HomeMy WebLinkAboutAgenda Report - August 1, 1984 (67)z
CRD. ND. 1329 Ordinance No. 1329 - Fhtitled "An Ordinance of the City
ADCPM Council of the City of Lodi. California, approving the terms
and conditions of an Agreement among NCPA and certain
project participants and authorizing the executing of and
delivery of said Agreement by Officers of the City of Lodi",
having been introduced at a regular meeting of the Lodi City
Council held July 18, !984 was brought up for passage on
motion of Council Mentzer Reid, Olson second. Second reading
of the Ordinance was omitted after reading by title, and the
Ordinance was then adopted and ordered to print by the
following vote:
Ayes: Council Menbers - Olson, Reid, and Hinchman
Noes: Council Mercbers - Pinkerton
Absent: Courc i 1 NUTbe rs - Snider (1liayor )
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CFDINANCE NO. 1329
CiiDINANCE OF MIE CITY OCtNCIL CP UM CITY OF TDI,
CALIFUNIA. APPROVING Tim TMIS AND OCMITICNS OF
AN ACRERWMgr AMNG NORMI3Q CALIFCMIA PCWER AGENCY
AND CERTAIN FTDJDLT PARrICIPANIS AND APPROVING ME
EXB=ICN OF AND DELIVERY OF SAID ACREflMM BY
OFFICERS OF TM CITY OF LCDI. CALIFCMIA
N MM%S. pursuant to the provisions relating to joint
exercise of powers found in Chapter S of DIvision 7 of Title 1 of the
Government Code of the State of California. as amended (the "Joint
Powers Act"), the City of Lodi. California (the "City") and certain
other public agencies created pursuant to the laws of the State of
California (collectively. the "Nbnbers"). have entered into a Joint
Powers AgTeemi-t (the "Agreement") creating Northern California Power
Agency (the "Agency"). a public entity separate and apart from the
Mwbers: and
V*OM%S, in accordance with the Agreement and the Joint
Powers Act the Agency proposes to acquire and construct or cause to be
acquired and constructed and to operate or cause to be operated a
project (the "Project") consisting of not more than seven 24 -megawatt
cafLmstion turbine generating units or such lesser number of units,
but not less than three. as will be determined in accordance with the
terms and conditions of the Third Phase Agreement (as hereinafter
defined), and related facilities. including electric facilities
necessary for the Project to interconnect with the adjacent electric
system, and all rights, properties and improvements necessary
therefor, including fuel and water facilities and resources. and
capital improvements that may be constructed from time to time.
Nil , the City has need for an econamicai and reliable
source o: electric power and energy to meet the demands of the
customers of its electric system; and
V&IE EAS, this City Council finds and determines that it is
in the best interests of the customers of the electric system of the
City for the City to enter into the Agreement for Construction,
Operation and Financing of Carbustion Turbine Project NuTher One (the
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"Third Phase Agreement") in substantially the form submitted to this
City Council and dated for convenience as of duly 1. 1984; and
40MAS. this City Council finds and determines that the
purchase of electric capacity and energy of the Project fran the
Agency on the terms and conditions set forth in the Third Phase
Agreement is necessary to supply the customers of the electric system
of the City with electricity; and
I*REAS. payments by the City pursuant to the Third Phase
Agreement will be used in part by the Agency for payment of principal
of and interest on its bonds. notes or othe. --idences of indebtedness
issued in eormection with the construction. operation and financing of
the Project:
NUI. 111EREFCiE. the City CDunci 1 of the City of Lodi,
California does ordain as follows:
1. The City Council hereby approves the act of entering
Into the 'third Phase Agreement and the temrs and conditions of the
Third Phase Agreement (including the Project Entitlement Percentage of
the City Let forth in each of Appendices A-1 through A-5 thereto) in
substantially the form submitted to this City Council be, and the same
are hereby. approved.
2. The Project Entitlement Perccntage of the City as set
forth in each of Appendices A-1 through A-5 to said 'ihird Phase
Agreement may be increased to such percentage. not to exceed and
increase of 0.0 percent (0.0%) of the largest Project Entitlement
;t Percentage indicated for the City in arty of Appendices A-1 through A-5
of the Third Phase Agreement. as shall be determined by the City
Council of the City. In addition to any changes authorized by the
immediately preceding sentence. the City hereby authorizes and
approves any other amendment to any or all of Appendices A-1 through
A-5 of the Third Phase Agreement as to Project Participants (as
j
defined in the Third Phase Agreer . ') other than the City necessary so
that the Project Er,itiement Percentages of all the Project
Participants shall equal one hundred percent (100%).
3. The City is hereby authorized to enter into the Third
Phase Agreement and the Mayor and the City Clerk are hereby authorized
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to
to execute and deliver the Third Phase Agreement by and on behalf of
the City with such changes, insertions and emissions as may be
approved by the City Cotimil, said execution being conclusive evidence
of such approval.
4. Pursuant to Section 54241 of Out Government Code of the
State of California, this Ordinance is subject to the provisions for
referendum applicable to the City.
E 5. The City Clerk shall certify to the enactment of- this
� Ordinance and shall cause this Ordinance to be published in accordance
with Section 54242 of the Government Code of the State of California.
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6. Thirty (30) days fran and after its enactment, this
Ordinance shall take effect and be in full force. in the manner
provides: by law.
ADOPTED by the City Council and signed by the Mayor and
attested by the City Clerk this 1st day of August. 1984.
Attest:
yor
Ali a M. Refmche
City Clerk-
State
lerkState of California
County of San Joaquin, ss.
s I, Alice M. Reimehe, City Clerk of the City of
he.
Lodi, do
hereby certify that Ordinance No. 1329
was introduced at a regular meeting of the City
Cmmc l of the City of Lodi held duly 18, 1984
and was thereafter passed, adopted and ordered to
print at a regular meeting of said Council he d
August 1, 1984 by the following vote:
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, x Ayes: Council Members - Hinehman. Olson, and
�.. Reid
Noes: Council Menbers - Pinkerton
71;4 4 j
Absent: Council Meffbers - Snider
Abstain: Council Niacbers - None
I further certify that Ordinance No. 1329 was
approved and signed by the Mayor on the date of
its passage and the same has been published
4` pursuant to law.
r t: Alice M. Reimche
City Clerk
r
C
FORK OF OPINION OF COUNSEL
Northern California Power Agency
8421 Auburn Boulevard
Suite 160
Citrus Heights, California 95610
Dear Sirs:
APPENDIX C
I am acting as counsel to the ( the "Project
Participant") under the Agreement for Construction, Operation and
Financing of Combustion Turbine Project Number One, dated as of
July 1, 1924 ( the *Agreement*) among the Project Participant,
Northern California Power Agency (the "Agency") and certain other
entities (the "Project Participants"), and I have acted as counsel to
the Project Participant 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 Project Participant, (ii) all necessary documentation of the
Project Participant relating to the authorization, execution and
delivery of the Agreement and ( iii) an executed counterpart of the
Agreement.
Based upon the foregoing and an examination of law and such
other information, papers and documents as I deem necessary or advs-
able to enable me to render this opinion, including the Constitution
and laws of the State of California together with the charter, other
governing instruments, ordinances and public proceedings of the
Project Participant, I am of the opinion that
1. The Project Participant is (state form of
organization) duly created,. organized and
existing under the laws of the State of California and duly
qualified to furnish electric service within the State of
California.
2. The Project Participant has full legal right,
power and authority to enter into the Agreement and to
carry out and consummate all transactions contemplated
thereby, and the Project Participant has complied with the
provisions of applicable law in all matters relating to
such transactions.
3. The Agreement has been duly authorized, executed
and delivered by the Project Participant, is in full force
and effect as to the Project Participant in accordance with
its terms and, assuming that the Agency has all the requi-
site power and authority, and has taken all necessary
action, to execute and deliver such Agreement, constitutes
the legal, valid and binding obligation of the Project
Participant enforceable in accordance with its terms.
4. Payments by the Project Participant under the
Agreement will constitute an operating expense of the
Project Participant and are to be made solely from the
Revenuei of its Electric System as provided in Section 5(c)
of the Agreement.
5. No approval, consent or authorization of any gov-
ernmental or public agency, authority or person is required
for the execution and delivery by the Project Participant
of the Agreement, or the performance by the Project
Participant of its obligations thereunder.
6. The authorization, execution and delivery of the
Agreement and compliance with the provisions thereof will
not conflict with or constitute a breach of, or default
under, any instrument relating to the organization, exis-
tence or operation of the Project Participant, or any com-
mitment, agreement or other instrument to which the Project
Participant is a party or by which it or its property is
bound or affected, or any ruling, regulation, ordinance,
judcanent, order or decree to which the Project Participant
(or any of its officers in their respective capacities as
such) is subject or any provision of the laws of the State
of California relating to the Project Participant or its
affairs.
7. There is no action, suit, proceeding, inquiry or
investigation at law or in equity, or before any court;
public board or body, pending or, to my knowledge, threat-
ened against or affecting the Project Participant or any
entity affiliated with the Project Participant 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 powers of the Project Participant
referred to in paragraph 2 above or the validity of the
proceedings taken by the Project Participant in coraysction
with the authorization, execution or delivery of the
Agreement, or wherein any unfavorable decision, ruling or
finding would materially adversely affect the transactions
contemplated by the Agreement, or which, in any way, would
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adversely affect the validity or enforceability of the
Agreement.
