employees and is providing the names of all new employees to
the New Hire Registry maintained by the California Employment Development
Department."
14. UNENFORCEABLE PROVISION: Article 22.3 addresses this topic.
Appendix A
LEC Project Management and Operations Agreement
`A
CERTIFICATION CLAUSES
THIS APPENDIX A CONTAINS THE STATE OF CALIFORNIA CCC 307. CCC 307 CONTAINS
SEVEN (7) PROVISIONS PERTAINING TO CONTRACTOR CERTIFICATION CLAUSES AND
EIGHT (8) PROVISIONS PERTAINING TO DOING BUSINESS WITH THE STATE OF
CALIFORNIA, ALL OF WHICH ARE INCLUDED FOR REFERENCE. CCC 307 APPLIES TO
THIS AGREEMENT ONLY WITH RESPECT TO NCPA AND CDWR AND AS ACCEPTED,
MODIFIED OR DESCRIBED BY PROVISION BELOW.
CONTRACTOR CERTIFICATION CLAUSES
STATEMENT OF COMPLIANCE —NOT APPLICABLE, NCPA IS A PUBLIC ENTITY.
2. DRUG-FREE WORKPLACE REQUIREMENTS —ACCEPTED.
3. NATIONAL LABOR RELATIONS BOARD CERTIFICATION — NOT APPLICABLE,
NCPA IS A PUBLIC ENTITY.
4. CONTRACT FOR LEGAL SERVICES $50,000 OR MORE- PRO BONO REQUIREMENT —
NOT APPLICABLE; NCPA IS NOT PERFORMING LEGAL SERVICES FOR CDWR.
5. EXPATRIATE CORPORATIONS — ACCEPTED.
6. SWEATFREE CODE OF CONDUCT — NOT APPLICABLE, NCPA IS NOT FURNISHING
ANY APPAREL, GARMENTS OR CORRESPONDING ACCESSORIES TO CDWR.
7. DOMESTIC PARTNERS - NOT APPLICABLE / WAIVED PER PUBLIC CONTRACT
CODE SECTION 10295.3 (C)(4).
ccc-307
Appendix A
LEC Project Management and Operations Agreement
3
CERTIFICATION
I, the official named below, CERTIFY UNDER PENALTY OF PERJURY that I am duly authorized
to legally bind the prospective Contractor to the clause(s) listed below. This certification is
made under the laws of the State of California.
Contractor/Bidder Firm Name (Printed) I Federal ID Number
CONTRACTOR CERTIFICATION CLAUSES
DRUG-FREE WORKPLACE REQUIREMENTS: Contractor will comply with the
requirements of the Drug -Free Workplace Act of 1990 and will provide a drug-free workplace
by taking the following actions:
a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation,
possession or use of a controlled substance is prohibited and specifying actions to be taken
against employees for violations.
b. Establish a Drug -Free Awareness Program to inform employees about:
1) the dangers of drug abuse in the workplace;
2) the person's or organization's policy of maintaining a drug-free workplace;
3) any available counseling, rehabilitation and employee assistance programs; and,
4) penalties that may be imposed upon employees for drug abuse violations.
C. Every employee who works on the proposed Agreement will:
I ) receive a copy of the company's drug-free workplace policy statement; and,
Appendix A
LEC Project Management and Operations Agreement
it
2) agree to abide by the terms of the company's statement as a condition of employment
on the Agreement.
Failure to comply with these requirements may result in suspension of payments under the Agreement
or termination of the Agreement or both and Contractor may be ineligible for award of any future State
agreements if the department determines that any of the following has occurred: the Contractor has
made false certification, or violated the certificationby failing to carry out the requirements as noted
above. (Gov. Code $8350 et seq.)
2. EXPATRIATE CORPORATIONS: Contractor hereby declares that it is not an expatriate
corporation or subsidiary of an expatriate corporation within the meaning of Public Contract
Code Section 10286 and 10286. 1, and is eligible to contract with the State of California.
3. DOMESTIC PARTNERS: For contracts over $100,000 executed or amended after January 1,
2007, the contractor certifies that contractor is in compliance with Public Contract Code section
10295.3.
DOING BUSINESS WITH THE STATE OF CALIFORNIA
1) CONFLICT OF INTEREST —ACCEPTED.
2) LABOR CODE/WORKERS' COMPENSATION — ACCEPTED.
3) AMERICANS WITH DISABILITIES ACT - ACCEPTED.
4) CONTRACTOR NAME CHANGE — ACCEPTED.
5) CORPORATE QUALIFICATIONS TO DO BUSINESS IN CALIFORNIA —NOT
APPLICABLE, NCPA IS NOT A CORPORATION.
6) RESOLUTION —ACCEPTED.
7) AIR OR WATER POLLUTION VIOLATION — ACCEPTED.
8) PAYEE DATA RECORD FORM STD. 204 —NOT APPLICABLE, NCPA IS A
GOVERNMENTAL ENTITY.
DOING BUSINESS WITH THE STATE OF CALIFORNIA
The following laws apply to persons or entities doing business with the State of California.
1. CONFLICT OF INTEREST: Contractor needs to be aware of the following provisions
regarding current or former state employees. If Contractor has any questions on the status of
any person rendering services or involved with the Agreement, the awarding agency must be
contacted immediately for clarification.
Current State Employees (Pub. Contract Code § 10410):
Appendix A
LEC Project Management and Operations Agreement
5
1) No officer or employee shall engage in any employment, activity or enterprise from which the
officer or employee receives compensation or has a financial interest and which is sponsored or
funded by any state agency, unless the employment, activity or enterprise is required as a
condition of regular state employment.
2). No officer or employee shall contract on his or her own behalf as an independent contractor
with any state agency to provide goods or services.
Former State Employees (Pub. Contract Code $10411):
1), For the two-year period from the date he or she left state employment, no former state officer or
employee may enter into a contract in which he or she engaged in any of the negotiations,
transactions, planning, arrangements or any part of the decision-making process relevant to the
contract while employed in any capacity by any state agency.
2). For the twelve-month period from the date he or she left state employment, no former state
officer or employee may enter into a contract with any state agency if he or she was employed
by that state agency in a policy-making position in the same general subject area as the
proposed contract within the 12-monthperiod prior to his or her leaving state service.
If Contractor violates any provisions of above paragraphs, such action by Contractor shall render this
Agreement void. (Pub. Contract Code § 10420)
Members of boards and commissions are exempt from this section if they do not receive payment other
than payment of each meeting of the board or commission, payment for preparatory time and payment
for per diem. (Pub. Contract Code $10430 (e))
2. LABOR CODE/WORKERS' COMPENSATION: Contractor needs to be aware of the
provisions which require every employer to be insured against liability for Worker's
Compensation or to undertake self-insurance in accordance with the provisions, and Contractor
affirms to comply with such provisions before commencing the performance of the work of this
Agreement. (Labor Code Section 3700)
3. AMERICANS WITH DISABILITIES ACT: Contractor assures the State that it complies with
the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the
basis of disability, as well as all applicable regulations and guidelines issued pursuant to the
ADA. (42 U.S.C. 12101 et seq.)
4. CONTRACTOR NAME CHANGE: An amendment is required to change the Contractor's
name as listed on this Agreement. Upon receipt of legal documentation of the name change the
State will process the amendment. Payment of invoices presented with a new name cannot be
paid prior to approval of said amendment.
6. RESOLUTION: A county, city, district, or other local public body must provide the State with
a copy of a resolution, order, motion, or ordinance of the local governing body which by law
has authority to enter into an agreement, authorizing execution of the agreement.
Appendix A
LEC Project Management and Operations Agreement
on
7. AIR OR WATER POLLUTION VIOLATION: Under the State laws, the Contractor shall not
be: (1) in violation of any order or resolution not subject to review promulgated by the State
Air Resources Board or an air pollution control district; (2) subject to cease and desist order not
subject to review issued pursuant to Section 13301 of the Water Code for violation of waste
discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of
provisions of federal law relating to air or water pollution.
1403257.3
Appendix A
LEC Project Management and Operations Agreement
7
AGREEMENT TO SUPPLY RECYCLEDWATER
This Agreement To Supply RecycledWater ("Agreement")s made on
(the "Effective Date")between Northern California PowerAgency ("NCPA),a joint
powers agency, and the City of Lodi ("Lodi")@ municipal corporation, (Lodi and NCPA
are herein referredto singularly as "Party"and collectively as "Parties")in order to
provide recycledwater from the Lodi Waste Water Treatment Plantto NCPA for use in
conjunctionwith its powergenerating facilities, includingwithout limitation, NCPAs Lodi
Energy Center, a combustionturbine power plant(" L E C or "Project").
RECITALS
A. The Parties concur with California Water Codesections 13510-13512, that
prudentwater management in California requires effectivewater conservation and
reuseto meet diverse water needs;
B. The Parties believethat it is sound public policyto develop RecycledWater
resourcesthrough economically, financially, and environmentally sound projects;
C. The Parties believethat the usecf existing facilities benefitsthe ratepayersand
constituentsof both Parties byenablingthe productiveuseof existing facilities;
D. The Parties declare their intentto establish and maintaina business relationship
that utilizesthe reliablesupplyof RecycledWater from the LodiWhite Slough Water
Pollution Control Facility ("WSWPC F)for the CT2 power plantand LEC Project;
E. The Parties are authorized to enter into this Agreement pursuantto the following
laws, regulationsand orders:
NCPAs enabling Iegislation,Amended and RestatedJoint Powers
AgreAnt dated January 1,2008, which permits NCPAto construct, operate, and
maintainfacilities for the generationand transmissionof electric power;
California Code of Regulations,Title22, Division4, Chapter3,which
provid4i9standards for RecycledWater quality; and
The State Water Resources Control Board ('SWRCB") RecycledWater
Policy
f] The
the associated implementingresolution (State Water Board Resolution No
2009-0011), and additional pertinent orders as the SWRCB or the RegionalWater
Quality Control Board("RWQCB"ynay from time to time propound.
F. NCPAdesiresto use treated wastewater efFluentfromthe LodiWSWPCF for
cooling tower make-upwater and/orfor other uses as appropriate at the LEC.
NOW, THEREFORE, for good and valuable consideration,the amount and sufficiency
of which are hereby acknowledged,the Parties agree as follows:
1 _ GENERAL E INT
The purpose of this Agreement is to providethe terms and conditions under
which Lodiwill provide Recycled Water to NCPA. Forthe purposesof thisAgreement,
the following will apply:
1.1 Subsequent agreements between the Parties regarding specific Recycled
Water projectswill be implemented in accordancewith this Agreement;
1.2 Lodi provides RecycledWater to one (or more) energy projects owned
and operated by NCPA includingfhe Combustion Turbine 2 Project. It is anticipated
and planned that Lodiwill provide RecycledWater for the LEC;
13 The Parties recognizethat it may beappropriateto negotiate additional
agreements relatingto specific RecycledWater projects pursuantto the conditions
imposed in this Agreement;
1.4 The Parties recognizethat it may be appropriateto consider modifyingthis
Agreement in a mutually acceptable mannerto maintaina fair and positive business
relationship, particularlywhen legal, statutory, or regulatory changes materiallyaffect
the abilityto produce or purvey RecycledWater.
2. DEFINITIONS
When used inthis Agreement, the terms described belowwill havethe meanings
as set forth in this section:
2.1 "CombustionTurbine 2 Project"("CT2") is a LM5000 simple cycle
electrical generatingfacility rated at a nominal generating capacity of 49.9 megawatts
(MW). The CT2 is located in Lodi, Californiaon propertynear the City of Lodi
WSWPCF.
2.2 "Existing RecycledWater Facilities"means those Lodi RecycledWater
production and delivery facilities on the Lodi WSWPCF site orwithin Lodi easements
outside the WSWPCF site as of the Effective Date of this Agreement includingwithout
limitation,the filter plant,the filter plant pumps and appurtenances, conveyancefacilities
to and from the clearwell,the clearwell, the meter, the clearwell pumping station
including effluent and backwash pumps,the 8 -inch industrial RecycledWater pipeline
from the clearwell to the terminating point at the NCPA CT2facility, and those Lodi
RecycledWater production, delivery and distributionfacilities as of the Effective Date of
the Agreement including,without limitation, RecycledWater storage tanks; generally
shown on Exhibit B (Map).
2.3 The "Lodi Energy Center" ("LEC") will bea natural gas-fired, combined-
cycle electrical generatingfacility rated at a nominal generating capacity of 280
megawatts(MW). The LEC is proposed to be constructed on a parcel of approximately
4.4 acres located adjacent to the Lodi WSWPCF to the east, treatment and holding
ponds associatedwith the WSWPCF to the north,the existing CT2 (STIG plant) to the
west, and the San Joaquin County Mosquito and Vector Control Facilityto the south.
2.4 "LodiTreatment PlantSite" means that areawithin the current treatment
plant property boundariesas shown on Amended ExhibitA.
2.5 "NPDESpermit" meansthe National Pollutant Discharge Elimination
System permit issued by the RWQCBto each Party respectively as the context
requires.
2.6 "RecycledWater" or "ReciaimedWater" meanswater that resultsfrom
the treatment of wastewater, meets all applicable requirements establishedfrom time to
time by pertinentfederal or state agencies havingjurisdiction and regulatingthe use of
RecycledWater (includingthe RWQCB) and that is suitablefor appropriateand
approved non-potable uses, includingwithout limitationthe requirementsof California
Code of Regulations, Title 22, Division 4, Chapter 3 specificallyfor use in a cooling
tower. Forthe purpose of this Agreement, RecycledWater and Reclaimed Water are
considered synonymous.
2.7 "RecycledWater Facilities" includes both existing RecycledWater
Facilitiesand facilities proposedto be constructed by Lodi or NCPAfor the purpose of
producing, delivering, and/or distributing RecycledWater.
3. TERM
This Agreement shall become effective on the Effective Date stated above and
remain in placefor the term of the Amended and Restated Ground Lease between the
Lodi and NCPA dated of same date and any extensionsthereof.
4. PASTCOSTS
4.1 Lodiwill not seek any compensationfrom NCPA for Lodi's past costs
associatedwith the providing RecycledWater to the CT2 plant, or to other Existing
RecycledWater Facilitiesconstructed, or studies undertaken and completed, priorto
the Effective Date of this Agreement.
4.2 Similarly, NCPAwill not seek compensation from Lodifor the costs
associatedwith the existing NCPA RecycledWater Facilitiesconstructed or studies
undertaken and completed priorto the Effective Date of this Agreement.
4.3 Each Party may recover capital funds invested in RecycledWater
Facilitiessince , throughthe sale of RecycledWater subsequentto the
Effective Date of this Agreement.
5. Intentionally Left Blank
6. DEVELOPMENT OF FUTURE PROJECTS BY LODI
Future recycledwater projects may be developed by Lodi. However, Lodi's
development of future projects may not affect N C PAs rightto RecycledWater under
this Agreement and may not diminish the quality, quantity, price, availability and delivery
of RecycledWater. Lodiwill inform NCPA of planning activities regardingfuture
recycledwater projects. Joint planning efforts maybe undertaken by the Parties
through mutual agreement.
7. AGREEMENT TO USE RECYCLEDWATER
NCPA hereby agrees to use RecycledWater for the LEC and CT2 Projects.
NCPA agrees to usethe RecycledWater for the purposes of generating electricity or for
the use of irrigating landscapingthat is associatedwith its generating facilities. Lodiwill
supply RecycleWater to the standards contained in California Code of Regulations,
Title 22, for the specific use in power plants cooling towers.
