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HomeMy WebLinkAboutAgenda Report - March 6, 1985 (79)Rk,PCIRTS OF M CTTV MWACIR discussion, R�� CSAR Following introduction of the matter by Staff _ Council, on w�th questions regarding the subject being posed and Reid second, adopted TRANSFER AND SAI,FS motion of Council � erTovin the transfer and sales P �'�US RE NCPA Resolution No. 85-39 approving en transfer of 1NSFER OF CITY OF agreements regardings °rthern °nterestCinithe CalAgency eras Project, and I1,'S INTE�'T the City of Redd' or and City Clerk to execute the documents IN CALAVERAS p�IECT authorized the May on behalf of the City. APPFOM . RES. NO. 85-39 Northern C®!i f ®rni® Power AgencY 180 Cirby Way, Roseville California 95678 �D08Sfit1�C HX!$ RbBA�EtAtN General Manager (916) 781-4202 February 26, 1985 TO: City Clerks FROM: Gail Sipple SUBJECT: Transfer and Sales Agreements Regarding the Calaveras Project Encloses: is a cover letter from Mudge Rose forwarding two agreements and reso- lutions to certain representatives of your city. For your information and use I am sending these documents to you since Mudge Rose is asking that Council/Board action be taken prior to March 21. Please note that not all cities have to approve both agreements. The title page of each agreement list the cities required to sign. Upon approval of the agreement(s), please forward a -i executed copy to me along with the resolution(s) approving such agreement(s). If you have any questions, please contact me or Jim Anderson of Mudge Rose. Yours truly; GA L SIPPLE xecutive Assistant cc: Mudge Pose Martin McDonough Paul Cavote Enc. } MUDGE ROSE GUTHRIE ALEXANDER Sc FERDON "ISO'NAIOEN LANE j NEW YORK, N.Y. Io036 ' 212-510-7000 SUITE 2020 333 SOUTH GRAND AVENUE LOS ANGELES, CALIFORNIA 90071 213 -613 -1112 TELECOPIER 213 - Sao - 13 S S February 21, 1985 TO THE PARTIES NAMED ON THE ATTACHED DISTRIBUTION LIST Northern California Power Agency Transfer of the City of Redding's Interest in the Calaveras Project 2121 K STREET, N. W. - WASNINGTO►„ O.C. 20037 202-420-9383 12, FIVE OE LA PAIX 73002, PARIS,FRANCE 261-67-71 Enclosed please find final drafts of the Agreement for Transfer of Rights to Capacity and Energy of the North Fork Stanislaus River Hydroelectric Development Project (the "Transfer Agreement") and the Agreement for Sale of Surplus Capacity and Energy of the North Fork Stanislaus River Hydroelectric Development Project (the "Sale Agreement"). I have also enclosed forms of resolutions approving the adoption of these Agreements in substantially the form such Agreements currently exist. Each of the Project Participants, except the City of Redding, will reed to adopt the resolution approving the Sale Agreement and those Project Participants who are a party to the Transfer Agreement need to adopt the resolution approving the Transfer Agreement. The Transfer Agreement and Sale Agreement are to be approved by the Commission at its next regular meeting or, March 1, 1985. Because of the timing of the financing it is important that each of the Project Participants approves the applicable Agreements by resolution as soon as possible. Those Project Participants which prefer to wait until the Commission approves the Agreements may do SO. The Transfer Agreement and Sale Agreement need to be approved prior to March 21, 1935 in order for the financing to be completed. JFA/pk Enclosures -Z- Northern California Power Agency 180 'Cirby Way Roseville, California 956.78 Attn: Mr. Paul E.'Cavote General Manager Northern California Power Agency 180 Cirby Way Roseville, California 95678 Attn: Mr. Hari N. Modi Project Manager Ms. Maerose J. Humphreys Assistant to General Manager Bureau of Electricity Department of Public Utilities City of Alameda P.O. Drawer 4 Alameda, California 94501 Mr. Harold Mayfield. City Engineer City of Biggs P.O. Box 307 Biggs, California 95917 Mr. Henry Ford City Administrator City of Gridley 685 Kentucky Street Gridley, California 95948 Mr. Clifton Shifflett City of Gridley 685 Kentucky Street Gridley, California 95948 Mr. Dennis Mrkvicka City Hall - 126 Matheson Street Healdsburg, California 95448 Mr. Leonard S. Lindley Director Department of Electricity City Mall - 760 Parkview Avenue Redding, California 96001 Richard Young Director of utilities City Attorney's Office City of Palo Alto P.O. Box 10250 Palo Alto, California 943031 Earl D. Murphy, Esq. 3435 Scenic Drive Redding, California 96001 Anthony C. Bennetti, Esq. Sr Assistant City Attorney City Attorney's Office City of Palo Alto P.O. Box 10250 Palo Alto, California 94303 Robert E. Crawford, Esq. 314 Center Street Healdsburg, California 95448 :WA Michael F. Dean, Esq. 'City 'Hall 316 Vernon Street Roseville, California 95678 Randall A; Hays, Esq. City Hall - 760 Parkview Avenue Redding, California 96001 David H. Hirsch, Esq. City Hail -- 100 Civic Center Plaza Lompoc, California 93438 David R. Lane, Esq. (Gridley;,City Attorney) Rich, F'uidge, March & Morris; Inc. 1129 D Street Marysville, California 95901 Robert Millington, Esq. (Biggs City Attorney) Millington & Millington 446 Kentucky Street, Box 876 Gridley, California 95948 Edwin J, Moore, Esq, City Hall - 1500 Warburton Avenue Santa Clara, California 95050 David J. Rapport, Esq. P.O. Box 488 City Hall -- 203 S. School Street Ukiah, California 95482 Ronald Stein, Esq. City Hall - 221 W. Pine Street Lodi, California 95240 -3- Brown, Wood, Ivey, Mitchell & Petty One World Trade Center 58th Floor New York, New York 10048 Attn: Homer D. Schaaf, Esq. Merrill Lynch Capital Markets Municipal