The opinion expressed in paragraph 3 above is qualified to
the extent that the enforceability of the Agreement may be limited by
any applicable bankruptcy, insolvency, debt adjustment, moratoria p
reorganization, or other similar laws affecting creditors' rights
generally or as to the availability of any particular remedy.
This opinion is rendered only with respect to the laws of
the State of California and the United States of America, and is
addressed only to the Agency. No other person is entitled to rely on
this opinion, nor may you rely on it in connection with any transac-
tions other than those described herein.
(Note; Where it shall be necessary for the Project
Participant to obtain the authorization or approval of a Federal,
state or local regulatory authority relating: to such Project
Participant's performance under the Agreement, the form of opinions
set forth in paragraphs 2, 3 and 5 hereof may be appropriately
adjusted to reflect the necessity for such authorization or approval
and paragraph 5 hereof shall be adjusted to include therein an excep-
tion thereto specifically describing the requisite authorization or
approval and stating that it has been duly given or obtained and is
in full force and effect.)
Very truly yours,
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NOTICE OF ORDINANCE
CITY OF
ORDINANCE NO.
ADOPTED BY THE LITS
ON , 1984
SUBJECT TO REFERENDUM
COUNCIL OF THE CITY OF
Notice is hereby given that at a regular meeting of the
City Council of the City of (the "City Council.!), held on
_ , 1984, Ordinance No. (the :Ordinance.) .was adopted.
The title and a summary of the Ordinance are set forth below. The
Ordinance is subject to referendum, as discussed below.
Title
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF NOTES BY NORTHERN CALIFORNIA POWER AGENCY
(COMBUSTION TURBINE PROJECT NUMBER ONE).
Sumary
Pursuant to the Ordinance, the City Council has authorized
the issuance and sale by Northern California Power Agency
(the "Agency") of its notes and other evidences cf indebtedness
(including renewal notes) ("Notes:), to be issued, from time to time,
in one or more installments, in- an estimated aggregate principal
amount outstanding at any one time in accordance with their- terms of
$130,000,000. The actual interest rates on each installment of such
Notes or the method of determining such rates will be determined by
the Commission of the Agency in accordance with law at the time of
issuance of such installment. Notwithstanding such maximum aggregate
principal amount of Notes,. the Agency is authorized, pursuant to the
Ordinance, to issue additional principal amounts of its Notes if and
to the extent required to complete the financing of studies, the
acquis:�+^-: of options, permits and other preliminary coats to he
incurred prior to the undertaking of the construction or acquisition
of the Project or to complete the temporary financing of costs of
acquisition and construction of the Project discussed below.
The Agency was created pursuant to a Joint Powers
Agreement, as amended (the ."Agreement."), heretofore entered into
between the City of and certain other public agencies cre-
ated pursuant to the laws of the State of California (collectively,
the !MembersZ) pursuant to the provisions relating to the joint exer-
cise -of powers found in Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California, as amended (the Joint
Powers Act:). The Agency is a public entity separate and apart frac
the Members. The Agency, in accordance with the Joint Powers Act and
the Agreement, has entered or will enter into agreements to acquire
and construct (or to cause to be acquired and constructed) a project
for the generation and transmission of electric energy consisting of
not more than seven 24 -megawatt combur -ton turbine generating units
or such lesser number of units, but no. ',*ss than three, as will be
determined in accordance with the terms and conditions of the Third
V 1W"
Phase Agreements (as hereinafter defined) and related facilities,
including electric facilities necessary for the Project to intercon-
nect with the adjacent electric system, and all rights, properties
and improvements necessary therefor, including fuel and water facili-
ties and resources, and capital improvements that may be constructed
from time to time (the "Project"). The Agency has entered or will
enter into one or more agreements (the "Third Phase Agreements") with
certain entities (including two or more of the Members), pursuant to
which the entities entering into such Third Phase Agreements with the
Agency (the "Participants") will, in the aggregate, purchase options
and/or rights to purchase and/or receive 1008 of the capacity and
energy of the Project. The City Council heretofore has authorized,
by ordinance, the issuance and sale by the Agency of its Acquisition
Bonds to provide funds for the financing of the acquisition and con-
struction of the Project. The principal of and interest on the
Acquisition Bonds are to be payable from Funds held in trust for the
benefit of the holders of such Binds and from revenues of the Agency
from the Project, including payments to be made by the Participants
under the Third Phase Agreements.
Neither the payment of principal of the Notes nor any part
thereof nor interest thereon will constitute a debt, liability or
obligation of the City of .s nor does the Ordinance commit
the City of to take or pay for any capacity or energy of
the Project. The City Council has determined that the financing of
the acquisition and construction of the Project is appropriate to
assist the City in meeting the future power needs of its customers
for electric energy.
The Notes will mature within seven Years from the date of
issuance thereof and will bear interest at the probable or antici-
pated rate of 118 per annum.
THE AGENCY PROPOSES TO TSSUE, IN ACCORDANCE WITH THE AGREE-
MENT AND THE JOINT POWERS ACT, ITS NOTES (INCLUDING RENEWAL NOTES)
FOR THE PURPOSE OF FINANCING STUDIES, THE ACQUISITION OF OPTIONS,
PERMITS, AND OTHER PRELIMINARY COSTS TO BE INCURRED PRIOR TO THE
UNDERTAKING OF THE CONSTRUCTION OR ACQUISITION OF THE PROJECT AND FOR
THE PURPOSE OF PROVIDING TEMPORARY FINANCING OF COSTS OF ACQUISITION
AND CONSTRUCTION OF THE PROJECT. THE PRINCIPAL OF AND INTEREST ON
THE NOTES ARE TO BE PAYABLE FROM THE PROCEEDS OF RENEWAL NOTES AND
FROM THE PROCEEDS OF THE PUBLIC POWER REVENUE BONDS AND, TO THE
EXTENT NOT SO PAID, MAY BE PAYABLE FROM REVENUES OF THE AGENCY FROM
THE PROJECT, INCLUDING PAYMENTS TO BE MADE BY THE PARTICIPANTS UNDER
THE THIRD PHASE AGREEMENTS.
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THE ORDINANCE AUTHORIZING THE ISSUANCE OF THE NOTES IS
SUBJECT TO REFERENDUM. UPON PRESENTATION (WITHIN TEE TIME PERIOD
SPECIFIED BY LAW) OF A PETITION (BEARING SIGNATURES. IN AT LEAST THE
NUMBER REQUIRED BY THE LAW) PROTESTING: AGAINST THE ADOPTION OF THE
ORDINANCE, THE CITY COUNCIL IS REQUIRED TO RECONSIDER THE ORDINEANCE.
THEREUPON, IF THE CITY COUNCIL DOES NOT ENTIRELY REPEAL THE
ORDINANCE, THE ORDINANCE SHALL BE SUBMITTED (UNDER BALLOT WORDING
PRESCRIBED BY L'S%i) TO THE VOTERS AT A REGULAR OR SPECIAL ELECTION AND
THE ORDINANCE SHALL NOT BECOME EFFECTIVE UNTIL A MAJORITY OF THE
VOTERS VOTING ON THE ORDINANCE VOTE IN FAVOR OF IT. THE FOREGOING
DESCRIPTION OF THE PROCEDURES FOR REFERENDUM IS BASED UPON THE APPLI-
CABLE REFERENDUM PROVISIONS OF THE CALIFORNIA ELECTIONS CODE AND THE
CALIFORNIA GOVERNMENT CODE. REFERENCE IS MADE TO THE CALIFORNIA
ELECTIONS CODE AND THE CALIFORNIA GOVERNMENT CODE FOR A COMPLETE
STATEMENT OF SUCH PROVISIONS.
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ORDINANCE NO.
M
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
, CAI, I FORN IA, APPROVING THE TERMS
AND CONDITIONS OF AN AGREEMENT AMONG NORTH ERN
CALIFORNIA POWER AGENCY AND CERTAIN PROJECT
PARTICIPANTS AND APPROVING THE EXECUTION OF AND
DELIVERY OF SAID AGREEMENT BY OFFICERS OF THE
CITY OF
WHEREAS, pursuant to the provisions relating to joint exer-
cise of powers found in Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California, as amended (the "Joint
Powers Act ") , the City of ( the "City") and certain
other public agencies created pursuant to the laws of the State of
California (collectively, the *Members*), have enteredinto a Joint
Powers Agreement (the "Agreement") creating Northern California Power
Agency (the "Agency") , a public entity separate and apart from the
Members; and
WHEREAS, in accordance with the Agreement and the Joint
Powers Act the Agency proposes to acquire and construct or cause to
be acquired and constructed and to operate or cause to be operated a
project ( the "Project") consisting of not more than seven 24 -megawatt
combustion turbine generating units or suck lesser number of units,
but not less than three, as will be deterrined in accordaa ce with the
terms and conditions of the Third Phase Agreement (as hereinafter
defined) , and related facilities, including electric facilities nec-
essary for the Project to interconnect with the adjacent electric
system, and all rights, properties and improvements necessary there-
for, including fuel and water facilities and` resources, and: capital
improvements that may be constructed from time to time.