8. RESPONSIBILITYAT DELIVERY POINT
The delivery point of the RecycledWater will bethe WSWPCF Clearwell
Pumping Station. Lodiwill be responsiblefor all facilities for the treatment,
transportation, conveyanceand storage of the RecycledWater up to the delivery point.
NCPAwill be responsiblefor facilities for the treatment, transportation, storage or use of
the RecycledWater from the point of delivery.
9. PRICEAND QUANTITYOF RECYCLEDWATER FORTHE LEC
Commencing uponthe operation of the LEC, or on another mutually agreed upon
date, Lodi agrees to provide ReclaimedWaterto the LEC in accordancewith California
Code of Regulations Title 22, Division 4, Chapter 3 and the following terms:
9.1 Lodiwill supply NCPA 1600acre feet peryear ("afy") of RecycledWater,
which will be consideredthe "BaseWater Allocation."
9.2 NCPA will payfor the BaseWater Allocation regardlessof whether it uses
the full allotment.
9.3 The initial pricefor the BaseWater Allocationwill be $600 per afy ("Price
for Water").
9.4 NCPA may increase its RecycledWater usagefrom 1600 afy to 1800. In
the event NCPA increases its RecycledWater usage above 1600afy, it will pay one
h u nd red twenty-five percent (125%) the Pricefor Waterfor any RecycledWater above
1600 afy.
9.5 NCPAwill payfor RecycledWater usageabove 1800afy at one hundred -
fifty percent (150%) the Pricefor Water.
9.6 The Pricefor Water will increaseat a rate of two and one-half percent
(2.5%) peryear on the anniversaryof the datethat water isfirst suppliedto the LEC
underthis Agreement.
9.7 On the ten (10) year anniversary date of the Effective Date of this
Agreement, either Lodi or NCPA may initiate a review of the then existing Pricefor
Water based on then existing market circumstancesfor ReclaimedWater used in an
i nd ustrial capacity such as a powerplant. Such reviewwill be conducted by a mutually
acceptable objectivethird party. Any supported adjustmentto the then existing Pricefor
Water shall not exceed more than or less than twenty-five percent (+/- 25%) of the then
existing Pricefor Water.
9.8 NCPA will make a one-time payment of Three HundredThousand Dollars
($300,000 US) within thirty (30) days afterthe NCPA secures financing forthe LEC.
10, OBLIGATION TO SUPPLY WATER
Lodiwill deliver RecycledWater twenty-four(24) hours per day. Lodiwill supply
the RecycledWater year round and will not ration RecycledWater to NCPA inthe event
of a drought. The amount of RecycledWater received by NCPA shall be confirmed by
monthly meter readings performed by NCPA. If Lodi fails to supply the minimum
amount in a calendar year then NCPA may take reasonablesteps to procureWater
from other vendors or su p pl ierswithout affecti ng its rights underthis Agreement.
11. INTERRUPTION OF DELIVERY
The Parties acknowledgethat it is impossibletoanticipate alI the events that may
occurwhich would prevent Lodifrom delivering RecycledWater to NCPA pursuantto
the Agreement. It is the intention of the Partiesthat Lodi maybe relieved of the
responsibilityfor providing RecycledWater when it is not reasonablywithin its meansto
do so. Such events shall include but are not limitedto:
11.1 Acts of God (earthquakes, floods, etc.),
11.2. Orders by regulatory bodies or a court of competentjurisdiction. (changes
inwater use requirements), or
11.3 Equipmentfailureand unanticipatedtreatment upsets,
12. WATER QUALITY REPRESENTATION
Notwithstandingthe prior statements above regardingwater quality, this
Agreement does not guaranteewater quality at any given time. A violation of Lodi's
NPDES permitthat effects its ability to deliverTitle 22 water qualityfor use at the NCPA
Power Plants is notto be constructed as a breach of this Agreement. Lodi shall notify
the on duty NCPA operator as soon as practical after it experiences such an
occurrence.
13. RESPONSIBILITY FOR COMPLIANCEWITH LAW
A. Lodi represents and warrants that is has complied with all laws related to
its ability to sell recycled water and has enacted any and all appropriate resolutions or
ordinances requiredto sell or provide recycledwater to NCPA.
B. Each Partywill be responsiblefor its own acts and omissions and for
compliancewith all applicable lawswith respectto its respective undertakings underthis
Agreement, includingwithout limitationall waste discharge requirementsand warnings
required bythe RWQCBor otherwise in con nectionwith RecycledWater. Should one
Party learn or have reason to believethat a violation of such laws, statutes, ordinances,
orders and/or regulationsby itself or the other Party has occurred or is threatened, that
Party must promptly so inform the other Party.
14. EFFECT OF AGREEMENT
14.1 This Agreement supersedes all prior oral or written representations,
statements, promises, premises, negotiations,or agreements for RecycledWater only
betweenthe Parties. This Agreement does not affect other contracts, written
representation,statementsor promises between NCPA and Lodi. This Agreement may
be modifiedor amended only bywritten agreement of the two Parties.
14.2 This Agreement is the product of negotiations between the Partieswith
regard to which the Parties have had ample opportunity to consultwith their respective
attorneys, and each Partytherefore agreesthat the rule of constructionthat documents
are construed againstthe drafterthereof shall have no applicationto this Agreement.
This Agreement is entered into underand shall be governed by and interpreted under
California law. Captions and headings in this Agreement are solelyfor convenience in
locating provisions, and they are notto be construed as limiting, expanding, or
otherwise affecting the provisionsof this Agreement.
15. SUCCESSORS AND ASSIGNS
Neither Party may assign or delegate any right or obligation hereunderwithout
first having receivedthe written consent duly executed of the other Party. The
Agreement shall bind and shall inureto the benefit of any successors or assign of either
Partyfollowing such consent but does not otherwise create duties or obligationsto or
rights in third parties not parties to this Agreement, nor will this Agreement affect the
legal liability c( either Party by imposing any standard of care different from that
otherwise imposed by law.
16. NOTICES
All notices or communications of any kind which either Party may desire or be
required to give or serve upon the other Party under this Agreement, must be in writing
and either (i) delivered personally, or (ii) sent by facsimiletransmi s s ion to the telephone
numbers set forth below with the original deposited in the U.S. mail, postage prepaid,
first class, addressed as set forth below, or (iii) sent by Certified Mail, return receipt
requested, postage pre -paid, first class, addressed as set forth below. Such notices will
be deemed effective upon personal delivery ortransmission by facsimile; a notice sent
only by Certified Mai will be deemed effective upon date received as set forth in the
respective receipts. Each Party may designate at any time a different address,
facsimile number, or telephone number for receipt of communications.
City of Lodi
Attn: City Manager
221 West Pine Street
Lodi, CA 95240
Fax: (209)333-6807
With a copy to:
City of Lodi
Attn: City Attorney
221 West Pine Street
Lodi, CA 95240
Fax: (209)333-6807
17. INDEMNIFICATION
Northern California PowerAgency
Attn: General Manager
651 Commerce Drive
Roseville, CA 95678
Fax: (916)783-7693
Northern California PowerAgency
Attn: General Counsel
Meyers Nave
555 Capitol Mall, Suite 1200
Sacramento, CA 95814
Fax: 916-556-1516
17.1 NCPA agrees to indemnify and defend Lodi and its officers, directors and
employees from any loss, cost, expense, liability, claim or demand, including
reasonable attorneys' fees, asto property damage and bodily and personal injury,
including death, arising out of the solenegligence orwillful misconduct cf NCPA or its
officers, directors, employees, or agents in connection with this Agreement or arising
out of NCPAs breach of this Agreement.
17.2 Lodi agrees to indemnify and defend NCPA, its officers, directors and
employees from any loss, cost, expense, liability, claim or demand, including
reasonable attorneys' fees, as to property damage and bodily and personal injury,
including death, arising out of the sole negligence or willful misconduct of Lodi or its
officers, directors, employees, or agents in connectionwith this Agreement or arising
out of Lodi's breach of this Agreement.
17.3 Ifthe negligenceor willful misconductof both NCPAand Lodiortheir
respective officers, directors, employees, or agents is a cause of such damage or injury,
the loss, cost, expense, claim, demand or liabilityshall be shared between NCPA and
Lodi in proportionto their relative degree of negligence,willful misconduct, or
comparative faults, and the obligationto defend shall applyfor such proportion. Forthe
purpose of this section, the term "fault" shall include breach of this Agreement.
18. INSURANCE
Each Party must procure and maintain, at its own expense, casualty insurance
insuringthe RecycledWater Facilitiesagainst loss or damage by fire and all other risks
covered bythe standard extended coverage endorsement then in use inthe Statefire
insurance coverage, in an amount sufficientto coverthe full replacementvalue of the
RecycledWater Facilities. NCPAand Lodi shall procureand maintain, each at its own
expense, liability coverage at least as broad as the most current ISO Commercial
General Liability policyform, with minimum limits of five million dollars ($5,000,000) per
occurrence and the following requirements:
18.1 Each Party must name the other Party and its officers, directors,
board/council members, employees, agents, representatives,and volunteers as
additional insureds.
18.2 NCPAs insuranceshall be primarywith respectto NCPAfacilities and
equipment, except that Lodi's insuranceshall be primaryfor any covered event arising
from Lodi's use of the facilities. Lodi's insurance shall be primarywith respectto Lodi's
facilities and equipment, exceptthat NCPAs insuranceshall be primaryfor any covered
event arisingfrom NCPAs use of the facilities. The Parties' respective policies must
providefor cross-liabiIitycoverage for NCPAand Lodi and for severability of interests.
18.3 All or any portion of the required insurance coverage may be met by self-
insuranceor by policiesthat include self-insured retentionsor deductibles largerthan
those typically carried by similarly situated non-self-insuredentities. Within sixty (60)
days of the Effective Dateeach Partyshall advisethe other Party of its self-insurance
program, self-insured retentions, or deductibles. If Party elects to self -insure, it must
providethe other Partywith the same benefitsand protectionsas if the self-insured
Party carried insurancewith a private insurance company satisfying the requirementsof
this Agreement.
18.4 The foregoing requirements are not intendedto and may not in any
manner limit or qualify the liabilities and obligationsotherwise assumed by NCPAorthe
Lodi pursuantto this Agreement, including but not limitedto, the provisions inthis
Agreement concerning indemnification.
19. DISPUTE RESOLUTION
19.1 Mediation. The Parties agree to first submit any dispute arising out of or in
connectionwith this Agreement to a mutually acceptable professional mediator and to
negotiatein goodfaith toward reaching an agreementwith respectto the dispute. In
such event, neither Party may proceedwith arbitration until the completion of mediation,
the mediation being an express condition precedentto further remedies. The Parties
may, however, agree inwriting to proceed directlyto arbitration. Each Partywill pay an
equal share of the costs of retainingthe professional mediator butwil I bear its own
costs, including, but not limitedto its own attorneys'fees associatedwith participating in
any mediation.
19.2 Binding arbitration. Shouldthe Parties be unable or unwillingto resolve
their dispute through the mediation process provided in Section 19.1 above, either Party
maygivewritten noticeto the other Partyand electto havethe matter resolved byfinal
and binding arbitration in accordancewith the rules and proceduresof the arbitrator
selected in accordancewith this Section 19.2. The Party seeking arbitration shall set
forth in its noticethe particularsof its claims and shall statewith specificity the issue(s)
to be submitted to arbitration and the relief sought. Within thirty (30) days of the date of
the election to arbitrate, the partiesshall select a single, mutually agreeable arbitrator.
If the Partiesare unable to agree, they shall requestthat the Judicial Arbitration and
Mediation Service, Inc. ("JAMS)if such entity is then in existence, appoint an arbitrator
in accordancewith then current procedures. The arbitrator must be a retiredjudge of
the Superior Court of California or the Court of Appeal of California, or a retiredjudge of
the United States District Court sitting in California. If JAMS is not in existence, the
PresidingJudge of the San Joaquin Superior Courtwill appoint an arbitrator in
accordancewith itsthen current procedures.
19.2.2 The rules and proceduresfor arbitration shall be as follows:
19.2.2.1 The arbitrator must be selected and arbitration must be
conducted within a reasonabletime, but in no event laterthan ninety (90) days after the
date uponwhich the demandfor arbitration isfiled.
19.2.2.2 The arbitration proceedings must be conducted in San
Joaquin County, California, at a time and location as agreed to in writing by the Parties,
or in absenceof an agreement, as designated bythe arbitrator.
19.2.2.3 Subjectto the same rules pertainingto privileged
communicationsand attorney work product that would apply ifthe proceeding was filed
in the courts of the State of California, the arbitratorshall havethe authority to make all
decisions regardingthe relevance, materiality, and admissibilityof all evidence offered
at the arbitration. The California Evidence Code shall generally guide the arbitrator in
making such decisions.
19.2.2.4 The arbitrator may issue any remedy or relief, whether
provisionalor permanent, including but not limitedto a defaultjudgment, which the
Parties could have obtained underthe law applicable in courts of the State of California
under the same factual circumstances, and the arbitrator mustfollow and otherwise
employ the standardsfor issuing such relief as defined by California law; provided,
however, that the arbitratorwill have no authority orjurisdiction to enter an award, order,
or decision for consequential, special, exemplary or punitive damages. The arbitrator
may also grant such ancillary relief as is necessaryto make effectivethe award, order,
or decision, includingthe issuance of declaratory relief, compelling specific
performance, or any other relief or action permitted by California law.
19.2.2.5 Both Parties may conduct discovery as if the matter were
pending before Superior Court of the State of Californiaand the arbitratorwill have the
full power of the State of Californiato issue and enforce subpoenas and to award
sanctions. Either Partywill have the rightto demand in writing that the other Party
provide a list of witnesses it intendsto call at the hearing, designating which witnesses
will be called as expert witnesses, and a list of documents it intendsto introduceat
hearing. The responding Party'slist(s) must be served personally or by registered or
certified mail on the requesting Party,with a copy to the Arbitrator, at least thirty (30)
days beforethe hearing.
19.2.2.6 Each Party may be represented by counsel.
19.2.2.7 No later than sixty (60) days following closing of the
arbitration hearing,the arbitratorwill make an award, order, or decision and issue a
written opinion consisting of findings of fact and conclusions of law and setting forth the
bases of the award,'order, or decision. The arbitratormay include in his or heraward,
order, or decision pre -award interestand post -award interestat the legal ratewhere
authorized by law. The Party againstwhom the award, order, or decision is made or
remedy or relief orderedwill havethirty (30) days after receiptof the award, order, or
decision to commence and thereafter diligently pursueto completion any action or
proceeding in any court of the State of California of appropriatejurisdiction located in
the County of San Joaquin to obtainjudicial reviewof the award, order, or decision. If
the award, order, or decision is mailed, itwill be deemed to be receivedwithin five (5)
days after deposit in the mail.
19.2.2.8 If no such action or proceeding is timely commenced, the
award, order, or decisionwill thereupon immediately becomefinal. The Party against
whom the award, order, or decision is made or remedy or relief ordered shall within
thirty (30)days after the award, order, or decision becomesfinal make fuII payment
and/or commence and thereafter diligently pursueto completion any other action
required by the award, order, or decision. The Party in whose favor the award, order, or
decision is made may requestand obtainfrom any court of the State of Californiaof
appropriatejurisdiction located in the County of San Joaquin a Judgment upon the
award, order, or decision rendered bythe arbitrator, which maythereafter be entered in
the recordsof said.court.