Utilities Department 39th Floor One Liberty Plaza/165 Broadway New York, New York 10080 Attn: Mr. Richard H. Molke, Jr. Vice President Kerriil Lynch Capital Markets Municipal Utilities Department 39th Floor One Liberty Plaza/165 Broadway New York,.New York 10080 Attn: Mr. Andrew Sanford Research Analyst Merrill Lynch Capital Markets Municipal Utilities Department 39th Floor One Liberty Pla7,a/165 Broadway New York, New York 10080 Attn: Mr. Willson :opp Research Analyst -4- `7 Mudge Rose Guthrie Alexander & Ferdon 333' South .Grand Avenue Suite ,2020 Los Angeles, California 90071 Attn: Eugene J. Carron, Esq. Mudge Rose Guthrie Alexander & Ferdon 180 Maiden Lane New York, New York 10038 Attn: John T. Kelly, Esq. -5- I Resolution No. RESOLUTION APPROVING THE AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT WHEREAS, the City of Redding and each of the Purchasing Participants have entered into the Third Phase Agreement with NCPA pursuant to which NCPA has agreed to provide, and the City of Redding and each of the Purchasing Participants have agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, Section 9(c) of the Third Phase Agreement autho- rizes the City of Redding, as a Project Participant, subject to the terms and conditions thereof, to transfer, assign, sell or exchange all or a portion.of the Project capacity and energy to which it is entitled to the Purchasing Participants and provides that the Purchasing Participants shall be entitled to the Project capacity and energy to the extent the same is so transferred, assigned, exchanged, or sold; and WHEREAS, the City of Redding has determined to transfer assign and sell all of its Project Entitlement Percentage of the capacity and energy of the Project to the Purchasing Participants in accordance with Section 9(c) of the Third Phase Agreement on the terms and conditions herein contained; and WHEREAS, no Bonds have been issued to finance the cost of the Project; and WHEREAS, all the other conditions to the transfer, sale and assignment of the City of Redding's Project Entitlement Percentage of the Project capacity and energy have been satisfied or will be satis- fied on the effective date of such transfer, sale and assignment pro- vided for in the Agreement for Transfer of Rights to Capacity and Energy of the North Fork Stanislaus River Hydroelectric Development Project (the "Transfer Agreement"); and WHEREAS, Section 9(c) of the Third Phase Agreement further provides that the Project Entitlement Percentage of the Project Participant so transferring, assigning, exchanging or selling all or a portion of its Project Entitlement Percentage shall be decreased and the obligations of such Project Participant under the Third Phase Agreement shall be discharged to the extent Project capacity and energy is transferred, assigned, exchanged or sold except for obliga- tions incurred by NCPA prior to the date of such transfer, assign- 5 - menu exchange or sale; - WHEREAS, there has been proposed and submitted to this meeting a form of the Transfer Agreement, ?0"11, NOW THEREFORE, BE IT RESOLVED by the City Council of the City of , as follows: Section 1. The City Council hereby finds and determines that the terms and conditions of the TransferAgreement in substan- tially the form submitted to this meeting and made a part hereof as though set forth in full herein be, and the same is hereby, approved, Section 2. The City is hereby authorized to enter into the Transfer Agreement and the and the are hereby authorized to execute and deliver the Transfer Agreement by and on behalf of the City with such changes, insertions and omissions as may be approved by _ , said execution being conclusive evidence of such approval. Section 11. The and , and any other proper officer of the City, acting singly, be and each of them hereby is authorized and directed to execute and deliver any and all docu- ments and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions con- templated by the Transfer Agreement and by this resolution. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF , this day of , 1985, by the f ollowing vote: AYES: COUNCILMEN: NOES: COUNCILMEN: ABSENT: COUNCILMEN: ATTEST: City Clerk City of AGREEMENT FOR SALE OF SURPLUS CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT Dated as of February 1, 1955 By and Among NORTHERN CALIFORNIA POWER AGENCY and City of Alameda City of Biggs City of Gridley City of Healdsburg City of Lodi City of Lompoc City of Palo Alto City of Roseville City of Santa Clara City of Ukiah Plumas-Sierra Rural Electric Cooperative c� r AGREEMENT FOR SALE OF SURPLUS CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT This Agreement, dated as of February 1, 1985, by and among Northern California Power Agency, a joint powers agency of the State of California and the Project Participants (capitalized terns used herein shall have the meanings given such terms in Section 1 hereof), WITNESSETH: WHEREAS, NCPA and each of the Project Participants have entered into the Third Phase Agreement pursuant to which NCPA has agreed to provide, and each of the Project Participants has agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, the City of Redding has determined not to pextici- pate in the Project; and WHEREAS, in order to finance the cost of the Project, it is necessary that the aggregate of the Project Entitlement Percentages of all Project Participants willing to participate in the Project equal 100%; and WHEREAS, in order to permit the financing to proud, the Purchasing Participants have agreed to take, or cause to