W-HEREAS, the City has need for an economical and reliable
source of electric power and energy to meet the demands of the cus-
tomers of its electric system; and
WHEREAS, this City Council finds and determines that it is
in the best interests of the customers of the electric system of the
City for the City to enter into the Agreement for Construction,
Operation and Financing of Combustion Turbine Project Number One (the
"Third Phase Agreement") in substantially the form submitted to this
City Council and dated for convenience as of July 1 , 1984; and
WHEREAS, this City Council finds and determines that the
purchase of electric capacity and energy of the Project from the
Agency on the terms and conditions set forth in the Third Phase
Agreement is necessary to supply the customers of the electric system
of the City with electricity; and
WHEREAS, payments by the City pursuant to the Third Phase
Agreement will be used in part by the Agency for payment of principal
of and interest on its bonds, notes or other evidences of
indebtedness issued in connection with the construction, operation
and financing of the Project;
NOW, THEREFORE, the City Council of the City of
does ordain as follows
1. The City Council hereby approves the act of entering
into the Third Phase Agreement and the terms and conditions of the
Third Phase Agreement (including the Pro4ect Entitlement Percentage
of the City set forth in each of Appendi( is A-1 through A-5 thereto)
in substantially the form submitted to this City Council be, and the
same are hereby, approved.
2. The Project Entitlement Percentage of the City as set
forth in each of Appendices A-1 through A-5 to said Third Phase
Agreement may be increased to such percentage, not to exceed an
increase of percent ( _ %) of the largest Project Entitlement
Percentage indicated for the City in any of Appendices A-1 through
A-5 of the Third Phase Agreement, as shall be determined by the
of the City. In addition to any changes authorized by the
immediately preceding sentence, the City hereby authorizes and
approves any other amendment to any or all of Appendices A-1 through
A-5 of the Third Phase Agreement as to Project Participants (as
defined in the Third Phase Agreement) other than the City necessary
so that the Project Entitlement Percentages of all the Project
Participants shall equal one hundred percent (100%) .
3. The City is hereby authorized to enter into the Third
Phase Agreement and the and the are
hereby authorized to execute and deliver the Third Phase Agreement by
and on behalf of the City with such changes, insertions and omissions
as may be approved by the , said execution being conclusive
evidence of such approval.
4. Pursuant to Section 54241 of the Government Code of the
State of California, this Ordinance is subject to the provisions for
referendum applicable to the City.
5. The City Clerk shall certify to the enactment of this
Ordinance and shall cause this Ordinance to be published in accor-
dance with Section 54242 of the Government Code of the State of
California.
6. Thirty (30) days from and after its enactment, this
Ordinance shall take effect and be in full force, in the manner pro-
vided by law.
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A
e
ADOPTED by the City Council and signed by the
and attested by the this day
of , 1984.
Attests
( SEAL)
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ii
(Note: This Ordinance to be adopted before Notes Ordinance.)
ORDINANCE NO.
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF PUBLIC
POWER REVENUE BONDS BY NORTHERN CALIFORNIA POWER
AGENCY (COMBUSTION TURBINE PROJECT NUMBER ONE).
WHEREAS, pursuant to the provisions relating to joint exer-
cise of powers found in Chapter S of Division 7 of Title 1 of the
Government Code of the State of California, as amended (the :Joint
Powers Act."), the City of and certain other public -agen-
cies created pursuant to the laws of the State of California
(collectively, the "Members"), have entered into a Joint Powers
Agreement, as an-anded- (the "Agreement,") , creating_ Northern California
Power Agency (the "Agency")-, a public entity, separate and apart from
the Members; and -
WHEREAS, in accordance with the Agreement and the Joint
Powers Act, the Agency has entered or will enter into agreements to
acquire and construct (or to cause to be acquired and constructed-) a
projec'- for the generation and transmission of electric energy con-
sisting of not more than seven 24 -megawatt combustion turbine gener-
ating units or such lesser number of units, but not less than three,
as will be determined in accordance with the terms and conditions of
the Third Phase Agreement (as hereinafter defined) and related°facil-
ities, including electric facilities necessary for the Project to
interconnect with the adjacent electric system, and all rights prop-
erties and improvements necessary therefor, including fuel.and water
facilities and resources, and capital improvements that may be con-
structed from time to time (the "Project")1 and
WHEREAS, the Agency proposes to issue, in accordance with
the Agreement and the Joint Powers Act, from time to time, in one or
more installments, its revenue bonds and other evidences of indebted-
ness ("Acquisition Bonds") to be outstanding at any one time in
accordance with their terms in the estimated maximum aggregate prig-
cipal amount of $130,000,000 for the purpose of providing funds for
the financing of the acquisition and construction of the Project; and
WHEREAS, the Agency also proposes to issue its notes and
other evidences of indebtedness (including renewal notes) (."Notes")
for the purpose of financing studies, the acquisition of options(,
permits, and other preliminary costs to be incurred prior to the
undertaking of the construction or acquisition of the Project and for
the purpose of providing temporary financing of costs of acquisition
and construction of the Project; and
WHEREAS, from time to time, conditions in the tax-exempt
bond market may become favorable for refunding outstanding bonds with
a resulting eavings in debt service costs or other benefits for the
Agency; P..id
WHEREAS, pursuant to Section 6576 of the Joint Powerlt Act,
the Agency may issue from time to time in one or more installments
its refunding bonds ("Refunding Bonds" and together with the
Acquisition Bonds, the "Public Power Revenue Bonds") for the purpose
of redeeming or retiring Acquisition Bonds or Refunding Bonds there-
tofore issued, or other indebtedness theretofore issued for the
Project; and
WHEREAS, the financing of the acquisition and construction
of the Project includes the issuance of Refunding Bonds; and
WHEREAS, notwithstanding the aforesaid estimated maxim -um
aggregate principal amount of Public Power Revenue Bonds proposed to
be issued by the Agency for the Project and to be outstanding at any
one time in accordance with their terms, additional Public Power
Revenue. Bonds may be required to complete the financing of the aoqui-
sition and construction of the Project; and
WHEREAS, the Agency has entered or will enter ..nto one or
more agreements (the "Third Phase Agreements") with certain entities
( including two or more of the Members) , pursuant to which the enti-
ties entering into such Third Phase Agreements with the Agency (the
"Participants") will, in the aggregate, purchase options and/or
rights to purchase and/or receive 100% of the capacity and energy of
the Project; and
WHEREAS, the principal of and interest on the Public Power
Revenue Bonds are to be payable from funds held in trust for the be«-
ef it of the holders of such Bonds and from revenues of the Agency
from the Project, including payments to be made by the Participants
under the Third Phase Agreements; and
WHEREAS, the principal of and interest on the Notes are to
be payable from proceeds of renewal Notes and the proceeds of the
Public Power Revenue Bonds and, to the extent not so paid, may be
payable from revenues of the Agency from the Project, including pay-
ments to be made by the Participants under the Third Phase
Agreements; and
WHEREAS, in accordance with the Section 6547 of the Joint
Powers Act, the exercise by the Agency of its power to issue the
Public Power Revenue Bonds is subject to the authorization of such
issuance by the Participants pursuant to ordinance; ;itd
WHEREAS, neither the payment of principal of the Public
Power Revenue Bonds nor any part thereof nor interest thereon shall
constitute a debt, liability or obligation of the city of ;
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nor does this Ordinance commit the City of __ to take or pay
for any capacity or energy of the Project.
WHEREAS, this City Council has determined that the financ-
ing of the acquisition and construction of the Project by the Agency
is appropriate to assist the City in meeting the future power need's
of its customers for electric energy; and
WHEREAS, this City Council has determined teat the issuance
by the Agency of Refunding Bonds is appropriate to reduce debt ser-
vice cost related to the Project and reduce the costs of financing
the acquisition and construction of the Project payable by the City
under the Third Phase Agreements or to realize other benefits relat-
ing to the Project; and
WHEREAS, this City Council proposes to authorize by ordl,
nance the issuance and sale by the Agency of its Notes, which are
payable trom proceeds of the Acquisition Bonds authorized by this
Ordinance and, to the extent not so paid, may be payable from reve-
nues of the Agency from the Project, including payments received by
the Agency from the Participants under the Thid Phase Agreemsnts.
NOW, THEREFORE, the City Council of Uie City of
does ordain as follows:
1. The issuance and sale by the Agency, from time to
time, in one or more installments, of its Acquisition Bonds
for the financing of the acquisition and construction of
the Project outstanding at any one time in accordance with
their terms in a maximum aggregate principal amount of
$130,000,000 is hereby authorized. Notwithstanding such
maximum aggregate principal amount, the Agency is hereby
authorized to issue additional principal amounts of its
Acquisition Bonds if and to the extent required to complete
the financing of tho acquisition and construction of the
Project. The proceeds from the sale of the Acquisition
Bonds hereby authorized are to be used for the financing of
the acquisition and construction of the Project, incu=ding
interest on such Bonds and deposits to reserves, and to pay
when due the principal, premium, if any, and interest on
the 'Notes of the Agency issued for iha purpose of financing
studies, the acquisition of options, permits, and other
preliminary costs to be incurred prior to the undertaking
of the construction or acquisition of the Project and for
the purpose of providing temporary financing of the costs
of acquisition and construction of the Project. The
Acquisition Bongs hereby authorized, and premium and inter-
est thereon, are to be payable from, and secured by, Iunds
held in trust for the benefit of the holders of Acquisition
Bonds and from revenues of the Agency from the Project,
519
0 r
including payments received by the Agency from the
Participants under the Third Phase Agreements.
2. The issuance and sale by the Agency, from time to
time, in one or more installments, of its Refunding Bonds
is hereby authorized. The estimated maximum aggregate
principal amount of such Refunding Bonds outstanding at any
one time in accordance with their terms shall be an amount
equal to the sum of (i) $130,000,000, being the estimated
maximum aggregate principal amount of Acquisition Bonds
issued and to be issued for the financing of the acquisi-
tion and construction of the Project, plus (ii) the princi-
pal amount of any additional Acquisition Bonds issued to
complete the financing of the acquisition and onstruction
of the Project, plus (iii) such additional amounts, if any,
required to purchase federal securities to implement such
refunding as provided in Sections 53580 to 53585, inclu-
sive, of the Government Cede of the State of California,
plus (iv) such additional amounts, if any, necessary to
provide funds sufficient for the payment of principal,
interest, premium and expenses as provided in Section 6577
of the Government Code of the State of California.