19.2.2.9 If an action or proceeding is timely filed in any court of the
State of Californiaof appropriatejurisdiction located in the County of San Joaquinto
obtainjudicial review of the award, order, or decision,the Partieswill havethe rightto
seek vacation or modificationof any portion of the award, order, or decision according
to the grounds provided by California law at the time for the vacation or modificationof
an award, order, or decision in a non judicialarbitration. The findings of fact of the
arbitratorwill be binding on all Partiesand shall not be subject to further reviewexcept
as allowed by the appeal provisionsof this Section 19.2.2.9.
19.2.2.10 The arbitratorwill be paid a per diem or hourly charge as
established at the time of appointment. Each Partywill bear its own attorneys' fees and
costs in presenting its case. All other actual costs of conducting the arbitration,
includingwithout limitationthe administrativefee and the arbitrator's compensation, will
be shared equally.
19.2.2.11 This arbitration clause shall be interpreted underthe
arbitration laws of the State of California and notthe FederalArbitration Act, 9 U.S.C. §
1. Except as otherwise provided in this Agreement, any motion, application, complaint
or proceeding arising out of or relating to this arbitration clause shall be determined in
accordancewiththe law of the State of California.
19.2.2.12 Unless otherwise provided in this Agreement or otherwise
agreed inwriting, the Partiesshall continueto performtheir respective obligations under
this Agreement during the pendency of arbitration proceedings.
19.2.2.13 Exceptas modifiedor stated to the contrary inthis Section
19,the rules and proceduresof the Arbitrator in effect at the time of the arbitrationwill
apply to the arbitration procedure.
20. TERMINATION
This Agreement may only be terminated by a mutualwritten agreement.
21. SURVIVAL
The provisionsof the Agreement concerning past costs (Section4), replacement
of prior contracts (Section5), applicable insurance provisions (Section 18) are
continuing in nature and shall survive any termination of this Agreement.
22. AMENDMENTS
ThisAgreement is notsubjectto modificationor amendment, except inwriting as
executed by both NCPA and Lodi, which writing shall expressly statethat it is intended
by the Partiesto amend the terms and conditions of this Agreement.
23. CONTROLLING LAW
This Agreement and all matters relatingto it shall be governed by the laws of the
State of California.
24. WHOLE AGREEMENT
This Agreement constitutesthe entire understand ingand agreement of the
Parties and supersedes all discussions, negotiations or previous agreements between
the Partieswith respectto all or any part of the subject matter hereof.
25. ASSIGNMENT
This Agreement cannot be assignedwithout written amendment signed by both Parties.
IN WITNESS WHEREOF, each Party has executed this Agreement by its duly
authorized officers, asset forth below:
NORTHERN CALIFORNIA
POWERAGENCY
James H. Pope
General Manager
,Attest
Denise Dow,Assistant Secretary
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City Manager
Attest
City Clerk
Approved as to Form
Michael F. Dean, General Counsel
Approved as to Form
City Attorney
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Diagram! Map of RecycledWater Facilities
AMENDED AND RESTATED GROUND LEASE
THIS AMENDED AND RESTATED GROUND LEASE (this "Lease"or this
"Agreement"),dated this day of ,2010 ("Effective Date"),is entered
into by and betweenthe CITY OF LODI, a California municipality("Land lord"),and
NORTHERN CALIFORNIA POWERAGENCY, a Californiajoint powers agency
("Tenant"). Landlord and Tenant, and their successors and assigns, are singularly
referred to as a "Party"and jointly referred to as the "Parties."
RECITALS
A. WHEREAS, the Parties entered into that certain Ground Lease dated February
17, 1993 ("Original Lease");and
B. WHEREAS, the Partiesdesireto amend and restatethe Original Lease in its
entirety asset forth below.
NOWTHEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree that the Original Lease
is fully amended and restated as follows:
1 _ Definitions. When used in this Agreement, the terms described below
will have the meanings as set forth in this Section.
1.1 "Base Rent" is the rentfor the CT2 site underthe Lease and is
defined further in Section 7.1.1.
1.2 `Commencement Date" means January 1, 1993,the date that the
Lease commenced.
1.3 "CT2 Project" refers to the CombustionTurbine 2 Project, which is
a LM5000 simple cycle electrical generating facility rated at a nominal generating
capacity of 49.9 megawatts. The CT2 is located in Lodi, California on property nearthe
City of LodiWhite SoughWater Pollution Control Facility.
14 "EasementArea" refersto the easement on the east side of the
Leased Premisesforthe construction of a road and is morefully defined in Section 3.
1.5 "Effective Date" means the date first written above upon which the
Parties entered into the Amended and Restated Lease.
Page4 of 25
1.6 "Landlord"refers to the City of Lodi, a California municipality.
1.7 "Leased Premises" or "Premises"refers to the real property in the
City of Lodi that is the subject of this Lease, as more fully described in Section 2.
1.8 The "Lodi Energy Center" ("LEC") will be a natural gas-fired,
combined -cycle electrical generating facility rated at a nominal generating capacity of
255 megawatts(MW). The LEC is proposedto be constructed on a parcel of
approximately 4.4 acres located adjacentto the LodiWSWPCF to the east, treatment
and holding ponds associatedwith the WSWPCF to the north, the existing CT2 (STIG
plant) to the west, and the San Joaquin County Mosquito and Vector Controlfacility to
the south.
1.9 The "LECRent" meansthe rentto be paidfor the portion of the
Leased Premisesto be used for the LEC and is morefully defined in Section 7.2.1.
1.10 The "Original Lease" refers to that certain Ground Lease dated
February 17, 1993.
1.1 1 "Offer"refers to a bonafide offerfrom a third partyto purchase all
or a portion of the Leased Premises.
1.12 "Party"singularly refersto eitherthe Landlord orthe Tenant and
"Parties" refers to the Landlord and Tenant collectively.
1.13 "Project"refers to the construction, operation and maintenance of.
gas turbine power generation plant and incidentalancillary uses including without
limitation, the transmission of energy.
1.14 "Tenant"refers to the Northern California PowerAgency, a
Californiajoint powers agency.
1.15 "Term"refers to the term of the Lease as defined in Section 6.
1.16 "Utilities"refers to various utility lines, pipelines and a test well
located on or belowthe Leased Premises.
2. Premises.
Landlord leasesto Tenant and Tenant leasesfrom Landlordthat real property in the
City of Lodi, County of San Joaquin, California, described on the map in ExhibitA
attached hereto and incorporated into this Agreement by reference (the"Leased
Page 5 of 25
Premises" or the "Premises")for the term (described below) and uponthe terms and
conditions set forth in this Agreement.
3. Easements. In addition to the Premises,Tenant needs additional land
adjacentto the east side of the Leased Premisesfor a road. A map identifyingthe
additional area (the "EasementArea") is contained in Exhibit B attached to this
Agreement and incorporated herein bythis reference. Landlord likewise needs access
to this area to maintainthe adjacent berm. Tenant and Landlord agree to enter into and
recordthe Easement Agreement contained in Exhibit attached to this Agreement and
made a part hereof pursuantto which Tenant shall be provided with an access and
roadwayeasement across the EasementArea throughoutthe term of this Lease as
such may be extended. Tenant's rights to use the EasementArea shall be exclusive
aside from access rights reservedto Landlord as set forth in the EasementAgreement.
4. Use. Tenant may use the Leased Premisesforthe purpose of the
construction, operation and maintenance of gas turbine power generation plants and
incidental ancillary uses including without limitation,the transmission of energy,
(collectively,the "Project),and for any other lawful purpose.
5. Landlord's Retained Rights.
5.1 Landlord maintains various utilities, pipelines and a test well
(collectively"Utilities")located on or belowthe Leased Premises. The Utilities are
described morefully in Exhibit D attached hereto and incorporated herein by this
reference. Landlord hereby retains the rightto accessthe Leased Premises, upon
seventytwo (72) hourswritten noticeto Tenant (except inthe event of emergency),to
repairor maintainor removethe Utilities. Landlord agrees notto interferewith Tenant's
activities on the Premises and will expeditiously repairor replace any damage that
Landlord causes on the Premises at Landlord's sole expense. With a minimum of
seventy two (72) hours notice to Landlord, Tenant, at its sole expense, may relocate
any or all of Landlord's Utilities. The schedule for such relocation shall be at a time
mutuallyagreed upon bythe Parties. Tenant agreesto reconstructthe Utilitiesto
standards acceptableto Landlord.
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5.2 Landlord must removethe groundwater monitoringwell located on
the south east cornerof the Premises, as shown on Exhi i A, within ninety (90) days of
the Effective Date of this Agreement.
6. Term: Extension. The Term of this Lease shall commence on January 1,
1993("CommencementDate"),and shall terminate (unlessextended pursuantto this
Section 6 or earlier terminated in accordancewith the provisionsof this Lease) on the
fiftieth (50th) anniversary of the Commencement Date ("Term"). Subjectto Landlord's
retained rightsas described in Sections3 and 5,Tenant's rightto exclusive possession
of the Leased Premisesshall commence on the Commencement Date. Tenant shall
have the rightto extend the Term of this Lease on all the terms and conditions set forth
hereinfor an additional period of fifty (50)years, to be exercised bywritten notice to
Landlord during the lastyear of the initial Term of this Lease.
7.1 Rentfor CT2 Site.
7.1.1 Annual Rent. On or before July 1 of each year during the
term of this Lease, Tenant agreesto pay to Landlord in advance annual rent ("Base
Rent') in the amount of Twenty Thousand Three HundredTen Dollars ($20,310) for the
following Lease Year (i.e., each twelve (12) month period during the term of this Lease,
commencing on July 1 and ending on June 30).
7.2 Rent for LEC.
7.2.1 Annual Rent. In addition to the Base Rent, commencing
upon the earliest of the date upon which: (i)the California Energy Commission issues
the AFC Licensefor the Lodi Energy Center Unit Project ("LEC" ),(ii) the Project
Participants execute the Phase agreements supporting construction of the LEC, or
(iii) the Project Participantsexecute Power PurchaseAgreements supporting
construction of the LEC, Tenant agrees to pay to Landlord advance annual rent in the
amount of FortyThousand Dollars ($40,000.00 ) (the "LECRent")on or before July 1 of
each year for the following Lease Year. Forthe initial LeaseYear for which LEC Rent
is payable pursuantto this Section 7.2.1 ,the LEC Rent shall be prorated on the basis of
a 365 day year and shall be payablefor the numberof days remaining in such initial
Lease Year.
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7.2.2 Annual Rental Adiustments. Duringthe ten (10)year period
commencing on July 1 of the first full LeaseYear after the obligation to pay LEC Rent
commences, the LEC Rentwill increase by two and one half percent (2.5%) annually
starting after the first full year. The rental increasewill go into effect on July 1St of each
year.
7.3 Rental Ado ustments. Otherthan as specified in Section 7.2.2, and
in this Section 7.3, there shall be no adjustmentto the Base Rent or the LEC Rent
payable pursuantto this Agreement. On the ten 4Ca) year anniversary of the Effective
Date of this Agreement, either Tenant or Landlord may initiate a review of the then
existing Base Rentand/or LEC Rent based on the market conditions at the time of the
requested review. Such review must be conducted by a mutually acceptable neutral
third party. The Partieswill share equally in the cost of any mutually approved neutral
third party's services. Any supported adjustmentto the then existing Base Rentor LEC
Rent may not vary by more than twenty five percent (25%) up or down (f/- 25%) from
the then existing rent.
7.4 Pavments. All rentto be paid byTenant to Landlord underthis
Agreement must be in lawful money of the United States of America and must be paid
without deduction or offset, prior notice or demand, and at such place or places as may
be designated from time to time by Landlord.
8. Utilitv Pavments. Duringthe term of this Lease, except for utility payments
relatedto Landlord's UtiIities,Tenant agreesto pay all charges and expenses in
connectionwith utility services and to protect Landlord and the Leased Premisesfrom
all such charges and expenses.
9. Repairsand Maintenance.
9.1 At all times during the term of this Lease, Tenant shall, at its cost
and expense, maintainthe Leased Premisesand all improvementsthereon in good
order and repairand safe condition, including but not limitedto, fences and roadways
predominantly used by Tenant. Tenant will keep Landlord apprised of the volume and
nature of truck traffic upon the Leased Premises.
9.2 Exceptas provided in this Agreement, Landlord shall not be
obligated to make any changes, alterations, additions or repairs in, on or about the
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Leased Premises or any part hereof or any improvements installed thereon. Tenant
waives all provisions of law that may impose a duty of repair on Landlord.
9.3 Tenant shall indemnify and save harmless Landlord against all
actions, claims and damages by reason of <11)Bnant`s failure to perform Tenant's
obligations set forth in this Section 9, or (2) Tenant's nonobservance or nonperformance
of any law, ordinance or regulation applicableto the Leased Premises, and any liability
or duty to repair imposed by the laws of the State of California.
9.4 Tenant agrees to construct a perimeterfence around the Leased
Premises,
9.5 NotwithstandingTenant's obligations to maintain and repairthe
Property in this Section 9, Tenant will have no obligation to maintain or repairany of
Landlord's Utilities identified in Exhibit D.
10. Mechanic's Liens.
10.1 Covenant Against Liens and Claims. Tenant shall not allow or
permitto be enforced againstthe Leased Premisesor any partthereof, any mechanic's,
material men's, contractor's or subcontractor's liens arising from any claim growing out
of work cf any construction, repair, restoration, operation, replacement or improvement,
or any other claim or demand no matter how the same may arise. Tenant shall pay or
cause to be paid all of said liens, claims or demands, arising as a result of Tenant's
activities before any lawsuit is broughtto enforce them against the Leased Premises.
Tenant agrees to indemnify and hold the Landlord and the Leased Premisesfree and
harmless from all liabilityfor any and all such liens, claims and demands arising as a
result of Tenant's activities, together with reasonable attorneys' fees and all costs and
expenses incurred by Landlord in connection therewith except to the extent any such
liens, claims, demands, fees, costs and expenses arise as a result of Landlord's actions
orfailure to act.
10.2 Tenant's Right to Contest Liens. Notwithstanding anythingto the
contrary set forth above, if Tenant shall in good faith contestthe validity of any such
lien, claim or demand, then Tenant shall, at its expense, defend itself and Landlord
against the same and shall pay and satisfy any adversejudgment that may be rendered
thereon beforethe enforcement thereof against Landlord or the Leased Premises.
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10.3 Landlord Paving Claims. In the event Tenant fails to pay and
discharge or cause to be paid and discharged,when due and payable, any tax,
assessmentor other charge upon or in connectionwith the Leased Premisesthat is the
responsibilityof Tenant pursuantto this Lease, or any lien or claim for labor or material
employed or used or any claim for damages arising out of Tenant's construction, repair,
restoration, replacement, maintenance and use of the Leased Premises and any
improvementsthereon, or anyjudgment on any contested lien or claim that resultsfrom
Tenant's activitieson the Leased Premises,or any insurance premium or expense in
connectionwith the Leased Premises and improvementsthat Tenant is obligated to
provide pursuantto this Lease, or any other claim, charge or demand which Tenant has
agreed to pay or cause to be paid underthe terms of this Lease, and if Tenant, afterten
i(a) business days' written noticefrom Landlordto do so fails to pay and dischargethe
same, or in the event Tenant contests such tax, assessment, claim or charge then
Landlord may, at its option, pay any such tax, assessment, insurance expense, lien,
claim, charge or demand, or settle or discharge any action therefore, orjudgment
thereon, and all costs, expenses and other sums incurred or paid by Landlord in
connectionwith any of the foregoing shall be paid by Tenant to Landlord upon demand,
togetherwith interestthereon at BankofAmerica's prime ratefrom the date incurredor
paid. Any default in such repayment by Tenant shall constitute a breach of the
covenants and conditions of this Lease.