be taken, the City of Redding's Project Entitlement Percentage and to that end, each will enter into the Transfer Agreement; and WHEREAS, Sections 9 and 10 of the Third Phase Agreement authorize each Project Participant, subject to the terms and condi- tions thereof, to transfer, assign, sell or exchange all or a portion of the surplus Project capacity and energy to which it is entitled; and WHEREAS, Section 10 of the Third Phase Agreement provides certain terms and conditions to the sale by NCPA of surplus Project capacity and energy; and WHEREAS, as an inducement to the Purchasing Participants to enter into the Transfer Agreement and to take, or cause to be taken, the Purchased Project Entitlement Percentages, the other Project Participants have determined that, notwithstanding their rights to sell surplus Project capacity and energy under the Third Phase Agreement, to permit any such transfer or sale under a Long Term Power Purchase Contract to be deemed a transfer or sale of the Purchased Project Entitlement Percentages, all on the terms and con- ditions herein contained; NOW THEREFORE, the parties hereto do agree as follows: 1® Definitions. Terms used herein which are defined in the Third Phase agreement shall have the same meanings herein as are given -such terms in the Third Phase Agreement. In addition, foil°owing `'termsshall, for all purposes of this Agreement, have following meanings: "Long Term Power Purchase Contract" means any agreement by a Project Participant, other than the Transfer Agreement, for the sale or transfer of Project capacity and energy to any person, including another Project Participant, which has a term in excess of one year, provided, however, that any such agreement which is subject to termination at the option of either party shall be considered to have a term extending to the first date suci-i option may be exercised. "Purchased Project Entitlement Percentage" means, with respect to each Purchasing Participant, such Purchasing Participant's share of the City of Redding's Project Entitlement Percentage of the capacity and energy of the Project identified in Section 2 of the Transfer Agreement. "Purchasing Participant" means each of the City of Alameda, the City of Healdsburg, the City of Roseville, and the City of Santa Clara. "Third Phase Agreement" means the Agreement for Construction, Operation and Financing of the North Forth Stanislaus River Hydroelectric Development Project, dated as of September 1, 1982, by and among NCPA and the Project Participants as the same has been and may be amended or supplemented from time to time in ac,-:ordance with its terms. "Transfer Agreement" means the Agreement for Transfer of Rights to Capacity and Energy of the North Fork Stanislaus River Hydroelectric. Development Project, dated as of February 1, 1985, by and among the City of Redding and the Purchasing Participants as the same may be amended or sup- plemented from time to time in accordance with its terms. the the Except where the context otherwise requires, words import- ing the singular number shall include the plural number and vice versa, and words importing persons shall include firms, associationsn agencies and corporations. 2. Sale of Project energy and capacity under Long Term Power Purchase Contracts. (a) As an inducement to each Purchasing Participant to take or cause to be taken its respective Purchased Project Entitlement Percentage, each Project Participant agrees that each sale or transfer of Project capacity and energy under a Long Term Power Purchase Contract shall for all purposes be deemed a transfer or sale of the Purchased Project Entitlement Percentage of Project capacity and energy by the Purchasing Participants in, the -2- proportion that such Purchasing Participant's Purchased Project Entitlement Percentage bears to the total of all Purchased Project Entitlement Percentages under the Transfer Agreement; provided, how- ever, that any Purchasing Participant may, by notice in writing delivered to NCPA, elect not to have such transfer or sale treated as a transfer or" sale of its Purchased Project Entitlement Percentage. (b) Within five days of entering into a Long Term Power Purchase Contract, any Project Participant who enters into a Long Term Power Purchase Contract, shall provide a copy of such Contract to NCPA and to each of the Purchasing Participants. The Purchasing Participants shall have seven days from receipt of such Contract to provide notice to NCPA to elect not to have such transfer or sale treated as a tra. sfer or sale of its Purchased Project Entitlement Percentage. (c) The provisions of subsection (a) of this Section 2 shall apply to each sale or transfer of Project capacity and energy under a Long Term Power Purchase Contract until the aggregate of the Project capacity and energy which has been or, but for an election made by a Purchasing Participant pursuant to subsection (a) of this Section 2, would have been treated as a transfer or sale of the Purchased Project Entitlement Percentages equals 10.04%. 3. Approval of Transfer Agreement, NCPA a n d each Project Participant hereby approves the Transfer Agreement and the transfer, sale and assignment of the Purchased Project Entitlement Percentages by the City of Redding to the Purchasing Participants thereunder and agrees to such transfer, sale and assignment. 4. Effective Date. This Agreement shall become effective for all purposes upon the execution hereof by NCPA and each of the Project Participants. 