Notwithstanding such estimated maximum aggregate principal
amount, the Agency is hereby authorized to issue additional
principal amounts of its Refunding Bonds if and to the
extent required to complete the financing of the acquisi-
tion and construction of the Project. The proceeds from
the sale of the Refunding Bonds hereby authorized are to be
used for the purpose of redeeming or retiring the
Acquisition Bonds, Refunding Bonds or other indebtedness to
be refunded as aforesaid. The Refunding Bonds hereby
authorized, and premium and interest thereon, are to be
payable from, and secured by, funds held in trust for the
benefit of the holders of the Refunding Bonds ane' from the
revenues of the Agency withrespectto the Project, includ-
ing payments received by the Agency from the Participants
under the Third Phase Agreements.
3. The authorization provided to the Agency by
Section 2 above shall not apply to any installment of
Refunding Bonds unless the Agency shall determinn that a
present value savings of debt service will result frau the
issuance of such Refunding Bonds or that other benefits
relating to the acquisition and construction of the Project
will be realized therefrom.
4. Pursuant to Section 6547 of the Joint Powers Act,
this Ordinance is subject to the provisions for referendum
prescribed by Section 3751.7 of the Elections Code of the
State of California.
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5. The City Clerk shall certify to the enactment, of
this Ordinance and shall cause notice of the same to be
published in accordance with Section 6040.1 of the
Government Code of the State of California.
6. Sixty (60) days from and after its enactment,
this Ordinance shall take effect and be in full forcer in
the manner provided by law.
THE FOREGOING ORDINANCE is approved., enacted and adopted by
the City Council of the City of this day
of , 198-4.
ATTEST:
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IN
[Note: Ordinance to be adopted alter Bonds Ordinance.)
ORDINANCE NO.
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF NOTES BY
NORTHERN CALIFORNIA POWER AGENCY (COMBUSTION
TURBINE PROJECT NUMBER ONE).
WHEREAS, pursuant to the provisions relating to joint exer-
cise of powers found in Chapter 5 of Division T of Title 1 of the
Government Code of the State of California, as amended (the "Joint
Powers Act"), the city of and certain other public -agen-
cies created pursuant to the laws of the State of California
(collectively, the "Members.") , have entered into a Joint Powers
Agreement, as amended- (the "Agreement."), creating Northern California
Power Agency (the "Agency")-, a public entity separate and apart from
the Members; and -
WHEREAS, in accordance with the Agreement and the Joint
Powers Act, the Agency has entered or will enter into agreements- to
acquire and construct (or to cause to be acquired and constructed) a
project for the generation and transmission of electric energy con-
sisting of not more than seven 24 -megawatt combustion turbine gener-
ating units or such lesser number of units,, but not less than three,
as will be determined in accordance with the terms and conditions of
the Third Phase Agreement (as hereinafter defined) and related facil-
ities, including electric facilities necessary for the Project to
interconnect with the adjacent electric system, and all rights, prop-
erties and improvements necessary therefor, including fuel and water
facilities and resources, and capital improvements that may be con-
structed from time to time (the ."'Project"); and
WHEREAS, the Agency proposes to issue, in accordance with
the Agreement and the Joint . Powers Act, from time to time, . in one or
more installments, its notes and other evidences of indebtedness
(including renewal notes) ("Notes") to be outstanding at any one time
in accordance with their terms in the estimated maximum aggregate
principal amount of $130,000,000-; for the purpose of financing
studies, the acquisition of options, permits, and other preliminary
costs to be incurred prior to the undertaking of the construction or
acquisition of the Project and for the purpose of providing temporary
financing of costs of acquisition and construction of the Project;
and
WHEREAS, the Agency proposes to issue its revenue bonds and
other evidences of indebtedness ("Acquisition Bonds") for the purpose
of provid-g funds for the financing of the acquisition and construc-
tion of the Projects and
WHEREAS, notwithstanding the aforesaid estimated maximum
aggregate principal amount of Notes proposed to be issued by the
Agency f or the Project and to be outstanding at any one time in
accordance with their terms, additional Notes may be required to oom-
plete the financing of studies, the acquisition of options, permits
and other preliminary costs to be incurred prior to the undertaking
of the construction or acquisition of the Project or to complete the
temporary financing of costs of acquisition and construction of the
Project; and
WHEREAS, the Agency has entered or will enter into one or
more agreements (the "Third Phase Agreements') with certain entities
( including two or more of the Members), pursuant to which the enti-
ties entering into such Third Phase Agreements with the Agency (the
"Participants") will, in the aggregate, purchase options and/or
rights to purchase and/or receive 100% of the capacity and energy of
the. Project; and
WHEREAS, the Notes are to be renewable from time to time
and the principal of and interest on the Notes are payable frcm pro-
ceeds of renewal Notes and the proceeds of the Acquisition Bonds and,,
to the extent not so paid, may be payable from revenues of the Agency
from the Project, including payments to be made by tht Participants
under the Third Phase Agreements; and
WHEREAS, in accordance with Section 6547 of the Joint
Powers Act, the exercise by the Agency of its power to issue the
Notes is subject to the authorization of such issuance by the
Participants pursuant to ordinance; and
WHEREAS, neither the payment of principal of the Notes nor
any part thereof nor interest thereon shall constitute a debt,
liability or obligation of the City of nor does thi s
Ordinance commit the City of to take or pay for any capac-
ity or energy of the Project; and
WHEREAS, this City Council has determined that the financ-
ing of the acquisition and construction of the Project by the Agency
is appropriate to assist the City in meeting the future power needs
of its customers for electric energy; and
WHEREAS, this City Council has authorized by Ordinance the
issuance and sale by the Agency of its Acquisition Bonds, the pro-
ceeds from the sale of which are to be used for the financing of the
acquisition and construction of the Project, including interest on
such Acquisition Bonds and deposits to reserves, and to pay the prin-
cipal, premium, if any, and interest on the Notes authorized by this
: Ordinance when due.
NOW, THEREFORE, the City Council of the City of
does ordain as follows:
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1. The issuance and sale by the Agency from time to
time, in one or more installments, of its Notes (including
renewal Notes) for the purpose of financing studies, the
acquisition of options, permits and other preliminary costs
to be incurred prior to the undertaking of the construction
or acquisition of the Project and for the purpose of pro-
viding temporary financing of costs of acquisition and cc-.-
struction of the Project, outstanding at any one time in
accordance with their terms in a maximum aggregate princi-
pal amount of $130,000,000 is hereby authorized.
Notwithstanding such maximum aggregate principal amount,
the Agency is hereby authorized to issue additional princi-
pal amounts of Notes if and to the extent required to com-
plete the financing of studies, the acquisition of options,
permits and other preliminary costs to be incurred prior to
the undertaking of the construction or acquisition of the
Project or to complete the temporary financing of costs of
acquisition and construction of the Project. The proceeds
f rom the sale of the Notes hereby authorized are to be used
for the purpose of financing financial feasibility studies,
environmental impact studies and other studies relating to
the Project; the acquisition of options, permits and other
preliminary ccsts to be incurred prior to the undertaking
of the construction or acquisition of the Project and for
the purpose -(%': providing temporary financing of costs of
acquisition and construction of the Project, including
interest on the Notes. The Notes hereby authorized are to
be renewable trom time to time and the principal of such
Notes, and premium, if any, and interest thereon, are to be
payable trom proceeds of renewal Notes and the proceeds of
Acquisition Bonos of the Agency and, to the extent not so
paid, may be payable from revenues of the Agency from the
Project, including payments received by the Agency from the
Participants under the Third Phase Agreements.
2. Pursuant to Section 6547 of the Joint Powers Act,
this Ordinance is subject to the provisions for referendum
prescribed by Section 3751.7 of the Elections Code of the
State of California.
3. The City Clerk shall certify to the enactment of
this Ordinance and shall cause notice of the same to be
published in accordance with Section 6040.1 of the
Government Code of the Stara of California.
4. Sixty (60) days from and after its enactment,
this Ordinance shall take effect and be in full force, in
the manner provided by law.
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THE FOREGOING ORDINANCE is approved, enacted and adopted by
the City Council of the City of this day
of , 1984.
ATTEST:
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I
1
MUDoF- Rose GUTHRIE ALEXANDER S. FERDON
!MEMORANDUM
FOR Project Participants July 12, 1984
NORTHERN CALIFORNIA POWER AGENCY
Ordinances Approving Participation in
Combustion Turbine Project Number One
The Project Participants in Northern California Power
Agency's Combustion Turbine Project Number One must approve their
participation in the Project through the enactment of an ordinance
approving the Combustion Turbine Member Agreement (the ;Agreement
Ordinance), an ordinance approving the Assuance of bonds by NCPA
(the `Bond Ordinance") and an ordinance approving the issuance of
notes by NCPA (the "Note ordinance."). These ordinances are subject
to publication requirements which differ from the standard require-
ments applicable to ordinances normally approved by the Project
Participants. The publication requirements applicable to these ordi-
nances are as follows:
I. Publication Requirements for the Agreement Ordinance
The form of the Agreement Ordinance is enclosed herein, and
is captioned as follows:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ,
CALIFORNIA, APPROVING THE TERMS AND CONDITIONS OF. AN
AGREEMENT AMONG NORTHERN CALIFORNIA POWER AGENCY AND
CERTAIN PROJECT PARTICIPANTS AND APPROVING THE EXECUTION Of
AND DELIVERY OF SAID AGREEMENT BY OFFICERS OF THE CITY OF
The Agreement Ordinance should be published in the same.
manner as all other ordinances of the Project Participant. are
published.