11. Insurance and Indemnity.
11.1 Landlord's Nonliability. Exceptfor (a) Landlord's Utilities;
(b) Landlord's activities to maintain, install, remove or access its Utilities; or (c) any
other negligentor willful actor omission by Landlord, its employees, agents, invitees or
volunteers that results in injuryor damageto persons or property, Landlord shall not be
liablefor any loss, damage or injuryof any kindto any person or property arising from
Tenant's use of the Leased Premises, or any partthereof, or caused by any defect in
any building, structure or other improvementsthereon or in any equipment or other
facility therein installed by Tenant, or caused by or arising from any act or omission of
Tenant or any of its agents, employees, licensees or invitees, or by or from any accident
on the Leased Premises or any fire or other casualty thereon, or occasioned by the
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failure of Tenant to maintain the Leased Premises and all improvementsthereto in a
safe condition, or arising from any other cause.
1 K2 Indemnification cf Landlord. Notwithstanding anything to the
contrary contained in this Lease, and irrespective of any insurance carried by Tenant for
the benefit cf Landlord underthe terms cf this Lease, Tenant agrees to protect,
indemnity and hold the Landlord and the Leased Premises harmless from any and all
damages and liabilities at anytime occasioned by or arising out of (1) any act, activity or
omission cf Tenant, or cf anyone holding under Tenant, or (2) the occupancy or use of
the Leased Premises or any part thereof,by or under Tenant, or (3)any state or
condition of the Leased Premises or any part thereofarising after the Commencement
Date cf the Original Lease and caused by Tenant.
11.3 Liability Insurance. Tenant shall procure and maintain at all times
during the term of this Lease, at its sole cost and expense, a policy or policies of
commercial general liability insurance by the terms cf which NCPA is a named Insured
and the City of Lodi is an additional insured and are indemnified against liability for
damage or injury to property or person, including death, of any person entering upon or
using the Leased Premises or any improvementsthereon or any part thereof, with a
combined single limit for bodily injury and property damage in an amount of not less
than FiveMllim Dollars ($5,000,000). Such public liability insurance policy or policies
shall b e stated to b e primary and noncontributing with any insurance which may b e
carried by Landlord and shall contain a provision (provided such provisions are
available without increased premium) that the Landlord, although named as an
additional insured shall nevertheless be entitled to recover under that policy for any
loss, injury or damage to the Landlord, its agents and employees orthe property of such
p e r s o n s by reason of the negligence cf Tenant. Tenant may at its option self -insure
upon the foregoingterms.
11.4 Certificate of Insurance. Al policies of insurance procured and
maintained by Tenant hereunder shall be issued by companies having not less than
Best'sk Class rating and shallbe issued in the name cf the Landlord and Tenantfor
the mutual andjoint benefit and protection cf the parties. Executed copies Cf all
insurance policies or a certificatethereof shall contain a provision that not less than
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thirty (30) days' written notice shall be given to Landlord priorto the cancellation,
reduction of coverage, expiration or any material change in any such policy.
11.5 Failureto Provide Insurance. IfTenantfails or refusesto procure
or to maintain insurance as required by this Lease or fails or refusesto furnish Landlord
with required proofthatthe insurance has been procured and is inforce and paidfor,
Landlord shall have the right at Landlord's election, upon ten (10) days advance written
notice, to procure and maintain such insurance. The premiums paid by Landlord shall
be treated as added rent due from Tenant with interest at the Bank of America prime
rate, to be paid within thirty (30) days of demand. Landlord shall give prompt notice of
the payments of such premiums, stating the amounts paid and the names of the insurer
or insurers; and Landlord shall provide copies of insurance policies to Tenant.
11.6 Waiver of Subrogation. Each Partyshall cause each insurance
policy obtained by itto providethat the insurance companywaives all right of recovery
byway of subrogation against either Party in connectionwith any damage covered by
any policy, provided obtaining such a waiver in each such policy is then available at a
reasonable charge. This provision is intendedto restricteach Party (as permitted by
law) to recoveryagainst insurance carriers to the extent of such coverage, and waive
fully, for the benefitof each Party, any rights or claims that might give riseto a right of
subrogation by any insurance carrier.
12. Landlord's Covenants.
12.1 Water Supply to CT2 Proiect. Landlord shall make available to
Tenant a minimum of 550,000 gallons per day of reclaimedwater meeting the
requirementsof California Code of Reg ulations,Title 22, Division4, Chapter 3 from the
White Slough Water Pollution Control Facilityto the CT2 project.
12.2 Water Supply to the LEC Proiect. Landlord agrees to make
available to Tenant reclaimedwater for the LEC project upon the terms and conditions
contained in the Agreement to Supply RecycledWater attached to this Agreement as
Exhibit E and incorporated herein.
12.3 Discharge of Water. Landlord shall upon payment by Tenant of
applicable connection fees, accept Tenant's domestic wastewater from the Project into
the White Slough Water Pollution Control Facilityor other suitable treatment plant.
Page 12 of 25
13. Repair and Restoration. If during the term of this Lease any building or
improvementon the Leased Premises or any partthereof shall be damaged or
destroyed by fire or other casualty, Tenant may, at its sole cost and expense, repairor
restorethe same or may elect notto repairor restore. IfTenant elects notto repairor
restore, Tenant may in its sole discretion choose to terminate this Lease effective as of
the date of such damage or destruction. Any monies received by Landlord as
compensationfor damage or lossto improvements installed by Tenant on the Premises
shall be paid to Tenant and are hereby assigned to Tenant.
14. Assignment and Subletting. Tenant may not encumber, assign, sublease
or otherwise transferthis Lease, or any right or interest hereunder, or in or to any of the
improvements constructed or installedon the Leased Premises, in whole or in part,
without the priorwritten consent of Landlordwhich consentwill not be unreasonably
withheld, conditioned or delayed.
15. Default. The occurrence of any one or more of the following events shall
constitute a default underthis Lease by Tenant:
15.1 Failureto pay an installmentof rentor other sum;
15.2 Failureto pay any insurance premium, lien, claim, demand,
judgment or other charge providedfor in this Lease to be paid or caused to be paid by
Tenant at the time and in the manneras provided in this Lease;
15.3 Failureto maintainthe Leased Premises or cause the same to be
maintained as providedfor in this Lease;
15.4 Abandonment of the Leased Premises after completion of
construction for a continuous period of one hundredtwenty (120) days; or
15.5 Failureto perform or breach of any other covenant, condition or
restriction providedfor in this Lease.
16. Remedies in Eventof Default. Upon any default of Tenant, and in the
event the default is due to the failure of Tenant to makethe payment of any installment
of rent or other sum when due, and inthe event Tenant fails to remedy such default
within ten (10) businessdays afterwritten noticeto do so, or upon any other default by
Tenant, and in the event that Tenant fails to remedysuch other defaultwithin thirty (30)
days after written noticefrom Landlordso to do specifyingthe nature of such default, or
Page 13 of 25
if such default cannot be cured within thirty (30) days and Tenant has not commenced
corrective action and prosecutedthe same to completionwith due diligence, or inthe
event that the default is of such a naturethat it cannot be cured by any action of Tenant,
then and in any of these events, in additionto any other remedy Landlord may have by
operationof law, Landlordshall havethe right but notthe obligation without any further
demand or notice, to reenterthe Leased Premises and eject all persons from the
Leased Premises, using due process of law, and immediatelyterminate Tenant's rightto
possession of the Premises, and repossessthe same by summary proceedingsor other
appropriate action, and Landlord shall thereupon be entitled to receivefrom Tenant all
damages allowed by law.
17. Estoppels Certificates. Landlord and Tenant shall, respectively, at any
time and from time to time upon not less than ten (10) business days' priorwritten
request by the other, deliverto the requesting party an executed and acknowledged
statement in writing certifying:
17.1 That this Lease is unmodifiedand in full force and effect or if there
has been any modification(s) thereof that the same is in full force and effect as
modified, and stating the nature of the modificationor modifications;
17.2 That to its knowledgethe requesting party is not in default under
this Lease or if any such default exists, the specific nature and extent thereof;
17.3 The date to which rent and other charges have been paid in
advance, if any; and
17.4 Such other information pertainingto this Lease as may reasonably
be requested.
Each certificate delivered pursuantto this Section 17 may be relied on by any
prospective purchaseror transferee of the Leased Premisesor of Landlord's or
Tenant's interest hereunderor by any fee mortgageecf the Leased Premises or of
Landlord'sor Tenant's interest hereunder or by any assignee of any such mortgagee.
18. Ownershipof Improvements. Title to any buildings, improvementsor
fixtureswhich may be placed on the Premises by Tenant shall remain in Tenant.
Landlord agrees to subordinate all rights, if any, which Landlord may have in any of
such improvementsto the rightsofTenant. Tenant may removethe improvements at
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anytime during the term of this Lease. Any improvements remaining on the Premises
after expiration or soonertermi nation of the Lease shall becomethe property of
Landbrd.
19. Pavmentsand Notices. Any noticeto be given or other document to be
delivered by either partyto the other party may be given by personal delivery or may be
deposited inthe United States mail in the State of California, duly registered or certified]
with postage prepaid, and addressedto the partyfor whom intended as follows, or it
may be sentvia facsimilewith a hard copy deposited inthe United States mail
addressed to the partyto whom itwas intendedwith sufficient postage pre -paid and will
be duly given upon receiptof successful transmission to the following facsimile
numbers:
To Landlord: City of Lodi
Attn: City Manager
221 West Pine Street
Lodi, CA 95240
Facsimile: 209-333-6807
To Tenant: Northern California PowerAgency
Attn: Assistant General Manager
Generation Services
651 Commerce Drive
Roseville, CA 95678
Facsimile: 916-783-7693
Either party mayfrom time to time bywritten noticeto the other party designate a
different address which shall be substitutedfor the one specified above. If any notice or
other document is sent by registered or certified mail, as provided above, the same
shall be deemed served or delivered seventy-two (72) hours after the mailingthereof.
20. Rightof First Refusal. Landlord shall not at anytime during the term of
this Lease as such may be extended sell or convey or agree to sell or convey all or any
portion of the Leased Premiseswithout first having complied with the requirements of
this Section 20. If Landlord desires to sell or convey all or any portion or portions of the
Leased Premises, Landlord must obtain from athird party bona fide arms' length offer
(the "Offer") and Landlord must submit a written copy of the Offerto Tenant and must
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give Tenant forty-five (45) days within which to elect to meetthe Offer. IfTenant elects
to meetthe Offer, Tenant will give Landlordwritten noticethereof and closing must be
held within forty-five (45) days thereafter, whereupon Landlordwill convey to Tenant all
or any portion of the Leased Premiseswhich are the subject of the Offer. At closing,
Landlord shall deliverto Tenant a grant deed, sufficientto conveyto Tenant fee simple
title to the subject portion of the Leased Premisesfree and clear of all liens, restrictions
and encumbrances. Landlord shall pay all transfer taxes in connection with such
conveyance. This right of first refusal shall continue as to any and all portions of the
Leased Premisesthroughout the term of this Lease as such may be extended. In the
event Tenant elects not to meet any Offer, Landlord may thereafter sell the portion or
portions of the Leased Premiseswhich are the subject of the Offer only to the party who
madethe Offer and only strictly in accordancewith the terms thereof. To prevent
Landlordfrom defeatingthe rightsof Tenant hereunder, Landlord agreesthat Landlord
will at no time accept an offer to purchase all or any portion of the Leased Premises
together with any other propertyof Landlord in contravention of Tenant's rightto
purchasethe Leased Premises.
21. Abandonment of Wells
21.1 Abandonment and Closure of Iniection Wells. Upon termination of
this Lease, Tenant, at its sole expense, will abandon and close any and all-injection
wells utilized on the Premises by Tenant. Such abandonment shall be done in
compliancewith all applicable state and federal laws and regulationsand underthe
direction of the California Departmentof Oil and Gas.
21.2 Abandonment Of Southeast CornerTest Well. The Landlord at its
sole expensewill abandon and close the test well located in the southeast corner of the
Premises and will abandon the well in a timeframe mutually agreed to bythe Parties.
Such abandonment shall be done in compliancewith all applicable local, state and
federal laws and regulations.
22. Dispute resolution.
22.1 Mediation. The Parties agree to first submit any dispute arising out
of or in connectionwith this Leaseto a mutually acceptable professional mediatorand
to negotiatein good faith toward reaching an agreementwith respectto the dispute. In
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such event, neither Party may proceedwith arbitration until the completion of mediation,
the mediation being an express condition precedentto further remedies. The Parties
may, however, agree in writing to proceed directly to arbitration. Each Partywill pay an
equal share of the costs of retainingthe professional mediator butwill bear its own
costs, including, but not limitedto its own attorneys'fees associated with participating in
any mediation.
22.2 Bindinct arbitration. Should the Parties be unable or unwillingto
resolvetheir dispute through the mediation process provided in Section 22.1 above,
either Party may give written noticeto the other Party and elect to have the matter
resolved by final and binding arbitration in accordancewith the rules and procedures of
the arbitrator selected in accordancewith this Section 22.2. The Party seeking
arbitration shall setforth in its noticethe particularsof its claims and shall statewith
specificity the issue(s) to be submitted to arbitration and the relief sought. Within
thirty (30) days of the date of the election to arbitrate, the parties shall select a single,
mutually agreeable arbitrator. Ifthe Parties are unableto agree, they shall requestthat
the Judicial Arbitration and Mediation Service, Inc. ("JAMS") if such entity is then in
existence, appoint an arbitrator in accordancewith then current procedures. The
arbitrator must be a retiredjudge of the Superior Court of California or the Court of
Appeal of California, or a retiredjudge of the United States District Court sitting in
California. If JAMS is not in existence, the PresidingJudge of the San Joaquin Superior
Courtwill appoint an arbitrator in accordancewith its then current procedures.
22.2.1 The rules and proceduresfor arbitration shall be as follows:
22.2.2 The arbitrator must be selected and arbitration must be
conducted within a reasonabletime, but in no event laterthan ninety (90) days after the
date upon which the demand for arbitration is filed.
22.2.3 The arbitration proceedings must be conducted in San
Joaquin County, California, at a time and location as agreed to in writing bythe Parties,
or in absence cf an agreement, as designated by the arbitrator.
22.2.4 Subjectto the same rules pertainingto privileged
communications and attorneywork productthat would apply if the proceedingwas filed
in the courts of the State of California,the arbitrator shall have the authorityto make all
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decisions regarding the relevance, materiality, and admissibility of all evidence offered
at the arbitration. The California Evidence Code shall generally guide the arbitrator in
making such decisions.
22.2.5 The arbitrator may issue any remedy or relief, whether
provisional or permanent, including but not limited to a defaultjudgment, which the
Parties could have obtained underthe law applicable in courts of the State of California
underthe same factual circumstances, and the arbitrator mustfollow and otherwise
employthe standards for issuing such relief as defined by California law; provided,
however, that the arbitratorwill have no authority orjurisdiction to enter an award, order,
or decision for consequential, special, exemplary or punitive damages. The arbitrator
may also grant such ancillary relief as is necessaryto make effective the award, order,
or decision, includingthe issuanceof declaratory relief, compelling specific
performance, or any other relief or action permitted by California law.