5. Termination. This Agreement shall not be subject to termination by any party under any circumstances, whether based upon the default of any other party under this Agreement, or any other instrument, or otherwise. 6. Miscellaneous. (a) For purposes of notices provided p"rsuant to Section 2 hereof, notices sent by registered or certified mail will be deemed received two days after mailing. Notices sent by courier shall be deemed received the date of delivery. (b) The headings of the sections hereof are inserted for convenience only and shall not be deemed a part of this Agreement. If any one or more of the covenants or agreements provided in this Agreement to be performed should be determined to be invalid or contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreements -3- Y 1 herein contained and shall in no way affect the validity of the remaining provisions of this Agreement This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all such counterparts shall constitute and be but one and the same instr. anent R M IN WITNESS WHEREOF each Project Participant has executed this Agreement with, the approval of its governing body, and caused its off icial seal to be affixed and NCPA has executed this Agreement in accordance with the authorization of its Commission. NORTHERN CALIFORNIA POWER AGENCY BY— _ AND [SEAL] CITY OF AL AMEDA BY AND [SEAL] CITY OF BIGGS BY AND [ SEAL] CITY OF GRIDLEY BY AND [SEAL] CITY OF HEALDSBURG BY AND [ SEAL] CITY OF LODI By AND [SEAL] -5- CITY OF LOMPOC BY AND [SEAL] CITY OF PALO ALTO BY AND [SEAL] CITY OF ROSEVILLE BY AND [SEAL] CITY OF SANTA CLARA BY AND [SEAL] CITY OF UKIAH BY AND [SEAL] PLUMAS-SIERRA RURAL ELECTRIC COOPERATIVE BY AND [SEAL] FINAL DRAFT AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVED. HYDROELECTRIC DEVELOPMENT PROJECT Dated as of February 1, 1985 City of Redding and City of Alameda City of Healdsburg City of Roseville City of Santa Clara AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT This Agreement, dated as of February 1, 1985, by and among the City of Redding and the Purchasing Participants (capitalized terms used herein shall have the meanings given such terms in Section 1 hereof), WITNESSETH: WHEREAS, the City of Redding and each of the Purchasing Participants have entered into the Third Phase Agreement with NCPA pursuant to which NCPA has agreed to provide, and the City of Redding and each of the Purchasing Participants have agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, Section 9(c) of the Third Phase Agreement autho- rizes the City of Redding, as a Project Participant, subject to the terms and conditions thereof, to transfer, assign, sell or exchange all or a portion of the Project capacity and energy to which it is entitled to the Purchasing Participants and provides that the Purchasing Participants shall be entitled to the Project capacity and energy to the extent the same is so transferred, assigned, exchanged, or sold; and WHEREAS, the City of Redding has determined to transfer assign and sell all of its Project Entitlement Percentage of the capacity and energy of the Project to the Purchasing Participants in accordance with Section 9(c) of the Third Phase Agreement on the terms and conditions herein contained; and WHEREAS, no Bonds have been issued to finance the cost of the Project; and WHEREAS, all the other conditions to the transfer, sale and assignment of the City of Redding's Project Entitlement Percentage of the Project capacity and energy have been satisfied or will be satin-- fied on the effective date of such transfer, sale and assignment pror- vided for herein; and WHEREAS, Section 9(c) of the Third Phase Agreement further provides that the Project Entitlement Percentage of the Project Participant so transferring, assigning, exchanging or selling_ all or a portion of its Project Entitlement Percentage shall be decreased and the obligations of such Project Participant under the Third Phase Agreement shall be discharged to the extent Project capacity and energy is transferred, assigned, exchanged or sold except for obliga- tions bligortions incurred by NCPA prior to the date of such transfer, assigr.- merit, exchange or sale; NOW THEREFORE, the parties hereto do agree as follows: n 1i Definitions. Terms used herein which are defined in the Third Phase Agreement shall have the same meanings: herein as are given such terms in the Third Phase Agreement. In addition, the fol- lowing terms shall, for all purposes of this Agreement, have the fol- lowing meanings: "Purchased Project Entitlement Percentage" means, with respect to each Purchasing Participant, such Purchasing Participant's share of the City of Redding's Project Entitlement Percentage of the capacity and energy of the Project identified in Section 2 hereof, as being the por- tion of the City of Redding's Project Entitlement Percentage purchased by such Purchasing Participant. "Purchasing Participant" means each of the City of Alameda, the City of Healdsburg, the.City of Roseville, and the City of Santa Clara. "Third Phase Agreement" means the Agreement for Construction, Operation and Financing of the North Forth Stanislaus River Hydroelectric Development Project, dated as of September 1, 1982, by and among NCPA and the Project Participants as the same has been and may be amended or supplemented from time to time in accordance with its terms. Except where the context otherwise requires, words import- ing the singular number shall include the plural number and vice versa, and words importing persons shall include firms, associations, agencies and corporations. 