Where the city charter, if any, of a Project Participant
does not require publication after adoption or where the Project
Participant has no procedure for the publication of ordinancee,.then
a special procedure under Section 54242 of the California Governstient .
Code must be followed. Under the special procedure, thae Agreent _.
Ordinance must be published once in a newspaper, of genera] circula-
tion in the city within 15 days after its adoption. Further; . und'er 5
the special procedure, all publications of the Agreement Ordinance;.
must be set in type not smaller than nonpareil type and must be pre.-
ceded by a notice of adoption worded in blackface, nonpareil typa° as
follows:
NOTICE Of ADOPTION OF AN ORDINANCE APPROVING THE EXECUTION''
AND DELIVERY OF THE C014BUSTION TURBINE MEMBER AGREEMENT'
WHEREBY THE CITY ENTERS INTO A FORMAL LEASEBACK AGREEMENT.
WITH NORTHERN CALIFO"IA POWER AGENCY.
I
0
II. Publication Requirements for the Bond Ordinance
The form of the Bond Ordinance is enclosed herein and is
captioned as follows:
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF PUBLIC POWER REVENUE BONDS BY
NORTHERN CALIFORNIA POWER AGENCY (COMBUSTION TURBINE
PROJECT NUMBER ONE).
The Bond Ordinance should be published in the same manner
as all other ordinances of the Project Participants.
In addition, the Notice of Ordinance Subject to Referendum
relating to the Bond Ordinance (the :Bond Notice:) which is enclosed
herein must be published within 15 days after adoption of the Bond
Ordinance in the following manner:
1. The Bond Notice must appear for five consecutive
days in at least one daily newspaper of general
circulation. A ~daily newspaper" is a newspaper of general
circulation that is published on five or more days in a
calendar week.
If no such daily newspaper exists, the Bond Notice
munt be published at least twice in the weekly newspapers
of the area. A "weekly newspaper" is one that is a newspa-
per of ger.�,ral circulation that is published on at Least
one, but leas than five, days in a calendar week.
If thare is no such weekly newspaper, then the Bond
Notice must be posted for not less than two weeks in at
least 15 public places.
2. The Bond Notice must be published in at least
10 -point type.
III. Publication Requirements for the dote Ordinance
The form of the Note Ordinance is enclosed herein and -cap
tioned as follows:
6tDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF NOTES BY NORTHERN CALIFORNIA
POWEI` AGENCY (COMBUSTION TURBINE PROJECT NUMBER ONE) .
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J D
9
The Note Ordinance should be published in the same manner
as all other ordinances of the Project Participants.
In addition, the Notice of Ordinance Subject to Referendum
relating to the Note Ordinance (the "Note Notice:,) which is enclosed
herein must be published within 15 days after adoption of the Note
Ordinance in the following manner:
1. The Note Notice must appear for five consecutive
days in at least one daily newspaper of general
circulation. A "daily newspaper" is a newspaper of general
circulation that is published on Live or more days in a
calendar week.
If no such daily newspaper exists, the Note Notice
must be published at least twice in the weekly newspapers
of the area. A "weekly newspaper" is one'that is a newspa-
per of general circulation that is published on at least
one, but less than five, days in a calendar week.
If no such daily newspaper exists, the Note Notice
must be published at least twice in the weekly newspapers
of the area. A "weekly newspaper" is one that is a newspa-
per of general circulation.that is published on at least,
one, but less than five, days in a calendar week.
If there is no such weekly newspaper, then the Note
Notice must be posted for not less than two weeks in at
least 15 public places.
2. The Note Notice must be published in at least
10 -point type.
Any questions concerning the publication requirements for
the Agreement Ordinance, the Bond Ordinance or the Note Ordinance
should be directed to John Kelly (212-510-7332.) or Jim Anderson
(213-613-1112).
AGREEMENT FOR CONSTRUCTION, OPERATION AND FINANCING
OF COMBUSTION TURBINE PROJECT NUMBER QNB
Dated as of July 1, 1984
By and Among
NORTHERN CALIFORNIA POWER AGENCY
and
CITY OF ALRMEDA
CITY OF HEALDSBW G
CITY OF LODI
CITY OF LOMPOC
CITY OF ROSEVILLE
CITY OF- SANTA aJ RA
CITY OF UKIA8
PLUMAS-SIERRA RURAL ELECTRIC COOPERArIVB
TURLOCK IRRIGATION DISTRICT
TABLE OF CONTENTS
E -T -n
1. Definitions 0 0 0. 01
2. Purpose . .0 0 . . . . . . . 4
3. Construction and Opecation of Project;
Assignment of Agreement . . . . . . . . . 4
4. Obligation to Make Project Capacity and
Energy Available . . . . . . . 4
S. Rates and Charges 0 . . . . . . . . . . 0 5
6. Annual Budget and Billing Statement . . . . . 7
7. Obligation in the Event of De€alit . . . • 8
8. Transfers, Sales and Assignments . . . . . • . 9
9. Surplus Capacity and Energy . . . . . . .10
10. Insurance and Indemnification . . . . 0 . . .11
),I. Project Participant Direction and Review . . .12
12. Term . . . . . . . o o . .13
13. Termination and Amendments o . . . .14
14. Member Service Agreement . . .15
15. Second Phase Agreement . . o . . . .15
16. Miscellaneous . . . . . . . .16
APPENDIX A - Schedule of Project Participants and
Project Entitlement Percentages 0 01
APPENDIX B - Principles of Operation . . . . . 1
APPENDIX C - Form of Opinion of Counsel 9 . . . 1
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4
AGREEMENT FOR CONSTRUCTION, OPERATION AND FINANCING
OF COMBUSTION TURBINE PROJECT NUMBER CSE
This Agreement, dated as of July 1, 1984, by and among
Northern California Power Agency, a joint powers agency of the State
of California (hereinafter called "NCPA") and the other entities exe-
cuting this Agreement,
WITNESSETH:
WHEREAS, NCPA proposes to acquire and construct or cause to
be acquired and constructed and to operate or cause to be operated
the Project (either by the construction of. facilities by NCPA or
jointly with others, or by the purchase of an ownership interest or
capacity right in such facilities construete(' by others, or both-)
described herein; and'
WHEREAS, NCPA and certain of its members entered into an
"Agreement for Financing of Planning and Development Activities for
Construction of Combustion Turbine Generating Facilities* dated as of
August 1, 1983, providing for the financing of certain planning and
development activities in connection with the Project (said
Agreement, as it may be amended and supplemented from time to time,
being hereinafter called the "Second Phase Agreement") and -
S WHEREAS, this Agreement is the "Third Phase Agreement" con-
templated in the Second Phase Agreement; and
WdEREAS, NCPA and its members have entered into one of
three Member Service Agreements, effective February 12, 1981 (said
Agreements, as they may be amended and supplemented from time to
time, being hereinafter called the "Member Service Agreement") , which
provide for services which NCPA shall perform for its members, among
other things, and for the provisions to be contained in second and
third phase agreements, such as the Second Phase Agreement, and this
Agreement; and
WHEREAS, NCPA and the Project Participants (as hereinafter
defined) now wish to enter into this Agreement to provide further for
the construction, operation and financing of the Project, the sale by
NCPA of capacity and energy of the Project to the Project
Participants, and the security for the Bonds to be issued to finance
the Project;
NOW THEREFORE, the parties hereto do agree as follows:
1. Definitions. The following terms shall, for all pur-
poses of this Agreement, have the following meanings:
(a) "Bond Resolution" means an instrument providing for the
issuance of Bonds and the terms thereof and may be a resolution,
indenture of trust, order, agreement or other instrument.
(b) "Bonds" means bonds, notes or other evidences of
indebtedness of NCPA (or of a nonprofit corporation on behalf of
NCPA) issued to finance or refinance the Project and to finance or
refinance any contributions -in -aid -of -construction for' construction
necessary for the adjacent electric system to interconnect with the
Project and includes additional bonds to complete the Project.
(c) "Electric System" means all properties and assets, real
and personal, tangible and intangible, of the Project Participant now
or hereafter existing, used or pertaining. to the generation, trans-
mission, transformation, distribution and sale of electric capacity
and energy, including all additions, extensions, expansions., improve-
ments and betterments thereto and equippings thereof; provided, how-
ever, that to the extent the Project Participant is not the sole
owner of an asset or property or to the extent that an asset or prop-
erty is used in Part for the above described electric purposes, only
the Project Participant's ownership interest in such asset or prop-
erty or only the part of the asset or property so used for electric
purposes shall be considered to be part of its Electric System.
(d) "Full Operation Date" means the first date when the
first unit of the Project is capable of producing and delivering
capacity and energy in commercial operation, as shall be determined
by the Commission of NCPA in accordance with prudent utility
practices.