22.2.6 Both Parties may conduct discovery as if the matterwere
pending before a Superior Court of the State of California and the arbitratorwill havethe
full powerof the State of Californiato issue and enforce subpoenas and to award
sanctions. Either Partywill have the rightto demand in writing that the other Party
provide a list of witnesses it intendsto call at the hearing, designating which witnesses
will be called as expert witnesses, and a list of documents it intendsto introduce at the
hearing. The responding Party'slist(s) must be served personally or by registered or
certified mail on the requesting Party,with a copy to the Arbitrator, at leastthirty (30)
days beforethe hearing.
22.2.7 Each Party may be represented by counsel.
22.2.8 No laterthan sixty (60) days following closing of the
arbitration hearing, the arbitratorwill make an award, order, or decision and issue a
written opinion consisting of findings of fact and conclusions of law and setting forth the
bases of the award, order, or decision. The arbitrator may include in his or her award,
order, or decision pre -award interestand post -award interest at the legal ratewhere
authorized by law. The Party againstwhom the award, order, or decision is made or
remedy or relief ordered will have thirty (30) days after receipt of the award, order, or
decision to commence and thereafter diligently pursueto completion any action or
Page 18 of 25
proceeding in any court of the State of California of appropriatejurisdiction located in
the County of San Joaquin to obtainjudicial review of the award, order, or decision. If
the award, order, or decision is mailed, itwill be deemed to be received within five (5)
days after deposit in the mail.
22.2.9 If no such action or proceeding is timely commenced, the
award, order, or decision will thereupon immediately becomefinal. The Party against
whom the award, order, or decision is made or remedy or relief ordered shall within
thirty (30) days after the award, order, or decision becomes final makefull payment
and/or commence and thereafter diligently pursueto completion any other action
required bythe award, order, or decision. The Party in whose favor the award, order, or
decision is made may request and obtain from any court of the State of California of
appropriatejurisdiction located in the County of San Joaquin a Judgment upon the
award, order, or decision rendered bythe arbitrator, which maythereafter be entered in
the recordsof said court.
22.2.10 If an action or proceeding is timely filed in any court of the
State of California of appropriatejurisdiction located in the County of San Joaquin to
obtain judicial review of the award, order, or decision, the Partieswill have the rightto
seek vacation or modificationof any portion of the award, order, or decision according
to the grounds provided by California law at the time for the vacation or modificationof
an award, order, or decision in a non-judicialarbitration. The findings of fact of the
arbitratorwill be binding on all Partiesand shall not be subjectto further review except
as allowed by the appeal provisionsof this Section 22.2.10.
22.2.1 1 The arbitratorwill be paid a per diem or hourly charge as
established at the time of appointment. Each Partywill bear its own attorneys' fees and
costs in presenting its case. All other actual costs of conductingthe arbitration,
including without limitationthe administrativefee and the arbitrator's compensation, will
be shared equally.
22.2.12 This arbitration clause shall be interpreted underthe
arbitration laws of the State of Californiaand notthe FederalArbitration Act, 9
U.S.C.§ 1. Except as otherwise provided in this Lease, any motion, application,
Page 19 of 25
complaint or proceeding arising out of or relating to this arbitration clause shall be
determined in accordancewith the law of the State of California.
22.2.13 Unless otherwise provided in this Lease or otherwise
agreed in writing, the Parties shall continue to perform their respective obligations under
this Lease during the pendency of arbitration proceedings.
22.2.14 Except as modified or stated to the contrary in this Section
22, the rules and procedures of the Arbitrator in effect at the time of the arbitration will
apply to the arbitration procedure.
23. Miscellaneous.
23.1 Attorneys' Fees. Exceptas otherwise provided in Section 22
respectingattorneys'fees in mediationand arbitration, in the event any action is brought
by Landlordor Tenant againstthe otherto enforceorfor the breach of any of the terms,
covenants or conditions contained in this Lease, the prevailing party shall be entitled to
recover reasonableattorneys'fees to befixed bythe Court, togetherwith costs of suit
therein incurred.
23.2 Waiver. Nowaiver of any breach of any of the terms, covenants,
agreements, restrictionsor conditions of this Lease shall be construed as a waiver of
any succeeding breach cf the same or other covenants, agreements, restrictionsand
conditions hereof. No delay or omission of either party to exercise any right or remedy
shall be construed as a waiver of any such right or remedy or of any default under this
Lease.
23.3 Holding Over. If Tenant holds over the Leased Premises after the
expiration of the term hereof with the consent of Landlord, either express or implied,
such holding over shall be construed to be only a tenancy from month to month, subject
to all the covenants, conditions and obligations in this Lease, and Tenant hereby agrees
to payto Landlordthe same monthly rentas provided inthis Lease; provided, however;
that nothing herein contained may be construedto give Tenant any rightsto so hold
over and to continue in possession of the Leased Premises after the expiration of the
term hereof.
23.4 Surrender at End of Term. Uponthe end of the term of this Lease,
as provided herein, or any extension thereof, or sooner termination of this Lease,
Page 20 of 25
Tenant shall surrenderto Landlord all the Leased Premises, together with all
improvementsas hereinabove provided, and all fixtures. Upon surrender of the
Premises,Tenant shall, if directed bythe PublicWorks Director, remove at its own
expense any and all equipment remainingthereon.
23.5 Lease Binding Upon Successors and Assigns. Subjectto the
limitations on assignmentand subleasing, each of the terms, covenants and conditions
of this Lease shall extend to and be binding on and inureto the benefit of not only
Landlord and Tenant, but each of their successors and assigns. Whenever inthis
Lease reference is made to either Landlord or Tenant, the reference shall be deemed to
include, wherever applicable, the successors and assigns of the Parties as if in every
case expressed.
23.6 Inspection. Landlord reservesthe rightfor Landlord and Landlord's
agents and representativesto enter upon the Leased Premises at any reasonabletime
with seventy-two (72) hours advancewritten noticefor the purpose of attendingto
Landlord's interest hereunder and to inspectthe Leased Premises.
23.7 Relationship of Parties. The relationship of the Parties hereto is
that of Landlord and Tenant, and it is expressly understood and agreed that merely as a
result of this Lease, Landlord does not in anyway norfor any purpose becomea
partner of Tenant or ajoint venture with Tenant in the conduct of Tenant's businessor
otherwise, except as provided by the Phase2 and Phase combustion turbine project
number 2 agreements or the LEC agreements or any similar agreement.
23.8 Time of the Essence. Time is expressly declared to be of the
essence of this Lease.
23.9 Memorandum of Lease. This Agreement will not be recorded, but
the Parties agree to execute and deliver a Memorandumof this Lease in recordable
form, which Memorandum shall be recorded in the office of the Recorder in San Joaquin
County, California.
23.10 Quitclaim. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliverto Landlordwithin five (5) days after
written demand from Landlord to Tenant any quitclaim deed or other document required
Page 21 of 25
by any reputabletitle companyto removethe cloud of this Leasefrom the real property
subjectto this Lease.
23.1 1 Numberand Gender. Wheneverthe singular number is used in
this Leaseand when required bythe context, the same shall includethe plural, and the
masculine gender shall includethe feminine and neutergenders, and the word "person"
shall include corporation, firm, entity or association. Ifthere is morethan one Tenant,
the obligations imposed underthis Lease upon Tenant shall bejoint and several.
23.12 Headinqs and Titles. The marginal headingsor titles to the
paragraphsof this Lease are not a part of this Lease and have no effect upon the
construction or interpretationof any part of this Lease.
23.13 EntireAgreement. This Lease and the Exhibits hereto contain the
entire agreementof the Parties heretowith respectto the matters covered hereunder,
and no previouswritten or oral agreements, statements or promises made by any Party
to this Agreement respectingthe lease of the Premisesthat are not contained inthis
Leasewill be binding or valid.
23.14 Force Maieure. Except as to the paymentof rent, neither of the
Parties heretoshall be chargeablewith, liablefor, or responsibleto, the otherfor
anything or in any amount for any delay caused byfire, earthquake, explosion, flood,
hurricane,the elements, acts of God, or the publicenemy, action or interference of
governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes,
or lockouts or any other cause whether similar or dissimilarto the foregoing, which is
beyond the control of the Parties and any delay due to said causes or any of them shall
not be deemed a breach of or default in the performancesof this Lease.
23.15 Disclaimerof Representation. Exceptas otherwise specifically
provided in this Lease, Landlord has made no representation so r warranties to the
Tenant concerningthe Leased Premises, the present usethereof or the suitabilityfor
Tenant's intended use of the property. The foregoing disclaimer includes, without
limitation, topography, climate, air, water, water rights, utilities, present and future
zoning, soil, subsoil, drainage, access to public roads, proposed routes of roads, or
extension thereof, or effect of any state orfederal environmental protection laws or
regulations.Tenant representsand warrants to Landlordthat Tenant and its
Page 22 of 25
representatives have made orwill make their own independent inspection and
investigationof the Leased Premisesand Tenant, in entering into this Lease, is relying
solely on such inspection and investigation. No patentor latent physical condition of
Leased Premises,whetheror not known or discovered, will affect the rights of either
party hereto. Any agreement, warranties or representations relating to this Lease and
not expressly contained in this Agreement shall in no way bind either Tenant or
Landlord. Landlordand Tenantwaive any rightor rescissionand all claimsfor damages
by reason of any statement, representations, warranty, promise and agreement, if any,
not contained in this Lease.
23.16 Quiet Eniovment. This Lease is subject andjunior onlyto all
existing easements, covenants, conditions and restrictionsand other matters and
encumbrances of record as of the date of this Lease or that are a part of this Lease. As
long as Tenant is not in default of any provision of this Lease, Tenant shall have quiet
enjoyment of the premises.
23.17 Termination. Tenant may terminate this Lease at any time upon six
(6) months advance notice.
23.18 Counterparts. This Lease may be executed in counterparts each of
which is deemed an original, and all such counterparts constitute one and the same
agreement.
IN WITNESS WHEREOF, the Parties have executedthis Amended and
Restated Ground Lease as of the date first set forth above.
LANDLORD:
CITY OF LODI, a municipal corporation
Blair King, City Manager
ATTEST:
RandiJohl, J.D., City Clerk
TENANT:
NORTHERN CALIFORNIA POWER
AGENCY
James H. Pope, General Manager
ATTEST
Denise Dow, Assistant Secretary
Page 23 of 25
APPROVED AS TO FORM:
D. Stephen Schwabauer
CityAttorney
MAN COOK
APPROVED AS TO FORM
Michael F. Dean, General Counsel
Page 24 of 25
EXHIBIT LIST
EXHIBITA Legal Map and Description of Premises
EXHIBIT B Roadwayand Incidental Purpose Easement
EXHIBIT C EasementAgreement
EXHIBIT D Utilities
Page 25 of 25
{t
1
• � . . j;'^Y: .� � .iPr4..: �+%<'•'tT.'. .. . - •.. - e � }Sril:.:' „ —p.�. q.
Page 26 of 31
4. R
EXHIBITA
LemArea
Aft th"trexI property situatedin thosouthwest one-quartemf Seation24jownsup 3Worth,
Range5Zest, M-DX,County of gait haquin, State ofCallfunin described asfollows:
A portionofthat ceetain parcel dtactibed :h Book 1023 Page463(yfficial-Recerda -Mvd at the
Office of tke)%ocordor ofBan Joaquin County, more padcultirlydeser-Oxed as follows-
UGMMGAX APOM %it
tftM-M&MM" -WM Mgd-ftt
Pages 42Q; S abngdFin > aeaP� N9�Cli Z3° 8'011'' west 3k9.86 fbbt to g.jsobt
wmtd 81b%gh
.66 fwt distant
frojnthewiterlIn6 of giddlum North 69Q1909"'Zwt672.51 104 thence South20419-15"Zot
74$.18 iWt to tha Point of Bngltm6g.
(409,W04. TO'
TIk IW dAsUlpftbla boW an mord Walugs w& diebm0ft ftmvn on Ow RMrd of
$avAy teg at V#ok 3z PVb 1*7t with g!m Joaquin Conray RapbWer's.0filo.
Page V of 31
EXHIBIT'S
R al 'way and Tudiea—W pulptij! Easpmefd
AD thatrealpropi* situated In ft Soieihwest ou"uarter of.3ect1enATowasidp3 Nor&,
Ranp 5 East, ALDIM, CoMW of San Jom;idmn Skto of Callfbrtt;s desedbed as follows:
Aporenof#iotcwmbag4ftddases di AokiM3Page4MQWud.1 emrds fic"tke
Offkc4IfioV ft taroftftdoAWJhCeimA%aitorapardeWarily&4b*ofland=00feetin
Hne•� i�•ruht'eTi-15;�dd-��iFswa:
}Ig�� �+. T� a�E.tite,�tst tateand4ip'aE 41'0 �.�t1�n Cta�amtia
x�a�vsrAg�ey���$opnwtouftcain�r• ofsa�Cl•�at6vna�4$ea�t�s�til�svblg
twe p) cours:1)Sont)t 24°19'35"'East88.05tmatmg zastbQ%ndary to thaaftumum
of said Seetioh 2A,2) Nath 89°20'43" Wast 83'8.23 bet81MV the South line of said8eccienlf4
to the Seudmust carper thereof. Thence frm said Point of Beginning North 89°30'37" East
483.64 feat along the centerline of ah existing agWalt road to the beginning of a enrve to the
1eft, thence 8trnugh said chm to the left having a Radius of 873.31 feet, an Are Length of
536.14, find facing subtehdod by a Chord be"ibg Noah 34%1138" East 4406$ feet 111 uee
Notes W47lA* West 30.74 tbetto•the begfunlug of s cumle the rlght, thence through still
eprxa to dke AW ltavfxug'* Radiws of MAU feeA on A#c Lenflh of 74:71 feet, anti beteg
suitended by o. Clwrdbuark&$brth Q4'94e69* But919'•*4 tkautoNorth 2MI111 East
44.VfWt*VWbg&3ilttlgsfak totlwbt% tCaae'tLatmtgi►astld iot1plaithw.vinga
Aulm 0 S&Oft4 amit?" ouf=' a mftd* at Gft4 mil
-Of%W feet, mdbnfVsw7+ —hff bf'a ftwd balft 'lOV& 2,""4311001 Wamth9:0
Ym% thom Norm WWVP WW 4Mft'twthe"Oug# uftof a carve to thn loft, Ihcuce
Sarm& suftl oarve iso- t+he.161 having &7&dlus of'2070.10 aw Are Laurk of I09.96 feet,
and being atubtended by a Chord bem M& Net th 24W'16n West 109.44 feet, thence North
Zt°2 W"West44.61festtwftNerallmeoftfte$outhweeQue-6guarter•ofsaMSeatfetr24.
The ddeftes afsaid stziip of lauda lkaII balengthened'or shertened In ierwbtato•at t3 oNerlh
Um of Sts Soulkw ed One-@ttu ceof sahl. Section. 24 and the East bmwdwy of sidd NCPA
%easepsa eek rc*cettfmy-
'1b1s kga"t4mdjdton is blad on ireeord biov blo-and diatantees shown on W&Rrcord of
&U velrSla jIt.Beok 32 Pap 175,, h 3oudoagttiia.CouatySwervices,t}f o.
Cibnu&iug 1.54 Acres (67,148 Sq.Ft.)
r
Page 29 .of31
Road E -as' em. eat
waohlo� w 44%of—I
SM- TMtq -24 .0
Ht- ap
R 9,r4OVQP' W 41981.2W
CHmN 21*4a'O*'W
CKL-99.9.9'
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Dol
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itra
Page 30 cf 31
EXHIBITC
EASEMENTAGREEMENT
Recording Requested by
and when Recorded, return to:
Northern California PowerAgency
Attn: Assistant General Manager
651 Commerce Drive
Roseville, CA 95678
EXEMPT FROM RECORDING FEES PER GOVERNMENT
GOVERNMENTCODE§§6103, 27383
This EasementAgreement ("Agreement")s made and entered into this_ day
Of ,2009, and is by and betweenthe City of Lodi, a California municipality
("City")and the Northern California PowerAgency, a Californiajoint powers agency
("NCPA'). The City and NCPA, and their successors and assigns, are singularly
referredto as a "Party"and jointly referredto as the "Parties."