2. Transfer of Purchased Project Entitlement Percentages. The City of Redding hereby transfers, sells, and assigns to each of the Purchasing Participants, and each of the Purchasing Participants hereby accepts and agrees to take or cause to be taken, in accordance with the terms and conditions of the Third Phase Agreement the Purchased Project Entitlement Percentage of the Project capacity and energy to which the City of Redding is entitled pursuant to the Third Phase Agreement indicated below: -2- Purchasing Participant City of Alameda City of Healdsburg City of Roseville 0.15% 5.14% City of Santa Clara 2.14% Aggregate Purchased Project Entitlement Percentages 10.04% 3. Liability for Future Obligations under the Th3*xd Phaze Agreement. Each of the parties hereto acknowledges ar.:3 agrees that, upon the effectiveness of this Agreement, except as set forth in Section 4 below, the obligations of the City of Redding under the Third Phase Agreement with respect to the Purchased Project Entitlement Percentages shall be discharged and each of the Purchasing Participants shall be solely responsible thereunder for all obligations related to its respective Purchased Project Entitlement Percentage. Accordingly, except as set forth in Section 4 below, each of the Purchasing Participants hereby agrees that the City of Redding shall not be liable for any obligations under the Third Phase Agreement with respect to its Purchased Project Entitlement Percentage from the effectiveness of this Agreement and from such time each of the Purchasing Participants hereby expressly assumes the obligations undertaken by the City of Redding under the Third Phase Agreement with respect to the Purchased Project Entitlement Percentage of such Purchasing Participant. Each of the Purchasing Participants agrees to indemnify and hold the City of Redding harmless for any costs to the City of Redding under the Third Phase Agreement in connection with such Purchasing Participant's Purchased Project Entitlement Percentage incurred after the effectiveness of this Agreement. 4. Liability for Prior Obligations under the Third Phase Agreement. Each of. the Purchasing Participants hereby expressly disclaims, and the City of Redding agrees and acknowledges that no Purchasing Participant Ehall bear, any responsibility for or in con- nection with any obligat4on of the City of Redding under. the Third Phase Agreement incurred prior to the effectiveness of this Agreement including, without limitation, any obligation relating to an -3- obligation of NCPA incurred in connection with the Project prior to such effectiveness. 5. Reimbursement of Prior Advances. Notwithstanding the transfer, sale and assignment of the Purchased Project Entitlement Percentages pursuant hereto, the parties agree that the City of z Redding continues to be entitled to all amounts due under Section 16 of the Third Prase Agreement with respect to moneys a&,ranced by the city of Redding with respect to the Project, all on the terms and conditions, and subject to the limitations, contained in the Third Phase Agreement. No Purchasing Participant shall be entitled to any interest in such funds pursuant to this Agreement nor shall any Project Participant incur any liability to the City of Redding with respect to such funds hereunder. The parties hereto recognize that NCPA has, prior to the date of this Agreement, made assessments against the City of Redding in connection with the Project, certain of which have not been paid. The parties agree that nothing contained in this Agreement shall be construed as obligating either the City of Redding or any Purchasing Participant to pay any such assessment; provided, however, that in the event any party does pay such unpaid assessments, in whole or in part, such paying party shall be entitled to any reimbursement of such payments made by NCPA pursuant to Section 16 of the Third Phase Agreement anything contained above in this Section 5 to the contrary notwit:cstanding. 6. Amendment of Appendix A to the Third Phase Agreement. Section 9(c) of the Third Phase Agreement provides for an amendment to Appendix A thereto to reflect any transfer, assignment, sale or exchange of Pro -n::' capacity and energy thereunder. Each of the Purchasing Part;.:.. ants and the City of Redding hereby agrees to cooperate in ar F .,y Appendix A to the Third Phase Agreement to reflect the inc r;:::•=pd Project Entitlement Percentage of each of the Purchasing ParLi.cxpants as a result of acquiring the Purchased Project Entitlement Percentages herc.•u::7der and to reflect the decrease in the City of Redding's Project Entitlement Percenrage to zero. 7. Effective Date. This Agreement shall become effective for all purposes upon the happening of all of the following: (i) the execution and delivery hereof try the City of Redding and each of the Purchasing Participants; (ii) the approval of NCPA; and (iii) the approval of each Project Participant unless NCPA determines, after consultation with its consulting engineer, that such approval should not be required. 