(e) "Project" means a project consisting of (A) W three
24 -megawatt combustion turbine generating units, located one unit
each in the Cities of Alameda, Lodi and Roseville, or (ii) if the
City of Santa Clara executes this Agreement on or before
September 15, 1984, four 24 -megawatt combustion turbine generating
units, located one unit each in the Cities of Lodi and Roseville and
two units located in the City of Alameda, or (iii) if the City of
Santa Clara executes this Agreement on or before September 15, 1984
and if NCPA shall, before the first issuance of Bonds for the
Project, approve a fifth combustion turbine generating unit, five 24 -
megawatt combustion turbine generating units, four units to be
located as described in (A)(ii) above and the fifth unit to be
located at a site to be determined by NCPA or Civ) if both the City
of Santa Clara and Turlock Irrigation District execute this Agreement
on or before September 15, 1984 and if NCPA shall, before the first
issuance of Bonds for the Project approve a fifth and sixth combus-
tion turbine generating unit, six 24 -megawatt combustion turbine gen-
erating units, four units to be located as described in (A)(ii) above
and the fifth and sixth units to be located at sites to be determined
by NCPA or M if both the City of Santa Clara and Turlock Irrigation
District execute this Agreement on or before September 15, 1984 and
-2-
if NCPA shall, before the first issuance of Bonds for the Project,
approve a fifth, sixth and seventh combustion turbine generating
unit, seven 24 -megawatt combustion turbine generating units, four
units to be located as described in (AMD above and the fifth,
sixth and seventh units to be located at sites to be determined by
NCPA and (B) related facilities, including electric facilities neces-
sary for the Project to interconnect with the adjacent electric
system, and all rights, properties and improvements necessary there-
for, including fuel and water facilities and resources, and capital
improvements that may be constructed from time to time.
(f) "Project Entitlement Percentage" means, with respect to
each Project Participant, the percentage of the total capacity and
energy of the Project to which such Project Participant is entitled
pursuant to the terms of this Agreement. The Project Entitlement
Percentage for each Project Participant shall be the percentage set
forth opposite the name of such Project Participant in the appropri-
ate Appendix A hereto determined by the number of combustion turbine
units compr13ing the Project at the time of the first issuance of
Bonds, as such Appendix A shall be amended from time to time in
accordance with this Agreement.
(g) "Project Participants" means those entities executing
this Agreement, together in each case with their respective succes-
sors or assigns.
(h) "Revenues" means all income, rents, rates, fees,
charges, and other moneys derived by the Project Participant from the
ownership or operation of its Electric System, including, without
limiting the generality of the foregoing, (i) all income, rents,
rates, fees, charges or other moneys derived from the sale, furnish-
ing, and supplying of the electric capacity and energy and other ser-
vices, facilities, and commodities sold, furnished, or supplied
through the facilities of its Electric System, (ii) the earnings on
and income derived from the investment of such income, rents, rates,
fees, charges or other moneys to the extent that the use of such
earnings and income is limited by or pursuant to law to its Electric
System and (iii) the proceeds derived by the Project Participant
directly or indirectly from the sale, lease or other disposition of
all or a part of the Electric System as permitted hereby, but the
term "Revenues" shall not include (y) customers' deposits or any
other deposits subject to refund until such deposits have become the
property of the Project Participant, or (z) contributions from cus-
tomers for the payment of costs of construction of facilities to
serve them.
(i) "Trustee" means the entity or entities designated by
NCPA pursuant to any Bond Resolution, to administer any funds or
accounts required by such Bond Resolution or otherwise.
-3-
0*1
2. Purpose. The purpose of this Agreement is to sell
capacity and energy of the Project to the Project Participants, to
provide the terms and conditions of such sale and to provide for the
financing of the Project.
3. Construction and Operation of Project; Assignment of
Agreement. NCPA will use its best efforts to cause or accomplish
the construction, operation and financing of the Project, the obtain-
ing of all necessary authority and rights, and the performance of all
things necessary and convenient therefor. Each Project Participant
will cooperate with NCPA to that end, and will give any and all clar-
ifying assurances by supplemental agreements that may be requested by
NCPA's legal counsel to make the obligations herein more specific and
to satisfy legal requirements and provide security for the Bonds.
NCPA may pledge and assign to the Trustee for any Bonds,
this Agreement and all of its right, title and interest in, to and
under this Agreement, including NCPA's rights to receive all or any
portion of the payments hereunder from Project Participants. Upon
notice from NCPA each Project Participant shall make payments due by
it hereunder directly to any Trustee for any Bonds specified in such
notice. Such pledge and assignment by NCPA shall be made effective
for such time as NCPA shall determine and provide.
4. Obligation to Dake Project Capacity and Energy
Available. (a) Pursuant to the terms of this Agreement, NCPA shall
make available or cause to be made available and each Project
Participant shall be entitled to receive such Project Participant"s
Project Entitlement Percentage of capacity and energy of the Project
in accordance with the operating principles listed in Appendix B
hereto (as the same may be amended and supplemented as in this
Agreement provided).
(b) NCPA will remain available to do all things necessary
and possible to deliver or ca -use to be delivered to or for the
Project Participants, %n accordance with their respective Project
Entitlement Percentages, the capacity and energy of the Project.
Such delivery shall be at points mutually agreed upon by NCPA and
each Project Participant. Such agreement shall not be unreasonably
withheld by either NCPA or a Project Participant. NCPA will remain
available to make or cause to be made all necessary and possible
arrangements for transmission of such capacity and energy to such
points over the lines of NCPA or others, and for additional capacity
and energy required from others as reserves against planned or emer-
gency service interruptions with respect to the Project. Wheeling or
delivery services by NCPA with related energy sales to the Project
Participants shall be as provided in service schedules as povided in
Article III of the Member Service Agreement for Project Participants
who are members of NCPA and in separate agreements for Project
Participants who are not members of NCPA.
5. Rates and Charges. (a) Commencing on the Full
Operation Date, NCPA shall fix charges to the Project Participants
under this Agreement in accordance with this Section to produce reve-
nues to NCPA for capacity and energy of the Project equal to the
amounts needed by NCPA to meet the total costs of NCPA to provide
capacity and energy from the Project, including but not limited to:
( i) debt service on the Bonds, reserves for the payment of debt ser-
vice on the Bonds and other payments required under the Bond
Resolution other than the payments described in (ii) and ( iii) below;
(ii) any other operation, maintenance and replacement costs of the
Project, including the cost of fuel, a reasonable reserve for contin-
gencies, and all other Project costs not described in (i) above or
(iii) below and (iii) the costs and expenses of 'CPA for delivering
Project capacity and energy pursuant to Section 4(b) hereof. NCPA
shall fix charges to the Project Participants to produce revenues to
NCPA from the Project to meet the costs described in (i) above based
on Project Entitlement Percentages applied to such costs of the
Project. The costs described in (ii) above will be divided between
capacity charges and energy charges as provided in Appendix B hereto
(as the same may be amended and supplemented as in this Agreement
provided) . Capacity charges for the costs described in (ii) above
shall be based on Project Entitlement Percentages appliedto such
costs. Energy charges for the costs described in (ii) above shall be
based on actual energy sales of the Project. If NCPA delivers
Project capacity and energy to or for any Project Participant pursu-
ant to Section 4(b) hereof, NCPA shall fix charges to each such
Project Participant so that such Project Participant shall pay only
the costs described in (iii) above which are attributable to such
Project Participant.
( b) To the extent that the funds provided under Section
5(a) of this Agreement are at any time not sufficient for such pur-
poses, each Project Participant shall pay to NCPA an amount equal to
such Project Participant's Project Entitlement Percentage of the
total cost to pay all amounts of principal and interest on the Bonds,
reserves for the payment of debt service and other, payments required
under all Bond Resolutions. The obligation of this Section 5(b) is
incurred by each Project Participant for the benefit of future hold-
ers of Bonds, and shall commence and continue to exist and be honored
by the Project Participants whether or not capacity and energy from
the Project. is made available or furnished to them at all times or at
all (which provision may be characterized as an obligation to pay all
such costs on a take -or -pay basis whether or not capacity and energy
from the Project is made available or delivered or provided) .
(c) Notwithstanding that NCPA may utilize services under
the PG and E Interconnection Agreement among Pacific Gas and Electric
Company, NCPA and certain of the Project Participants (the "PG and E
Interconnection Agreement") in complying with Section 4(b) hereof,
-5-
f)
any payments required to be made by, or costs incurred by NCPA or the
Project Participants pursuant to Section 9.5 of the Interconnection
Agreement shall not be made under this Agreement.
(d) Each Project Participant shall make payments under this
Agreement solely from the Revenues of, and as an operating expense
of, its Electric System. Nothing herein shall be construed as pro-
hibiting any Project Participant from using any other funds and reve-
nues for purposes of satisfying any provisions of this Agreement.
(e) Each Project Participant shall make payments under this
Agreement whether or not the Project or any part thereof is com-
pleted, operable, operating or retired and notwithstanding the sus-
pension, interruption, interference, reduction or curtailment of
Project output or. the capacity and energy contracted for in whole or
in part for any reason whatsoever. Such payments are not subject to
any reduction, whether by offset or otherwise, and are not condi-
tioned upon performance by NCPA or any other Project Participant
under this Agreement or any other agreement.
(f) No Project Participant shall be liable under this
Agreement for the obligations of any other Project Participant. Each
Project Participant shall be solely responsible and liable for per-
formance
er-
formance of its obligations under this Agreement and for the mainte-
nance and operation of its respective properties not included as part
of the Project. The obligation of each Project Participant to make
payments under this Agreement is a several obligation and not a joint
obligation with those of the other Project Participants.