RECITALS
A. The Partiesentered intothat certainAmended and Restated Ground
Lease dated as of the same date as this Agreement for property located i n the City
adjacentto the White Water Slough Water Pol I ution Control Facilityas morefully
identified on the map attached hereto as ExhibitA (the "Property" Yor the purpose of
constructing, operating and maintaininggas turbine power generation plants;
B. NCPA is constructing a new gas turbine power plant on the Property and
is in need of additional land adjacentto the east side of the Property, also identified in
the map attached as ExhibitA to this Agreement, (the "Land" Yor the purpose of
constructinga road;
C. The City usesthe Landto maintainthe berm located immediately adjacent
to the Land;
D. The Parties recognizethat their usesfor the Land are not mutually
exclusive and that the City can provide NCPA with a non-exclusiveeasementto
construct its roadwhile at the same time maintainingthe City's accessto maintainthe
berm.
C-1
NOWTHEREFORE, for valuable consideration, the receiptand sufficiency of which is
hereby acknowledged, the Parties hereby agree as follows:
1. Grantcf Easement. The City herebygrants, conveys, and dedicatesto NCPAfor
useas a roadwayor bufferoverthe Land identifiedon ExhibitA and morefully defined
in the legal description attached hereto as Exhibit g (the "Easement"). N CPAs rightto
usethe Landwill be exclusivewith the exceptionof the City's useto maintain, construct
or reconstructthe berm shown in ExhibitA. The City covenantsthat, save the rights
retained by the Cityto maintainthe berm, itwill not grant any rightsto any other persons
or entities.
2 Characterof Easement. The Easement granted i n this Agreement is expressly
for the benefit of NCPAto use as a roadwayfor accessto, or buffer adjacentto the Lodi
Energy Center Projectlocated on the Property. The Property is thus the dominant
estate and the Land upon which the Easement is located is the servient estate. The
Easementcreated by this Agreement is appurtenantto the Propertythat is the dominant
estate to which it relates, shall runwith the land and may not be transferred, assigned or
encumbered except as an appurtenance to the dominant estate.
3. Easement Runswith the Land/Successors and Assians. Each covenant
contained in this Agreement (a) constitutes a covenant runningwith the Land; (b) binds
successors in interestof each Party, and (c)will inureto the benefitof each Party's
successors in interest. Any person or entity accepting a deed or other instrument
conveying, granting, leasing or assigning any property affected or benefitted by this
Agreement or any portionthereof or interestthereinwill take title subjectto this
Agreement, and such personwill be deemed to have assumed all of the applicable
obligations imposed in this Agreement with regardto such property regardlessof
whether this Agreement is mentioned in the deed, lease or other instrument. Whenever
a reference in this Agreement is made to the City or NCPA, the referencewill be
deemed to also mean referenceto the successors in interestof each Party, or the
Parties, as applicable, as if in every case so expressed.
c-2
4. Term of Easement. This Agreement will remain in full force and effect
concurrentlywith the term of the Amended and Restated Ground Lease and any
extensionsthereto.
5. Rent. The rentfor the easementwill be $1.00 peryear and will be paid in
advance on or before July 18' of each year.
6. Maintenance of the Easement. NCPAwill, at its sole cost, maintainthe
Easementin a safe condition as appropriateforthe useto which NCPAwill putthe
Easement. Inthe event NCPAinstallsa roadway, itwill befor the sole useof NCPA
andwill not be madea publicroadway. NCPAwill not be requiredto install curbs,
gutters or sidewalks, or paint any markingson the road. The road will not be available
for access or use by the general public. The City will, at its sole cost, maintainthe berm
adjacentto the roadway.
7. No Barriers. The Partiesagree that absentthe written consent of the Partiesand
with the exceptionof the berm, nowall, fence, or barrierof any kindwhich impairsor
impedes access to, or use of, the Easementwill be constructedor maintainedon or
adjacentto the Easement, norwill the Partiesdo anything that will prevent, impair or
discouragethe use or exercise of the entire Easementor the free access and
movementacross the Easementarea.
8. Indemnification. NCPAwill indemnify, defend, protectand hold harmless,the
City, its elected and appointed officials, employees, and agentsfrom and againstall
claims, demands, liabilities,judgments, losses, costs and expenses arising out of or
relatedto NCPAs or its agents, employee's or invitee's use and maintenanced the
Easement. The Citywill indemnify, defend, protectand hold harmless, NCPA, its
elected and appointed officials, employees,and agentsfrom and against all claims,
demands, liabilities,judgments, losses, costs and expenses arising out of or relatedto
the City's or its agent's, employee's or invitee's use of the Easementand maintenance
of the berm.
9. Insurance. At all times during the term of this Agreement, NCPA shall include
the Easement in the insurance it is obligatedto maintain on the Property underthe
Amended and RestatedGround Lease.
c-3
10. Default/Remedies. An "Eventof Default" underth is Agreement occurs if either
Partyfails to complywith any of the covenants or obligations in this Agreement or fails
to commenceto curewith reasonablediligencesuch failure within ten (10) days after
receiptof written noticefrom the other Partyof the default. Uponthe occurrenceof an
Eventof Default underthis Agreement, the aggrieved Party may pursue all remediesat
law or in equity, includingwithout limitation,the remedy of specific perFormanceof this
Agreement.
11. Dispute Resolution
11.1 Mediation. The Partiesagreeto first submit any dispute arising out of or in
connectionwith this Agreementto a mutually acceptable professional mediatorand to
negotiate in good faith toward reaching an agreementwith respectto the dispute. In
such event, neither Party may proceedwith arbitration until the completion of mediation,
the mediation being an express condition precedentto further remedies. The Parties
may, however, agree inwriting to proceeddirectlyto arbitration. Each Partywill pay an
equal share of the costs of retainingthe professional mediator butwill bear its own
costs, including, but not limitedto its own attorneys'fees associatedwith participating in
any mediation.
11.2 Binding arbitration. Shouldthe Partiesbe unableor unwillingto resolve
their dispute through the mediation process provided in Section 11.1 above, either Party
may give written noticeto the other Party and elect to have the matter resolved byfinal
and binding arbitration in accordancewith the rules and procedures of the arbitrator
selected in accordancewith this Section 11.2. The Party seeking arbitration shall set
forth in its noticethe particularsof its claims and shall statewith specificitythe issue(s)
to be submitted to arbitration and the relief sought. Within thirty (30) days of the date of
the electionto arbitrate,the partiesshall selecta single, mutually agreeable arbitrator.
Ifthe Partiesare unableto agree, they shall requestthat the Judicial Arbitration and
Mediation Service, Inc. ("JAMS) if such entity is then in existence, appoint an arbitrator
in accordancewith then current procedures. The arbitrator must be a retiredjudge of
the Superior Court of Californiaorthe Court of Appeal of California, or a retiredjudge of
the United States District Court sitting in California. If JAMS is not inexistence, the
c-4
PresidingJudge of the San Joaquin Superior Courtwill appoint an arbitrator in
accordancewith itsthen current procedures.
11.2.2The rules and proced u resfor arbitration shall be as follows:
11.2.2.1 The arbitrator must be selected and arbitration must be
conductedwithin a reasonabletime, but in no event laterthan ninety (90) days afterthe
date upon which the demand for arbitration is filed.
11.2.2.2 The arbitration proceedingsmust be conducted in San
Joaquin County, California, at a time and locationas agreed to inwriting by the Parties,
or in absence of an agreement, as designated by the arbitrator.
11.2.2.3 Subjectto the same rules pertainingto privileged
communicationsand attorneywork productthat would apply ifthe proceeding was filed
in the courts of the State of California,the arbitratorshall havethe authorityto makeall
decisions regardingthe relevance, materiality, and admissibilityof all evidence offered
at the arbitration. The California Evidence Code shall generally guide the arbitrator in
making such decisions.
11.2.2.4 The arbitrator may issue any remedy or relief, whether
provisionalor permanent, including but not limitedto a defaultjudgment, which the
Parties could have obtained underthe law applicable in courts of the State of California
underthe same factual circumstances, and the arbitrator mustfollow and otherwise
employthe standardsfor issuing such relief as defined by California law; provided,
however,that the arbitratorwill have no authority orjurisdiction to enter an award, order,
or decisionfor consequential, special, exemplary or punitive damages. The arbitrator
mayalso grant such ancillary reliefas is necessaryto make effective the award, order,
or decision, includingthe issuanceof declaratory relief, compellingspecific
performance, or any other relief or action permitted by California law.
11.2.2.5 Both Parties may conduct discovery as if the matterwere
pending beforea Superior Court of the State of Californiaand the arbitratorwill havethe
full powerof the State of Californiato issue and enforce subpoenas and to award
sanctions. Either Partywill havethe rightto demand in writing that the other Party
provide list of witnesses it intendsto call at the hearing, designatingwhich witnesses
will be called as expertwitnesses, and a listof documents it intendsto introduceat
c-5
hearing. The responding Party's list(s) must be served personallyor by registered or
certified mail on the requesting Party, with a copy to the Arbitrator, at leastthirty (30)
days beforethe hearing.
112.2.6 Each Party may be represented by counsel.
11.2.2.7 No laterthan sixty (60) days following closing of the
arbitration hearing, the arbitratorwill make an award, order, or decision and issue a
written opinion consisting of findings of fact and conclusionsof law and setting forth the
bases of the award, order, or decision. The arbitrator may include in his or her award,
order, or decision pre -award interestand post -award interestat the legal rate where
authorized by law. The Party againstwhom the award, order, or decision is made or
remedy or relief orderedwill havethirty (30) days after receiptof the award, order, or
decisionto commence and thereafter diligently pursueto completionany action or
proceeding in any court of the State of California of appropriatejurisdiction located in
the County of San Joaquin to obtainjudicial review of the award, order, or decision. If
the award, order, or decision is mailed, itwill be deemed to be receivedwithin five (5)
days after deposit in the mail.
11.2.2.8 If no such action or proceeding is timely commenced, the
award, order, or decision will thereupon immediately becomefinal. The Party against
whom the award, order, or decision is madeor remedy or relief ordered shall within
thirty (30) days afterthe award, order, or decision becomesfinal makefull payment
and/or commence and thereafter diligently pursueto completion any other action
required by the award, order, or decision. The Party in whose favor the award, order, or
decision is made may requestand obtain from any courtof the State of California of
appropriatejurisdiction located in the County of San Joaquin a Judgment upon the
award, order, or decision rendered by the arbitrator, which maythereafter be entered in
the recordsof said court.
11.2.2.9 If an action or proceeding is timely filed in any court of the
State of Californiaof appropriatejurisdiction located in the County of San Joaquin to
obtainjudicial review of the award, order, or decision, the Partieswill have the rightto
seek vacation or mod ificationof any portion of the award, order, or decision according
to the grounds provided by California law at the time for the vacation or modificationof
C-6
an award, order, or decision in a nonjudicial arbitration. The findings of fact of the
arbitratorwill be binding on all Parties and shall not be subjectto further review except
as allowed by the appeal provisionsof this Section 11.2.2.9.
11.2.2.10 The arbitratorwi I I be paid a per diem or hourly charge as
established at the time of appointment. Each PartywiII bear its own attorneys' fees and
costs in presenting its case. All other actual costs of conducting the arbitration, .
includingwithout limitationthe administrativefee and the arbitrator's compensation, will
be shared equally.
11.2.2.11 This arbitration clause shall be interpreted under the
arbitration laws of the State of Californiaand notthe Federal Arbitration Act, 9 U.S.C.
§ 1. Exceptas otherwise provided in this Agreement, any motion, application, complaint
or proceeding arising out of or relatingto this arbitration clause shall be determined in
accordancewith the law of the State of California.
11.2.2.12 Unlessotherwise provided in this Agreement or otherwise
agreed in writing, the Partiesshall continueto performtheir respectiveobligations under
this Agreement during the pendencyof arbitration proceedings.
11.2.2.13 Except as modified or stated to the contrary in this Section
11, the rules and proceduresof the Arbitrator in effect at the time of the arbitrationwill
apply to the arbitration procedure.
12. Memorandumof Agreement. Concurrentlywith the execution of this Agreement,
the Partiesshall execute MemorandumofAgreement substantially in the form of
Exhibit C hereto. NCPA shall cause such MemorandumofAgreement to be recorded
againstthe Property in the County of San Joaquin Recorder's Office within three (3)
businessdays after the executionthereof. The Partiesagreeto record a reconveyance
of the Easement upon termination of the Amended and Restated Ground Lease.
13. Miscellaneous.
13.1 Pavments and Notices. Any notice to be given or other document to be
delivered by either Partyto the other Party may be given by personal delivery or may be
deposited in the United States mail in the State of California, duly registeredor certified,
with postage prepaid, and addressedto the Partyfor whom intendedas follows, or it
c-7
may be sent via facsimile and will be duly given upon receiptof successful transmission
to the following facsimile numbers:
To City: City of Lodi
Attn: City Manager
221 West Pine Street
Lodi, CA 95240
Facsimile: 209-333-6807
To NCPA: Northern California PowerAgency
Attn: Assistant General Manager
Generation Services
651 Commerce Drive
Roseville, CA 95678
Facsimile: 916-783-7693
Either Party mayfrom time to time by written noticeto the other Party designate
a different addresswhich shall be substitutedfor the one specified above. Ifany notice
or other document is sent by registeredor certified mail, as providedabove, the same
shall be deemed served or delivered seventy-two (72) hoursafterthe mailingthereof.
13.2 Waiver. No waiver of any breach of any of the terms, covenants,
agreements, restrictionsor conditions in this Agreement shall be construed as awaiver
of any succeeding breach of the same or other covenants, agreements, restrictionsand
conditions hereof. No delay or omission of either Partyto exercise any right or remedy
shall be construed as a waiver of any such right or remedy or of any default underthis.
Agreement.
13.3 Holding Over. If NCPA holds over the Leased Premises (as that term is
defined in the Amended and Restated Ground Lease) afterthe expiration of the term of
the Amended and Restated Ground Leasewith the consent of City, either express or
implied, this Agreement shall likewise remain in full force and effect for as long as the
Amended and Restated Ground Lease remains infulI force and effect, subject to all the
covenants, conditionsand obligations in this Agreement.
13.4 Relationship of Parties. h is expressly understoodand agreed that merely
as a result of this Agreement, the City does not in any way norfor any purpose become
a partnerof NCPAor ajoint venture with NCPA in the conduct of NCPA's business or
otherwise, except as provided by the Phase 2 and Phase 3 combustion turbine project
number2 agreements or the LEC agreements or any similar agreement.
13.5 Severability. If any term, provision, covenantor condition contained in this
Agreement is held by a court of competentjurisdictionto be invalid, void or
unenforceable,the remainderof this Agreementwill continue in full force and effect
unlessthe rights and obligations of the Parties are materially altered or abridged by
such invalidation,voiding or unenforceability.
13.6 Attornevs' Fees. In any action at law or inequity, arbitration or other
proceeding arising in connectionwith this Agreement, the prevailing party shall recover
attorneys'fees and othercosts, including but not limitedto court costs and expert and
consultants'fees incurred in connectionwith such action in additionto any other relief
awarded, and such attorneys'fees and costs shall be included in anyjudgment in such
action.