8. Termination. This Agreement shall not be subject to termination by any party under any circumstances, whether based upon the default of any other party under this Agreement, or any other instrument, or otherwise. -4- 9. Miscellaneous. The 'headings of the sections hereof are-;inse.rted' for convenience only and shall ,not be deemed,a part of this'Agreement. If any one or more of the covenants or agreements provided in this Agreement to be performed should be determined to be invalid or contrary to law, such covenant or agreement shall be deemed and construed to .be severable from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all such counterparts shall constitute and be but one and the same instrument. -5- CITY OF ALAMEDA By And [ SEAL] CITY OF HEALDSBURG By And— CITY OF ROSEVILLE By. By [SEAL] CITY OF SANTA CLARA By By [SEAL) [ SEAL] CITY OF REDDING By Ana [SEAL] Enclosed herewith please find executed copies of the above referenced Agreement which was approved by the Lodi City Council at its March 6, 1985 Regular Meeting, together with a certified copy of the authorizing Resolution No. 85-39. Very truly yours, Alice M. Reimehe City Clerk AMR:jj /4 \ =' . HENRY A. CLAVES. Jr. CITY COUNCIL City Manager JOHN R. (Randy) SNIDER, MayorC I T Y OF L O D ALICE M. REIMCHE DAVID M :NINCHMAN :Mayor ProTempore - - CITY HALL, 221 WEST P;NE STREET City Clerk EVELYN M. OLSON' POST OFFICE BOX 320 RONALD M. STEIN City Attorney JAMES W. PINKERTON, Jr, LODI, CALIFORNIA 95241 FRED M. REID (209) 334-5634 f,9arch 12, 1985 ! - 10 v To: Gail Sipple NCPA 180 Cirby Way Roseville, CA 95678 Subject: Transfer and Sales Agreement regarding the Calaveras Project Enclosed herewith please find executed copies of the above referenced Agreement which was approved by the Lodi City Council at its March 6, 1985 Regular Meeting, together with a certified copy of the authorizing Resolution No. 85-39. Very truly yours, Alice M. Reimehe City Clerk AMR:jj RESOLUTION NO, 85-39 RESOLUTION APPROVING THE AGREEMENT FOR SALE OF SURPLUS CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT WHEREAS, NCPA and each of the Project Participants have entered into the Third Phase Agreement pursuant to which NCPA has agreed to provide, and each of the Project Participants has agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, the City of Redding has determined not to participate in the Project; and WHEREAS, in order to finance the cost of the Project, it is necessary that the aggregate of the Project Entitlement Percentages of all Project Participants willing to participate in the Project equal 100%; and WHEREAS, in order to permit the financing to proceed, the Purchasing Participants have agreed to take, or cause to be taken, the City of Redding's Project Entitlement Percentage and to that end, each will enter into the Transfer Agreement; and WHEREAS, Sections 9 and 10 of the Third Phase Agreement authorize each Project Participant, subject to the terms and conditions thereof, to transfer, assign, sell or exchange all or a portion of the surplus Project capacity and energy to which it is entitled; and WHEREAS, Section 10 of the Third Phase Agreement provides certain terms and conditions to the sale by NCPA of surplus Project capacity and energy; and WHEREAS, as an inducement to the Purchasing Participants to enter into the Transfer Agreement and to take, or cause to be taken, the Purchased Project Entitlement Percentages, the other Project Participants have determined that, notwithstanding their rights to sell surplus Project capacity and energy under the Third Phase Agreement, to permit any such transfer or sile under a Long Term Power Purchase Contract to be deemed a transfer or sale of the Purchased Project Entitlement Percentages, all on the terms and conditions contained in the Agreement for Sale of Surplus Capacity and Energy of the North Fork Stanislaus River Hydroelectric Development Project (the "Sale Agreement"); WHEREAS, there has been proposed and submitted to this meeting a form of the Sale Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lodi, as follows: R4 r �` Section 1. The City Council hereby finds and determines that th`e terms `and -.condi tions of the Sale Agreement in subitant ially the form submitted, -to this meeting and made a pant hereof as though set forth in full herein be, andthesame is hereby, approved. Section 2. The City is hereby authorized to enter into the Sale Agreement and the Mayor and the City Clerk are hereby authorized to execute and deliver the Sale Agreement by and on behalf of the City with such changes, insertions and omissions as may be approved by the City Council, said execution being conclusive evidence of such approval. Section 3. The Mayor and City Clerk, and any other proper officer of the City, acting singly, be and each of them hereby is authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by the Sale Agreement and by this resolution. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF LODI, 6th day of March, 1985, by the following vote: Council Members - Pinkerton, Hinchman, Olson, Reid, and Snider (Mayor) Council Members - None Council Members (t. a'- 6� Alice M. Reimche City Clerk AGREEMENT FOR SALE OF SURPLUS CAPACITY A_NM ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROEELECTRIC DEVELOPMENT PROJECT Dated as of February 1, 1985 By and Among NORTHERN CALIFORNIA POWER AGENCY and City of Alameda City of Biggs City of Gridley City of Healdsburg City of Lodi City of Lompoc City of Palo Alto City of Roseville City of Santa Clara City of Ukiah Plumas-Sierra Rural Electric Cooperative i AGREEMENT FOR SALE OF SURPLUS CAPACITY AND ENERGY E NORTH FORS{ STAN ISLAUS RIVER HYDROELECTRIC OF T1. � DEVELOPMENT PROJECT This Agreement, dated as of February 1, 19: by and among Northern California Power Agency, a joint powers agency of the State of California and the Project Participants (capita' --ed terms used herein shall have the meanings given such terms in Section. 