(g) Each Project Participant covenants and agrees to estab-
lish and collect fees and charges for electric capacity and energy
furnished through facilities of its Electric System sufficient to
provide Revenues adequate to meet its obligations under this
Agreement and to pay any and all other amounts payable from or con-
stituting a charge and lien upon any or all such Revenues; provided
that the obligation of the Pre%ject Participant to make payments under
this Section 5 shall not constitute a legal or equitable pledge,
charge, lien or encumbran-ce upon any property of the Project
Participant or upon any of its income, receipts or revenues, except
the Revenues of its Electric System; and further provided that nei-
ther the Project Participant nor the State of California or any
agency or political subdivision thereof shall ever be -obligated or
compelled to levy ad valorem taxes to make the payments provided for
in this Section 5.
(h) Each Project Participant covenants and agrees that it
shall, at all times, operate the properties of its Electric System
and the business in connection therewith in an efficient manner and
-6 -
M
0 10
at reasonable cost and shall maintain its Electric System in good
repair, working order and condition.
6. annual Budget and Billing Statement. Prior to t h e
beginning of each NCPA fiscal year, the Commission of NCPA will adopt
an annual budget for such fiscal year for costs and expenses relating
to the Project and shall promptly give notice to each Project
Participant of its projected share of such costs and expenses.
A billing statement prepared by NCPA will be sent to each
Project Participant not later than the fifteenth (15th) day of each
calendar month showing the amount payable by such Project Participant
of costs payable under Section 5(a) of this Agreement for the preced-
ing calendar month, any amount payable by such Project Participant as
its Project Entitlement Percentage of costs payable under Section
5(b) of this Agreement, and the amount of any credits or debits as a
result of any appropriate adjustments. Amounts shown on the billing
statement are due and payable thirty (30) days after the date of the
billing statement: Any amount die and not paid by the Project
Participant within thirty (30) days after the date of the billing
statement shall bear interest from the due date until paid at an
annual rate to be established by the Commission of NCPA at the time
of adoption of the then most recent annual budget.
on or bef ore the f irst day of the fif th calendar month
after the end of each NCPA fiscal year, NCPA shall submit to each
Project Participant a statement of the aggregate monthly costs
incurred by NCPA in providing capacity and energy of the Project,
including all costs specified herein for such fiscal year. If a
Project Participant's share of such actual aggregate monthly costs,
determined as provided in this Agreement, and any other amounts pay-
able for such fiscal year, exceed the billings to the Project
Participant, the deficiency shall be added to the Project
Participant's billing statements for such period (not to exceed the
immediately succeeding six months) and in such- amounts as shall be
determined by NCPA. If a Project Participa.it's share of such actual
aggregate monthly costs and any other amounts payable for such fiscal
year are less than the billings to the Project Participant, such
excess shawl be credited to the Project Participant's billing state-
ments for such period (not to exceed the immediately succeeding six
months) and in such amounts as shall be determined by NCPA.
If a Project Participant questions or disputes the correct-
ness of any billing statement by NCPA, it shall pay NCPA the amount
claimed when die and shall within thirty (30) days of the receipt of
such billing statement request an explanation from NCPA. If the bill
is determined to be incorrect, NCPA will issue a corrected bill and
refund any amount which may be due the Project Participant which
refund shall bear interest from the date NCPA received payment until
-7-
the date of the refund at an annum rate to be established by the
Commission of NCPA at the time of adoption of the then most recent
annual budget. If NCPA and the Project Participant fail to agree on
the correctness of a bill within thirty (30) days after the Project
Participant has requested an explanation, the parties shall promptly
submit the dispute to arbitration under section 1280 at =. of the
Code of Civil Procedure of California.
7. Obligation in the Event of Default. (a) Upon fail-
ure of any Project Participant to make any payment in full when due
under this Agreement, NCPA shall make written demand upon such
Project Participant, and if said failure is not remedied within
thirty (30) days from the date of such demand, such failure shall
constitute a default at the expiration of such period. Notice of
such demand shall be provided to each other Project Participant by
NCPA.
(b) Upon the failure of any Pr -o j ect Participant to make any
payment which failure constitutes a default -under this Agreement,
NCPA shall use its best efforts to sell and transfer for the default-
ing Project Participant's account all or a portion of such Project
Participant's Project Entitlement Percentage of capacity and/or
energy of the Project for all or a portion of the remainder of the
term of this Agreement. Other Project Participants shall have a
right of first refusal in proportion to their respective Project
Entitlement Percentages, and other NCPA members shall have the second
right, to purchase all or a portion of a defaulting. Project
Participant's Project Entitlement Percentage of capacity and/or
energy of the Project for all or a portion of the remainder of the
term of this Agreement.. NCPA shall not sell such capacity and:/or
energy, directly or indirectly, in any manner, and shall not take or
Permit to be taken any other- action or actions, which would result in
any of the Bonds being treated as an obligation not described in
Section 103(a) of the Internal Revenue Coae of 1954, as amended, by
reeson of classification of such Bond as an "industrial development
bond" within the meaning of Section 103(b) of said Code.
Notwithstanding that all or, aiq portion of the Project Participant's
Project Entitlement Percentage of capacity and/or energy of the
Project is so sold or tra-nsferred, the Project Participant shall
remain liable to NCPA to pay the full amount of its share of monthly
Project costs, determined as provided in this Agreement as if such
sale or transfer had not been made, except that such liability shall
be reduced to the extent that NCPA shall receive payment from the
purchaser or transferee thereof.
(c) Upon the failure of any Project Participant to make any
payment wM ch failure constitutes a default under this Agreement and
causes NCPA to be in default under any Bond Resolution, NCPA may (in
addition to the remedy provided by subsection (b) of this Section 7)
-8-
V
terminate the provisions of this Agreement insofar as the same
40 entitle the defaulting Project Participant to its Project Entitlement
Percentage of capacity and energy of the Project. Irrespective of
such termination, the obligations of the Project Participant under
this Agreement shall continue in full force and effect.
(d) Upon the failure of any Project Participant to make any
payment which failure constitutes a default under this Agreement, and
except as sales or transfers are made pursuant to subsection (b) of
this Section 7, (i) the Project Entitlement Percentage of each nonde-
faulting Project Participant shall be automatically increased for the
remaining term of this Agreement pro rata with those of the other
nondefaulting Project Participants and (ii) the defaulting; Project
Participant's Project Entitlement Percentage sht.11 ( but only for pur-
poses of computing the respective Project Entitlement Percentage or
the nondefaulting Project Participants) be reduced correspondingly;
provided, however, that the sum of such increases for any nondefault-
ing Project Participant shall not exceed, without written consent of
such nondefaulting Project Participant, an accumulated maximum of 2'5%
of the nondefaulting Project Participant's original Project
Entitlement Percentage, as initially set forth in the appropriate
Appendix A hereto.
(e) If a Project Participant shall fail or refuse to pay
any amounts due to NCPA, the fact that other Project Partici pants
have increased their obligation to NCPA pursuant to this Section 7
shall not relieve the defaulting Project Participant of its liability
under this Agreement, and any Project Participant increasing such
obligation shall have a right of recovery from the defaulting Pr-oj;ect
Participant to the extent of such respective increase in obligation
caused by the defaulting Project Participant.
(f) In addition to any rights which a Trustee may have as
an assignee pursuant to Section 3 hereof, each Trustee shall be a
third party beneficiary hereof and shall have the right as a third
party beneficiary to initiate and maintain suit to enforce this
Agreement to the extent provided in the related Bond Resolution.
8. Transfers, Sales and Assignments. E a c h P r o j e c t
Participant has full and unfettered rights to make transfers, sales,
assignments and exchanges (collectively "transfers") of such Project
Participant's Project Entitlement Percentage of Project capacity,
energy and rights thereto except as expressly provided otherwise in
this Agreement; provided that such transfers shall not affettt any of
the obligations of the Project Participant under this Agreement.
(b) No Project Participant shall transfer ownership of all
or substantially all of its Electric System to another entity until
it has first complied with the provisions of this subsection (b) . A
-9-
1k AIPj
consolidation with another governmental entity or change in
governmental form is not deemed a transfer of ownership.
(1) Such d_ sposi tion or transfer shall be under
terms and conditions that provide assurance that the obli-
gations of the transferring Project Participant under this
Agreement, and that NCPA's obligations under this
Agreement, each Bond Resolution, and any other agreements
made or to be made by NCPA to carry out the Project, will
be promptly and adequately met. NCPA may require that suf-
ficient moneys to discharge such obligations of the trans-
ferring Project Participant be irrevocably set aside and
maintained in a trust account, as a condition to the trans-
fer of the Electric System, if no other adequate assurance
is available.
(2) The transferring Project Participant shall give
ninety (90) days advance written notice to NCPA of any pro-
posed transfer pursuant to this subsection W. The appro-
priate Appendix A to this Agreement shall be amended as
appropriate to reflect any, transaction pursuant to this
subsection W.
(c) Notwithstanding any other provision of this Agreement,
no Project Participant shall transfer, assign, sell or exchange any,
portion of its Project Entitlement Percentage, directly or indirect-
ly, in any manner, and shall not take or permit to be taken any other
action or actions, which would result in any of the Bonds being
treated as an obligation not described in Section 103(a) of the
Internal Revenue Code of 1954, as amended, by reason of classifica-
tion of such Bond as an "industrial development bond" within the
meaning of Section 103(b) of said Code.
9. Surplus Capacity and Energy. To. the extent the terms
of Appendix B hereto (as the same may be amended and supplemented as
in this Agreement provided) do not provide for such sales, when- a
Project Participant has surplus capacity and/or energy from the
Project, NCPA shall, unless otherwise requested by such Project
Participant, use its best efforts to sell such surplus capacity
and/or energy on behalf of such Project Participant in the following
manner:
(a) NCPA shall use its best efforts to sell such surplus
capacity or capacity and energy at a price at least equal to the
Project Participant's cost therefor, except as provided in (a}
below. NCPA shall not sell capacity and energy or energy only at
less than the Project Participant's marginal cost of producing such
energy.