13.7 Time of the Essence. Time is expressly declared to be of the essence in
this Agreement.
13.8 Number and Gender. Whenever the singular number is used in this
Agreement and when required by the context, the same shall includethe plural, and the
masculine gender includesthe feminine and neuter genders, and the word "person"
includes corporation, firm, entity or association.
13.9 Headings and Titles. The marginal headings or titles to the sections of
this Agreement are not apart of this Agreement and have no effect upon the
construction or interpretationof any part of this Agreement.
13.10 EntireAgreement. This Agreement and the Exhibits hereto contain the
entire agreement betweenthe Partieswith respectto the matterscovered hereunder,
and no other previous agreement, statementor promise made by any Party hereto
which is not contained in thisAgreement shall be binding or valid.
13.11 Force Maieure. Exceptas to the paymentof rent, neither of the Parties
hereto shall be chargeablewith, liablefor, or responsibleto, the other for anything or in
any amountfor any delay caused by fire, earthquake, explosion, flood, hurricane, the
elements, acts of God, or the publicenemy, action or interferenceof governmental
authorities or agents, war, invasion, insurrection, rebellion, riots, strikes, or lockouts or
any other cause whether similar or dissimilarto the foregoing, which is beyondthe
C-9
control of the Parties and any delay due to said causes or any of them shall not be
deemed a breach of or default in the performancesofthis Agreement.
13.12 Termination. NCPA may terminate this Agreement at any time upon six
(6) months advance notice, but in all cases, the Easementgranted in this Agreement
will terminate concurrentlywith the termination of the Amended and Restated Ground
Lease.
13.13 Counterparts. This Agreement maybe executed in counterparts each of
which is deemed an original, and all such counterparts constitute one and the same
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
C MY OF LODI, a municipal corporation
Blair King, City Manager
Date:
ATTEST:
RandiJohn, J.D., City Clerk
APPROVED AS TO FORM:
C-10
NCPA:
NORTHERN CALIFORNIA POWER
AGENCY
James H. Pope, General Manager
Date:
ATTEST
Denise Dow,Assistant Secretary
APPROVED AS TO FORM:
D. Stephen Schwabauer, Michael F. Dean,
CityAttomey General Counsel
STATE OF CALIFORNIA )
) ss
COUNTY OF
On , beforeme,
,a Notary
Public, personally appeared , who provedto me
on the basis of satisfactory evidence to bethe person(s) whose name(s) is/are
subscribedto the within instrument,and acknowledgedto me that he/she/they executed
the same in hislherltheirauthorizedcapacity(les), and that by hislherltheirsignature(s)
on the instrumentthe person(s), or the entity upon behalf of which the person(s) acted,
executedthe instrument.
certify under PENALTY OF PERJURY underthe laws of the State of Californiathat the
foregoing paragraphistrue and correct.
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA
) ss
COUNTY OF
On , before me, . , a Notary
Public, personally appeared
,who provedto me
on the basis of satisfactory evidence to be the person(s) whose name(s) islare
subscribed to the within instrument, and acknowledgedto me that he/shelthey executed
the same in hislherltheir authorized capacity(ies), and that by hislherltheirsignature(s)
on the instrumenttheperson(s), or the entity upon behalf of which the person(s) acted,
executedthe instrument.
I certify under PENALTY OF PERJURY underthe laws of the State of Californiathat the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
EXHIBIT LIST
ExhibitA
Map cf the Property
ExhibitB
Legal Description
ExhibitC
Memorandumcf Easement
EXHI BITC
Rgad=U and YncWmital Purnttges Easement
All:tltatrcal ptvperty ar2unUsd.hi-tltaSoutlnrest
one, -quarter of Section 24.Vo%r hip3 Worth,
)Rango SSosx MDAf , CwawW of S.emas follows:
ApartfonatttNaceortafn pac�xtdeserklfc$jnB,00&t7p,."�'..#Anga 463OpJieiatitemrels 41adaC tltc
OAtca of ehalt�eot+Ccr bfSwuaX*9gw* Cbuhtig, mora ptlYpcalaMy.a strip ofland 26.00 featbt
vddtlit we sedc8amtoEtrlifCh sbWl1xo.ahoN:enc¢oX mtteada N-te!'�natc respeettvolYatthe
Sonfla.linte o@asld Section 24 cad ZDAO feet moasurod' at a right ataElafrom-tl.e axtMorlitu: ofa
:lavoe, the Wast ltae mcwhloh is described as follows:.
B$0004hgG AT A PDXWT on the South Ibta of said Seedon 24 "ar which the Southwest
aaeuor ots'Atd Soadoa24 boats North 89^20'43 West 898:23 fe*L Thane from said Potataf
Baglt f gNbrItZOP19'3S'West798.18fao"ttoupofmcused—htg20.00fo-e6saRghtauO",to'
the cunttprttao of_thoSouth y,rae of the VVititoSloaZliLNVntcr Polhtti= Control PlantSidmadag
1 ands.
C4utatnin9bS A=" (Z0XW Sq. BW
Thy logxl dweription S basad on rewrd beadnec anddimaom aboviu.oil the Record of
9arrey. f1lad at Book.32 Saga 175sndth.Sah Jaat'itiigClftuO.yYCagwtd6P a Ol13ac.
- 7 -tel �zoo9
1' 1#--100.
Eas ement Exhibit C
% N -669#40125" FE
or
FENCE
v
Im
5 124,
'Lime T
0
WT .2
N 89'.20'45- W 83023' N--4219*97-l9:
E=5305702.5'8 �=6�06780.42
near —q
Recording Requested by
and when Recorded, return to:
Northern California PowerAgency
Attn: Assistant General Manager
651 Commerce Drive
Roseville, CA 95678
EXEMPTFROM RECORDINGFEES PER GOVERNMENTCODE
§§6103,27383
�U*
MEMORANDUMOF EASEMENT
This Memorandumof Easement (this "Memorandum")dated as of
,2009, is made by and betweenthe City of Lodi, a municipal
corporation ("City" )and the Northern California PowerAgency, a Californiajoint powers
agency ("NCPA). The City and NCPA are jointly referredto as the "Parties."
Pursuantto an EasementAgreement by and between the City and NCPA (the
"EasementAgreement"), the City has granted to NCPA an easement, on the terms
and conditionssetforth in the EasementAgreementon real property located inthe City
of Lodi, San Joaquin County, Californiaand more particularlydescribed in Attachment 1
attached heretoand incorporated herein (the"EasementArea"). NCPAs useofthe
EasementArea shall be exclusive, with the exceptionof the City's rightto usethe
EasementArea for maintenance,constructionor reconstructionof the berm shown on
Attachment attached hereto and incorporatedherein.
This Memorandumincorporatesallof the terms and provisionsof the Easement
Agreement as though fully setforth herein. The term of the EasementAgreement runs
concurrentlywith the term of the Amended and Restated Ground Lease on the
dominant estate.
This Memorandumis solely for recording purposesand shall not be construed to
alter, modify, amend or supplementthe EasementAgreement. In the event of any
inconsistency between this Memorandumandthe EasementAgreement, the Easement
Agreement shall control.
This Memorandumand the EasementAgreement shall bind and inure to the
benefitof the Partiesand their respective heirs, successorsand assigns.
IN WITNESS WHEREOF, the Parties have executed this Memorandumas of the date
first written above.
r.1 : NCPA:
CITY OF LODI, a municipal NORTHERN CALIFORNIAPOWER
corporation AGENCY
Blair King, City Manager
Date:
ATTACHMENT LIST
Attachment 1 Map of Property
Attachment 2 Legal Description
James H. Pope, General Manager
Date:
EXHIBIT C
Roadway and Yncidtsntal PurmsesRusement
A11•thxtYAa�.prajtarly suuatod la•llteS9usawo86 ano•gnareor o!S'eetton2R,Towushtp 3'fiortb,
Ytungeg'$ast, bCDM, t o'tveq�o'fssm•7'o>tyutapSxatootCsHtbrnla•deacribad as YoDa%VX:
Aporlio7t oft Wgdostatn parent:doseribadYiu nook WlXkaga 4.63.00AetatiCeaards tnadnetho
Oftlsacttlta2€xoNar bfS'anafoXquhi Cotmty, mato partkPlarV &strip aflbn4 2MO foot in
w#liL. dna Ndallayc•ofpldch gbol{ Gn.rhae�arie3.ar axttcntYe{t W tSSCmdaatt a�mryeetivofy ot dw
$QLLHY. tlno af'AaEti Satt4on.24 oud Zb.00 •P.ogt ineaeutrod nt a right angin•Yrobt•eke eotttertistn of a
'force, the Were UneafW.ldah is d@aeribad ar to1 W�wst
aF-cRT4NftJG AT A pokrT on the South thm otsald Section 24 ftrone ;Woh the Soutb.vest
corner aftmW Section 24 boaWr4orth S8°20•43- West 836,23 faaL Theftee flwiMsatd Vohttof
}teg[nrJngl�Skttu'20^39.33" 9Vost7ya.18toEotO apolntmaacvrin¢20.00 foey ac eightangtec.ta
theaotttePtino of. th4.snut Owmaorthe Vl++WWSIonglt.Wuter SonnQevConirol MantSkbuu ing
Ybnds.
Ceritaiains:4-'S Acral (2d;Sffi5 Sw 00
This loge! desomfpdon is bosod on roomy boed qs• =d dlstuams rho -,vu. an the Record of
S..—V UW atDook-= PAIP S73•.vtthSab. Sonyata Coauty.'t%ot�arrsOYQae.
STATE OF CALIFORNIA
) ss
COUNTY OF
On , before me,
, a Notary
Public, personallyappeared ,who provedto me
on the basis of satisfactoryevidenceto bethe person(s) whose name(s) is/are
subscribedto the within instrument, and acknowledgedto me that he/she/they executed
the same in his/her/their authorizedcapacity(ies), and that byhis/her/their signature(s)
on the i nstru mentthe person (s), or the entity upon behalfof which the person(s) acted,
executedthe instrument.
I certify under PENALTY OF PERJURY underthe laws of the State of Californiathat the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA J
ss
COUNTY OF )
On , before me,
Public, personallyappeared
, a Notary
,who proved to me
on the basis of satisfactory evidence to bethe persons) whose name(s) is/are
subscribedto the within instrument, and acknowledged to me that he/she/they executed
the same in his/her/their authorizedcapacity(ies), and that by his/her/their signature(s)
on the instrumentthe person(s), or the entity upon behalf of which the person(s) acted,
executedthe instrument.
I certify underPENALTYOF PERJURYunderthe lawsof the Stateof Californiathatthe
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
1298448.2
Fi_1v�Jt) NU.
_ _ r•i5H 2 � tiG .p 1N15 x� ,
=nornv ['ontor lar
Nominal Project
Participants Percentai
Capacity (MW)
:..........
2.7857%
7.80
....:...........
.217.50
.2
6500%
yy;{?
It 0.2679%
0.75
.7
33 .3332%
/o°
93.33
',mss'Y
1. 4
1. Y 96 3 /o
5.50
O
1. 714
�Ha 5 /o
4.4 0
1/o
..t 9.3561%
26.20
.u- Y
-o 2.0000% /o 0
5.60
x::•iL: { fi
F '
10.7143% 0 3
/o
30.00
Y..
4 Y-;sr4ti 0
P.I :.. 0.785 7 /o
2.2 o
_ _
`fc Y �v :sS
vY'. x
•r .., �f zj x
0
1
1.60 7/o
3 .2 5
�6
.`yrs H f.
��x:z
2.6679%�
7.47
•F�
:ytx-� '.Ttit
0
2535 71 /o
71.00
Ukiah 1.7857%
5.00
Total
100.0000% 280.00
sl
EXHIBITA
ENVIRONMENTAL FINDINGS
The City of Lodi (Participant), as a Participant in the Lodi Energy Center (Project), makes the
following findings pursuant to the California Environmental Quality Act ("CEQA"), Public
Resources Code section 21000et seq., and the Guidelines implementing CEQA ("CEQA
Guidelines") Code of Regulations, title 14, section 15000 et seq.
1. The California Energy Commission ("CEC") is the lead agency for this Project under
CEQA.
2. The CEC is a certified regulatory agency pursuant to CEQA section 21080.5 and CEQA
Guidelines sections 15250— 15253.
3. As a certified regulatory agency, rather than an Environmental Impact Report ("EIR"),
the CEC prepares an "EIR substitute" as the CEQA documentation for the Project.
4. The CEC's EIR substitute for this Project is the Presiding Member's Proposed Decision
("PMPD")released on March 10,20 10, as supplemented by the "Erratato the Presiding
Member'sProposed Decision" dated April 20,20 10, and approved by the CEC on April
21, 2010 without further substantive change.
5. Participant is a responsible agency for the Project under CEQA.
6. Participant finds that the CEC's process meet all of the conditions of CEQA Guidelines
section 15253 that would allow Participant to use and rely upon the CEC findings.
Specifically, Participant finds that:
a. The CEC is the first to grant a discretionary approval for the Project.
b. The CEC provided Participant the opportunity to consult with the CEC and to
comment on the PMPD.
c. The PMPD considers both the significant environmental impacts of the Project
that are within the jurisdiction of the Participant, if any, and considers
alternativesto the Project.
d. The CEC exercised its powers as lead agency by considering all of the
environmental impacts of the Project and made the appropriate findings pursuant
to CEQA Guidelines section 15091 for each significant impact of the Project.
7. Participant has considered the PMPD and the environmental impacts of the Project
described in the PMPD, pursuant to CEQA Guidelines 15096 subdivision (f).
8. The PMPD concludes that, as conditioned, the Project will not have any significant
adverse effects on the environment. Thus, pursuant to CEQA Guidelines 15096
subdivision (g), Participant finds that there are no alternatives or mitigation measures
within the powers of Participant to adopt that would substantially reduce or avoid any
significant environmental impact of the Project.
9. Pursuant to CEQA Guidelines 15096 subdivision (h), Participant is required to make
findings pursuant to CEQA Guidelines section 15091 for each significant impact of the
Project. Participant has considered the PMPD, the description of the Project's
environmental impacts contained therein, the findings of fact and conclusions of law
contained therein, and the conditions of certification contained therein, and, exercising its
independentjudgment, Participant finds the following:
a. For all environmental impacts of the Project, changes or alterations have been
required in, or incorporated into, the Project which will avoid or substantially
lessen the significant environmental effects as identified in the PMPD.
b. These findings are supported by substantial evidence in the record.
c. The conditions of certification imposed on the Project by the CEC are within the
authority of the CEC and will be monitored and enforced by the CEC.
10. That approval of both the Power Sales Agreement and Proj ect Management and
Operation Agreement, providing for the financing, construction and operation of the
Project has no impacts on the environment not addressed within the prior CEC analysis.
i °''>� BEFORETHE ENERGY RESOURCES CONSERVATIONAND DEVELOPMENT
J COMMISSION OF THE STATE OF CALIFORNIA
i 1516 NINTH STREET, SACRAMENTO, CA 95814
1-800-822-6228— WWW.ENERGY.CA.GOV
APPLICATION FOR CERTWATM FOR THE
LODI ENERGY CENTER DOCKET No. 08 -AFC -10
NORTHERN CALIFORNIA POWERAGENCY
ERRATATO THE PRESIDING MEMBER'S PROPOSED DECISION
After reviewing the comments submitted by the parties on April 12, 2010, we
incorporate the following changes to the March 10, 2010 Presiding Member's Proposed
Decision (PMPD):
INTRODUCTION
1 • Page 2, Second Paragraph, change as follows:
... A new, approximately 1100 foot 230 -kV line will be constructed to transmit
the plant output to the electrical grid via the existing 230 -kV switchyard adjacent
to the existing plant. Additionally, a new,2.7 mile -long gas ...