1 hereof) , WITNESSETH: WHEREAS, NCPA and each of the Project Participants have entered into the Third Phase Agreement pursuant to which NCPA ;gas agreed to provide, and each of the Project Participants has agreed to take or cause to be taken, their respective Project Entitlem,'�nt Percentages of the capacity and energy of the Project; and WHEREAS, the City of Redding has determined not to partici- pate in the Project; and WHEREAS, in order to finance the cost of the Prcject, it is necessary that the aggregate of the Project Entitlement Percentages of all Project Participants willing to participate in the Project equal 100%; and WHEREAS, in order to permit the financing to proceed, the Purchasing Participants have agreed to take, or cause to be taken, the City of Redding's Project Entitlement Percentage and to that end, each will enter into the Transfer Agreement; and WHEREAS, Sections 9 and 10 of the Third Phase Agreement authorize each Project Participant, subject to the terms and condi- tions thereof, to transfer, assign, sell or exchange all or a portion of the surplus Project capacity and energy to which it is entitled; and WHEREAS, Section 10 of the Third Phase Agreement provides certain terms and conditions to the sale by NCPA of surplus Project capacity and energy; and WHEREAS, as an inducement to the Purchasing Participants to enter into the Transfer Agreement and to take, or cause to be taken, the Purchased Project Entitlement Percentages, the other Project Participants have determined that, notwithstanding their rights to sell surplus Project capacity and energy under the Third Phase Agreement, to permit any such transfer or sale under a Long Term Power Purchase Contract to be deemed a transfer or sale of the Purchased Project Entitlement Percentages, all on the terms and con- ditions herein contained; NOW THEREFORE, the parties hereto do agree as follc, :;: to Definitions. Terms used herein which are defined it the Third Phase Agreement shall have the same meanings herein as are given such terms in the 1,1hird 'Phase Agreement. In addition, the following terms shall, for all purposes of this Agreement, have the following meanings: "Long Term Power Purchase Contract" means any agreement by a Pr^ject Participant, other than the Transfer Agreement, for the sale or transfer of Project capacity and energy to any person, including another Project Participant, which has a term in -excess of one year; provided, however, that any such agreement which is subject to termination at the option of either party shall be considered to have a term extending to the first date such option may be exercised. "Purchased Project Entitlement Percentage" means, with respect to each Purchasing Participant, such Purchasing Participant's share of the City of Redding's Project Entitlement Percentage of the capacity and energy of the Project identified in Section 2 of the Transfer Agreement. "Purchasing Participant" means each of the City of Alameda, the City of Healdsburg, the City of Roseville, and the City 'of Santa Clara. "Third Phase Agreement" means the Agreement for Construction, Operation and Financing of the North Forth Stanislaus River. Hydroelectric Development Project, Sated as of September 1, 1982, by and among NCPA and the Project Participants as the same has been and may be amended or supplemented from time to time in accordance with its terms. "Transfer Agreement" means the Agreement for Transfer of Rights to Capacity and Energy of the North Fork Stanislaus River Hydroelectric Development Project, dated as of February 1, 1985, by and among the City of Redding and the Purchasing Participants as the same may be amended or sup- plemented from time to time in accordance with its terms. Excapt where the context otherwise requires, words import- ing the sing,lar number shall include the plural number and vice versa, and words importing persons shall include firms, associations, agencies and corporations. 2. Sale of Project energy and capacity under Long Term Power Purchase Contracts. (a) As an inducement to each Purchasing Participant to take or cause to be taken its respective Purchased Project Entitlement Percentage, each Project Participant agrees that each sale or transfer of Project capacity and energy under a Long Term Power Purchase Contract shall for all purposes be deemed a transfer or sale of the Purchased Project Entitlement Percentage of Project capacity and energy by the Purchasing Participants in the -2- ON proportion that such Purchasing Participant's Purchased, Project Entitlement Percentage bears to the total- of all Purchased Project. Entitlement Percentages under the transfer Agreement; provided, how- ever, that anv Purchasing Participant may, by notice in writing delivered to NEPA, elect not to have such transfer or sale treated as a transfer or sale of its Purchased Project Entitlement Percentage. (b) Within five days of entering into a Long Term Power Purchase Contract, any Project Participant who enters into a Long Term Power Purchase Contract, shall provide a copy of such Contract to NCPA and to each of the Purchasing Participants, The Purchasing Participants shall have seven days from receipt of such Contract to provide notice to NCPA to elect not to nave such transfer or sale treated as a transfer or sale of its Purchased Project Entitlement Percentage. (c) The provisions of subsection (a) of this Section 2 shall apply to each sale or transfer of Project capacity and energy under a Long Term Power Purchase Contract until the aggregate of the Project capacity and energy which has been or, but for an election made by a Purchasing Participant pursuant to subsection (a) of this Section 2, would have been treated as a transfer or sale of the Purchased Project Entitlement Percentages equals 10.04%. 3. Approval of Transfer Agreement. NCPA and each Project Participant hereby approves the Transfer Agreement and the transfer, sale and assignment of the Purchased Project Entitlement Percentages by the City of Redding to the Purchasing Participants thereunder and agrees to such transfer., sale and assignment. 4. Eff ective Date. This Agreement shall become effective for all purposes upon the execution hereof by NCPA and each of the Project Participants. 5, Termination. This Agreement shall not be subject to termination by any party under any circumstances, whether based upon the default of any other party under this Agreement, or any other instrument, or otherwise. 6. miscellaneous. (a) For purposes of notices provided pursuant tc Section 2 hereof, notices sent by registered or certified mail will be deemed received two days after mailing. Notices sent by courier shall be deemed received she date of delivery. (b) The headings of the sections hereof are inserted for convenience only and shall not be deemed a part of this Agreement. If any one or more of the covenants or agreements provided in this Agreement to be performed should be determined to be invalid or contrary 'to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreements -3- 77 7777 7 herein contained and `shall in no way affect the validity of the remaining provisions of this Agreement. phis Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all such counterparts shall constitute and be but one and the same instrument. i IN WITNESS WHERE0F each Project Participant has executed this Agreement with`the approval of its governing body, 'and caused' its official seal to be affixed and NCPA has executed this Agreement in accordance with the authorization of its Commission. NORTHERN CALIFORNIA POWER AGENCY BY AND [ SEAL] CITY OF ALAMEDA BY [ SEAL] CITY OF BIGGS BY AND [ SEAL] CITY OF GRIDLEY BY AND [SEAL] CITY OF HEALDSBURG BY AND_ - _ [ SEAL] CITY 0LODI�� � BY_ J'"✓yam ✓c �..,��r�� AND ' lifr<:' 7��x_�+_,' P."•aycr [ SEALI City C{er!c CITY OF LOMPOC BY AN`✓ [SEAL] CITY OF PALO ALTO BY— AND— [SEAL] YAND[SEAL] CITY OF ROSEVILLE BY AND [ SEAL] CITY OF SANTA CLARA BY_ AND [SEAL] CITY OF UKIAH BY AND [ SEAL] PLU;~1AS—SIERRA RURAL ELECTRIC COOPERATIVE BY AND [SEAL] Resolution No. RESOLUTION APPROVING THE AGREEMENT FOR SALE OF SURPLUS CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT WHEREAS, NCPA and each of the Project Participants have entered into the Third Phase Agreement pursuant to which NCPA has agreed to protide, and each of the Project Participants has agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, the City of Redding has determined not to partici— pate in the Project; and WHEREAS, in order to finance the cost of the Project, it ;s necessary that the aggregate of the Project Entitlement Percentages of all Project Participants willing to participate in the Project equal 100%; and WHEREAS, in order to permit the financing to proceed, the Purchasing Participants have agreed to take, or cause to be taker_, the City -of Redding's Project Entitlement Percentage and to that end, each will enter into the Transfer Agreement; and t-7HEREAS, Sections 9 and 10 of the Third Phase Agreement authorize each Project Participant, subject to the terms and condi— tions thereof, to transfer, assign, sell or exchange all or a portion of the surplus Project capacity and energy to which it is entitled; and WHEREAS, Section 10 of the Third Phase Agreement provides certain terms and conditions to the sale by NCPA of surplus Project capacity anu energy; and WHEREAS, as an i.nduce_ment to the Purchasing Participants to enter into the Transfer Agreement and to take, or cause to be taken, the Purchased Project Entitlement Percentages, the other Project Participants have determined that, notwithstanding their rights to sell .surplus Project capacity and enerov under the Third Phase Agreement. to permit any such transfer or sale under a Long Terre Power Purchase Contract to be deemed a transfer or sale of the Purchased Project Entitlament Percentages, all on the terms and con— ditions contained in the Agreement for Sale of Surplus Capacity and Energy of the North Fork Stanislaus River Hydroelectric Develop -men-, Project (the "Sale Ag;:eement"); i-;HEREAS, there has been proposed and submitted to ti --� s meeting a form of the Sale Agreement, NOW THEREFORE, BE IT RESOLVED by the City Council of the City of , as follows: r Section 1. The City Council hereby finds and determines that the terms and conditions of the Sale Agreement in substantially the form submitted to this meeting and made a part hereof as though set forth in 'full herein be, and the same is hereby, approved. Section 2. The City is hereby authorized to enter into the Sale Agreement and the and the are hereby authorized to execute and deliver the Sale Agreement by and on behalf of the City with such changes, inser- tions and omissions as may be approved by , said execution beina conclusive evidence of such approval. Section 3. The _ and -, and any other proper officer of the City, acting singly, be and each of them hereby is authorized and directed to execute and deliver any and all docu- ments and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions con- templated by the Sale Agreement and by this resolution. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF this day of , 1985, by the following vote: AYES: COUNCILMEN: NOES: COUNCILMEN: ABSENT: COUNCILMEN: ATTEST: City Clerk City of