PROJECT DESCRIPTION
2. Page 7, Last Full Paragraph, First Sentence, change to read:
"Construction costs are estimated to be between $275 and 375 million.
3. Page 8, Section 3. Power Plant Equipment and Linear Facilities, First
Sentence, change to read:
"One natural gas -friedag s -fired SiemensSTGS-5000F combustion turbine -
generator (CTG), ...
4. Page 8, Section 5. Natural Gas Supply, change to read:
In March 2009. the Applicant submitted Surmlement C to reflectthat natural
Natur-aa-gas will be delivered to the projectthrough a new off-site pipeline about
2.7 miles long running parallel to the 3 -mile existing natural gas pipeline (#108)
owned by Pacific Gas and Electricwhich services the existing STIG plant
adjacent to the LEC project site. (Ex. 30) . .
5. Page 9, Section 6. Water Supply, First Paragraph, first sentence, change to
read as follows:
Deleted: 520 -foot
Formatted: Font: Not Bold
Deleted: 2.5
The recycled water will be provided by a new pipeline that will be located
immediately adiacent to the existing pipeline servinq the STIG.
6. Page 9, Section 7. WastewaterDischarge, delete third sentence:
7. Page 10, Finding of Fact 2. change to read as follows:
The projectwill have a nominal Flame date capacity rating of 296MW.
8. Footnote 2 should also be changed to reflect the same:
"296 MW is the Flame plate er rated nominal capacity of the project,..."]
9. Page 10, Findings of Fact 3. change to read as follows:
The project involves construction of anew , approximately 1100
feet in length, transmission/qeneration tie -line to the existing 230 W switchyard
substation adjacentto the plant
PROJECTAI ERNAI
10. Page 14, Alternatives Table 1, modify as follows:
LEC Column: Electrical =.approximately 1100 feet.
11. Page 15, Footnote 1 to Alternatives Table 1, replace with the following
sentence:
The recycled water will be provided by a new pipeline that will be located
immediately adiacent to the existing pipeline serving the STIG.
12. Page 17, First Paragraph, change firsttwo sentences to read as follows:
To minimize NOx emissions, the LEC combustion turbine generators will be
equipped with dry low NOx combustors and selective
catalytic reduction using anhydrous ammonia as the reducing agent. (Ex. 1, p. 6-
18). Howeverthe Applicant considered the following combustion turbine NOx
control alternatives: steam injection and water iniection dry lew NQx
ser ste%.°
FACILITY DESIGN
2
Deleted: Recycled water will be
usedfor cooling needsfor the LEC
projectand will be provided by a 48-
diameter
&diameter pipeline in the utility corridor
connecting the LEC and city of Lodes
WPCF
Deleted: The remainingsmall
portion will be captured in
underground storage tanks and
disposed of appropriately
Deleted: 520 feet
Formatted: Font: Not Bold
13. Pages 45-46, Facility Design Table /:
Second row, CT Enclosure Structure,... the Quantity should be 1
Page 46, fifth row:
Pre/Raw should be changed to Service
Delete thirteenth row (Warehouse Structure). Not Dart of Proiect
Deletefifteenth row, (Control Room Structure). Not Dart of project
Eighteenth row, delete the parenthetical entry after Drainage Systems
Twentieth row, delete the parenthetical entry after Temperature Control and
Ventilation Systems (4-iGW4H4g-wa+� R4 sev - cc, ec+ )
POWER PLANT RELIABILITY
14. Page 65, Section 2. Plant Maintainability, Third Bullet, change as follows:
• Two 100 percent capacity condensate pumps;
TRANSMISSION SYSTEM ENGINEERING
15. Page 70, Section 1. Switching Station Upgrades. Last paragraph, second
sentence, change to read.
Deleted: Three 50
...line would approximately be approximately 1100 feet and would be supported Deleted: 520 feet
by monopole, .. .
16. Page 77, Condition of Certification TSE -5, change to read as follows:
A. The LEC project will be interconnected to the NCPA Lodi Switching
Station via a single 230 kV transmission line, approximatelyapproximately Deleted: 520feetlong 1
1100 feet, with 1272 kcmil ACSR, Bittern conductor or conductor with a
higher rating.
TRANSMISSION LINE SAFETY AND NUISANCE
17. Page 81, Summary and Discussion of Evidence, First Sentence, change to
read as follows:
The LEC Project includes building and operating a new on-site, approximately Deleted: 500 -foot long
1100 feet 230 -kV overhead transmission line.
18. Page 81, Summary and Discussion of Evidence, Aviation Safety, last
paragraph, change to read as follows:
3
...The evidence further shows, however, that the 73- -foot height of the line's
support structures is well below the 200 -foot height threshold of concern for the
FAA.
19. Page 84, Findings of Fact 1, change to read as follows:
The Lodi Energy Center Project includes the construction and operation of a new
on-site 230 -kV switchyard and an on-site, approximately 1100 feet long overhead
230 -kV transmission line.
AIR QUALITY
20. Page 102, fourth line underAir Quality Table 3
,should be changed to 200.8 MW
21. Page 118, Findings of Fact 3
,should be changed to 200.8 MW
HAZAI 4l MANAGEMEI
22. Pages 187 and 188, Hazardous `i chment A
In the Row for : under the Application column, change entire entry to
now read ge I or r is I and under Maximum Quantity on Site
column, t 20,000 to 1000 cubic feet;
In the Row for Oxvuen, add cycle water treatment after Welding gas in the
Application column;
In the Row for Sodium Hydroxide, change the Maximum Quantity on Site column
entry offo 40 gallons;
In the Row forAuueous Ammonia, underthe column Application, PA GeRtrel
should be changedto pH control and f a„pRable should be changed to
flammability in the last line of the Hazardous Characteristics column.
BIOLOGY
23. Page 213, firstparagraph and Page 228, BIO -11:
Change all referencesto $46-,-342--.68 to $16,343.28.
Deleted: 500 -foot
Deleted: 185 MW
,Deleted: 185 MW
Formatted: Font: Not Bold, Font
color: Red
Deleted: 10 gallons
24. Page 213, second paragraph, second sentence, change to read:
White-tailed kite is a California Fully Protected species that is a yearlong resident
of the Central Valley, coastal range, and foothills. A white-tailed kite nest was The evidence indicates that
observed on the side of Lavdown Area D of the LEC Proiect site during a surve [Deleted:
heare norecords of the presence
y dwite-tailedkitewithinafive-mile
conducted on April 30. 2008. The parties agree and we find .... dis of the project.
4
Page 217, second sentence under LORS Compliance, change to read.
NCPAwi4 has participated in the SJMSCP for the oR*e life of the LEC Project.
25. Page 215, Section 4. Operational Impacts and Mitigation, last paragraph:
The LEC project includes a 150-footexhaust stack, a 105 -foot heat recovery
steam generator, one turning pole no more than 73 feet tall, and two five73-foot
monopole support towers. The transmission tower structureswill support &2-8
approximately 1100 feet of new transmission lines that will tie the plantto the
existing STIG power plant's 230 -kV switchyard.
26. Page 217, 6. LORS Compliance, second sentence, change to read:
NCPA, has participated in the SJMSCPfor the,LEC Project.
27. Page 227, BIO -9
Change $27,161.06 to $27,162.07
SOIL AND WATER
28. Page 237, 4. Wastewater, change to read as follows:
The evidence indicates that the projectwill discharge up to 2254-39 gpm of
nonhazardous process wastewater to an on-site Class I injection well. Presently,
NCPA owns and operates a Class I injection well for wastewater injection at the
STIG facility. NCPA has submitted a ^� ^r received an Underground Injection
Control (UIC) permit a ica ,aR4o fromthe USEPA Region IX for the combined
STIG-LEC facility. Ex. 15. The receipt of the permit was based on the
application submitted by NCPA (Exhibit 43) which contains the initial .... (Ex.
300, p. 4.9-6.)
Seond paragraph, change maximum rate as follows:
injection at a maximum rate of 225 499 gpm....
CULTURAL RESOURCES
29. Page 261, CUL -2, Verification, first sentence:
At least 40 days prior to the start of ground disturbance, the projectowner shall
provide copies of the AFC, data responses, confidential cultural resources
documents, all supplements, and the Energy Commission SA to the CRS (if
needed) and copies of the subject maps and drawings to the PG-, CRS; and CPM
5
[Formatted: Indent: Left 0" J
[Deleted. will
Deleted: entire lie of the
[Formatted: Indent: Hanging: 0.75"
GEOLOGY AND PALEONTOLOGY
30. Page 275, PAL -4, first sentence, change to read as follows:
If after review of the plans provided pursuant to PAL -2, the PRS determines that
materialswith moderate or hid -paleontological sensitivity could
be....
31. Page 276, PAL -4 Verification, first sentence, change to read:
Not more than 5 days after implementation. . ..
LAND USE
32. Page 287, Section /. The Site, first sentence, change as follows:
The 4.4 -acre LEC site and the 5.4-aEre9.8-acre temporarylaydown and parking
areas are located on land owned ...
NOISE AND VIBRATIOP
33. Page 312, second paragraph, change to read as follows:
New off-site linearfacilities include a 2.7 2 -.5 -mile -long natural gas pipeline. The
Applicant intendsto use aR exiGtiRa construct a new water supply pipeline from
the WPCF and use existing transmission lines .. .
VISUAL RESOURCES
34. Page 327, Section a. Construction Impacts, first sentence:
"Construction activitieswill occur over approximately 24 months"
35. Page 329, first paragraph, change to read:
Three transmission poles and the turnina pole and lines will be installed on the
east side cf the property. Two Five transmission poles and lines will be installed
on the north ... to GGG11RQ WateF sewer connections. A new gas pipeline,
which will extend beyond the project site, and recycled water Pipeline, will be
constructed below ground.
36. Pages 342, Section 2. Visible VaporPlumes, first two paragraphs, change
to read as follows:
The record indicates that the combustion turbine generators (CTGs) include a
pl ,mo abated cooling tower.. .
0
A visible plume frequency of 20 percent of seasonal (November through April)
daylight clear hours was used as a plume impact study threshold trigger... .
See Visible Plume Figure Table 1:
37. Page 343, insert the following paragraph after Visible Fume Table 1:
Subsequent to the preparation of this table. Applicant revised the turbine desiqn
to one that will not include duct firing. The evidence indicates that this new
turbine selection will not change the impact determination for the HRSG visible
plumes, as the impact remains less than significant due to low visible plume
frequency potential for the turbine/HRSG exhaust.
38. Page 344, Section 4. Cumulative Impacts and Mitigation, firstparagraph,
last sentence, change to read as follows:
According to the City of Lodi Public Works Department, the improvementsto the
White Slough WPCF; are scheduled to begin in 2010 and last between 18 tem
McRths, Will @GGe medate the iRGFe@sed water flew need—4 by the LEG.
39. Page 345, Findings of Fact 1, change to read.-
...
ead.... approximately27 to 24 months.
40. Page 345, Findings of Fact 9, change to read.-
The
ead.
The combustion turbine generators (CTGs) include a pie abated cooling tower
which.. .
41. Page 345, delete Findings of Fact 10.
Dated: April 20, 2010, at Sacramento, California.
KAREN DOUGLAS JEFFREY D. BYRON
Chairman and Presiding Member Commissionerand Associate Member
Lodi EnergyCenterAFC Committee Lodi Energy CenterAFC Committee
CALIFORNIA ENERGY COMMISSION
"PRESIDING MEMBER'S PROPOSED DECISION"
(407 PAGES)
PROVIDED ON THE CITY'S WEBPAGE
WWW.LODI.GOV
Lodi Energy Center
City Council Meeting May 5, 2010
= 3 t,: .
7�--�;-mmdw
Overview
• The Project
• CEQA
• Power Sales Agmt
• Prowl Mgmt & Ops Agmt
• Ground Lease
Water Supply Agmt
:Ltl 1-3
ri r ,j
_7
Lodi Energy Center
Statistics
Capacity: 280 MW (net)
Expected Energy Cost: $72 per MWh
Expected Capacity Factor: 80%
Expected Heat Rate: 6,824 Btu/kWh
Reductions in GHG: 28%
Will use White Slough treated sewage
effluent for cooling
All air quality and other permits are in place
Received CEC permit on April 21, 2010
K
O.. .. .. .... ..... ..... .. wnership
Northern California Power Agency
owns, constructs, operates, and
maintains
14 Participants:
10 NCPA Members, 4 non-members
NCPA financing for 13 Participants
Each Participant has its percentage
of costs/obligations and
benefits/outputs
M
Cost Summary
M
Development (Ph 1 & 2 & Eng'g)
I
$25
Equipment, materials &parts
$215
Labor &services
$82
Interconnection &fees
$26
Contingency
$27
Financing &reserves
$77
Cost/kWh Summary
I j
4.78 c/kWh gas (at $7/millionBtu)
1.55 c/kWh debt service
0.63 c/kWh O&M
0.26 c/kWh scheduling/CAISO/other
7.22 cents/kWh Total Cost
(with $7/millionBtu gas)
XI
PafticipantS
Generation
Entitlement
Nominal
MW
Azusa
2.7857%
7.80
BART
6.2500%
17.50
Biggs
0.2679%
0.75
CDWR
33.3332%
93.33
Gridley
1.9643%
5.50
Healdsburg
1.5714%
4.40
Lodi
9.3561%
26.20
Lompoc
2.0000%
5.60
Modesto ID
10.7143%
30.00
Plumas-Sierra
0.7857%
2.20
Port of Oakland
1.1607%
3.25
PWRPA
2.6679%
7.47
Silicon Valley Power
25.3571%
71.00
Ukiah
1.7857%
5.00
Total
100.0000%
280.00
Approval Schedule
CEC License
NCPA Commission Approval of
CEQA, PSA & PMOA
Participant Approvals
File NOD at County
Signed Copies of PSA to NCPA
"Power Island" Notice to Proceed
Financing Complete
Start Construction
Commercial Operation
April 21, 2010
April 22, 2010
April 21 -May 5, 2010
by May 6, 2010
May 15, 2010
June 15, 2010
June 22, 2010
July 1, 2010
June 1, 2012
CEQA Compliance
As lead agency, CEC found no significant
impact. Key findings:
Air Quality
• GHG will be reduced as a result of the plant
• Other emissions mitigated by purchasing reduction credits
Biological Resources
• Conservation easement of 21.2 acres needed to mitigate potential
impact to Giant Garter Snake and other animals
Social Economics
• Local benefit from project
Lodi must adopt findings as a
t1 rresponsible agency
a�
n
9
Power Sales Agreement
• NCPA agrees to sell, Lodi agrees to buy
its share of power
• Project Participant Committee governs
Voting rights by generation entitlement shares
• Step-up in case a participant defaults
r
Project Management &
Operation Aareement
• Tied closely to Power Sales Agreement
• Similar to NCPA's "Facilities Agreement"
(for operation of other NCPA plants)
• NCPA to manage, operate, and maintain
• Directs the approach to operating LEC:
fuel buying, maintenance, dispatching, etc
11
September MOU
Finalize agreements with NCPA
• Ground lease
• Agreement to supply recycled water
12
Conclusion
• Adopt CEQA findings
• Approve PSA and PMOA
• Approve Ground Lease and Water
Supply Agreements
13