-10-
PW -A
(b) Other Project Participants shall have a right of first
refusal in proportion to their respective Project Entitlement
Percentages, and other NCPA members shall have the second right, at
the sales prices set forth in subsections (c) and (d) of this Section
9.
(c) If NCPA can purchase equivalent capacity or capacity
and energy from other sources for less than the Project Participant's
cost for capacity or capacity and energy from the Project, the sales
price of such capacity or capacity and energy to another Project
Participant or NCPA member shall be equal to the cost of purchasing
the capacity or capacity and energy from such other source.
(d) If the alternative cost of purchasing capacity and/or
energy for other Project Participants or members of NCPA is more than
the Project Participant's cost of capacity and/or energy from the
Project, then the sales price shall be the Project Participant's cost
of capacity and/or energy from the Project plus- one-half the differ-
ence between the Project Participant's cost of capacity and/or energy
from the Project and the cost of capacity and/or energy from an
alternative source.
(e) Notwithstanding the sale by NCPA of all or a portion of
a Project Participant's surplus Project Entitlement Percentage of
capacity and/or energy, the Project Participant shall remain liable
to NCPA to pay the full amount= of its share of monthly Project costs,
determined as provided in this Agreement, as if such sale had not
been made, except that such liability shall be reduced to the extent
that NCPA shall receive payment from the purchaser thereof.
(f) NCPA shall not sell such capacity and/or energy,
directly or indirectly, in any manner, and shall not take or permit
to be taken any other action or actions, which would result in any of
the Bonds being treated as an obligation not described in
Section 103(a) of the Internal Revenue Code of 1954, as amended-, by
reason of classification of such Bond as an "industrial development
bond" within the meaning of Section 103(b) of said Code.
10. Insurance and Indennif i cation. NCPA shall obtain or
cause to be obtained insurance for the Project covering such risks
( including earthquakes) , in such amounts and with such deductibles as
shall be determined by NCPA. NCPA shall indemnify and hold harmless
each Project Participant from any liability for personal injury or
property damage resulting from any accident or occurrence arising out
of or in any way related to the construction or operation of the
Project; provided, however, that such indemnification by NCPA shall
be limited to the extent the proceeds of insurance and other moneys
available to NCPA hereunder are available therefor.
-11-
11. Project Participant Direction and Review. (a) All
actions to be taken by NCPA and its Commission shall be taken at the
direction of the Project Participants and NCPA shall co» ?ly with all
lawful directions of the Project Participants with respect to this
Agreement, while not stayed or nullii:ied, to the fullest extent
authorized by law and to the extent such directions are not inconsis-
tent with and do not impair NCPA's ability to perfornc its obligations
under any Bond Resolution. Actions by the Project Participants pur-
suant to this Agreement, including giving above directions to NCPA,
will be taken only at meetings of the authorized representatives of
the Proje::t Participants ( including the representatives of the
Project Participants on the NCPA Commission and their designated
alternates while acting as such alternates) duly called and held pur-
suant to the Ralph M. Brown Act or other laws applicable to such
meetings, in effect from time to time. Each of the rules set forth
in subsection (b) of this Section 11 shall apply to any meeting held
by the Project Participants pursuant to this subsection (a<) and to
any action taken at such meeting. Any references in subsection (b)
of this Section 11 to "Commission" or "Commissioner" shall be deemed,
for purposes of applying the rules set forth in said subsection (b)
to any meeting held by the Project Participants pursuant to this
subsection (a) and to any action taken at such meeting, to be refer-
ences to "Project Participants" and "representatives of the Project
Participants" respectively.
Notice of any meeting of the Project Participants held in
accordance :w i th this s! bsection (a) shall be given to each Project
Participant in the sante manner that notice of any special meeting of
the Commission of NCPA is given to the Commissioners.
(t) The following shall apply to NCPA and its Commission
for purposes of acting -i-pon matters relating to the Preject:
( i) A quorum of the Commission of NCPA for purposes of
acting upon matters related to the Project shall consist of those
Commissioners ( including for all purposes of this Section 11, their
designated alternates) , representing a numerical majority of the
Project Participants, or, in the absence of such, representing
Project Participants having a combined Project Entitlement Percentage
of at least a majority in interest at such time.
(ii) Special meetings of the Commission to act only on mat-
ters relating to the Project may be called by a majority of the
Commissioners of Project Participants upon notice as required by the
Ralph M. Brown Act or other laws applicable to such meetings, in
effect from time to time.
(iii) At regular or special meetings of the Commission,
voting on matters relating to the Project shall be by Project
-12-
�,s
F1
Entitlement Percentage, and
interest at such time shall
Project Participants agree <
one member one vote basis,
required for action.
the affirmative vote of a majority in
be required to take action, unless the
t such meetings that voting will be on a
with a majority vote of those present
(iv) Notwithstanding clause ( iii) of this subsection (b) ,
upon demand of any Commissioner of any Project Participant, at any
meeting of the Commission other than a special meeting referred to in
clause (ii) of this subsection (b), the vote on any issue relating to
the Project shall be by Project Entitlement Percentage at such gime
and 65% or greater affirmative vote shall be required to take
action.
(v) Any Project Participant may veto a discretionary action
of the Project Participants relating to the Project that was not
taken by a 65% or greater Project Entitlement Percentage vote within
10 days following mailing of notice of such Commissioners' action, by
giving written notice of veto to NCPA, unless at a meeting of
Commissioners or alternates of Project Participants called for the
purpose ar considering the veto and held within 30 days after such
veto notice, the holders at such time of 65% or greater of the
Project Entitlement Percentage shall vote to override the veto.
(vi) The 65% of the Project Entitlement Percentage speci-
fied in this subsection (b) shall be reduced by the amount that the
Project Entitlement Percentage of any Project Participant shall
exceed 35% at such time, but such 65% shall not be reduced below a
majority in interest.
(vii) Notwithstanding anything in this subsection (b) to
the contrary, NCPA and its Commission shall be bound by any direc-
tions given to it by the Project Participants pursuant to
subsection (a) of this Section 11 when determining any matters relat-
ing to the Project.
12. Term. (a) This Agreement shall not take effect
until it has been duly executed and delivered to NCPA by Project
Participants the Project Entitlement Percentages of which, in the
aggregate, equal 1005, all in accordance with Section 2(c) of the
Second Phase Agreement. Each Project Participant shall, if requested
by NCPA in connection with the issuance of any Bonds, cause an opin-
ion or opinions in substantially the form attached. hereto as
Appendix C to be delivered by an attorney or firm of attorneys acting
as counsel for such Project Participant.
(b) Notwithstanding the delay in effective date of this
Agreement until this Agreement has been duly executed and delivered
to NCPA by Project Participants the Project Entitlement Percentages
-13-
of which, in the aggregate, equal 100%, it is agreed by all
signatories hereto that in consideration for NCPA's signature hereto,
and for its commitment to use its best efforts to obtain the commit-
ment for Project Entitlement Percentages in the aggregate equal to
1000, each Project Participant upon its execution and delivery of
this Agreement to NCPA shall be immediately bound not to withdraw its
respective offer herein made to enter into this Agreement as exe-
cuted, together with any amendments to the appropriate Appendix A
which do not affect such Project Participant's Project Entitlement
Percentage, or to decrease or terminate its Project Entitlement
Percentage before January 1, 1985. Such a decrease or termination by
a Project Participant may be made only if this Agreement has not
taken effect before January 1, 1985 and only by giving written notice
thereof to NCPA between January 1, 1985 and January 15, 1985.
(c) Notwithstanding, the foregoing, each Project Participant
shall be entitled to decrease or terminate its Project Entitlement
Percentage upon giving written notice thereof to NCPA within fifteen
(15) days after January 1, 1986, if by January 1, 1986 NCPA shall not
have issued any Bonds the payment of which is secured by payments to
be made by the Project Participants under this Agreement.
(d) The term of this Agreement shall continue until the
later of (i) the expiration of the useful life of the Project, or
(ii) the date on which all Sonds issued have been retired-, or Full
provisions made for their retirement, including interest until their
retirement date in accordance with the applicable Bond Resolution
provided, however, that in no event shall the term of this Agreement
with NCPA as a party extend beyond the date of termination of NCPA.
In the event of the termination of the existence of NCPA it is the
intent of the Project Participants that this Agreement be construed
as an agreement among the Project Participants.
(e) Upon the termination of this Agreement and, at the
request of any Project Participant, all Project Participants desiring
to partake shall be entitled to an equitable distribution of, or an
equitable ownership interest in, the Project upon the payment to NCPA
of the sum of one dollar.
13. Termination and Amendments. 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, except as ,,ipecifi-
cally provided herein.
If at the time of the first issuance of Bonds the Project
consists of less than seven combustion turbine generating units:, this
Agreement shall be terminated as to any Project Participant with a
-14-
Project Entitlement Percentage of 0.08 and this Agreement may be
amended to reflect such termination.
Except as otherwise provided in this Agreement, so long as
any Bonds are outstanding and unpaid and funds are not set a -side for
the payment or retirement. thereof in accordance with the applicable
Bond Resolution, this Agreement shall not be amended, modified or
otherwise changed or rescinded by agreement of the parties without
the consent of each Trustee for Bonds whose consent is required under
the applicable Bond Resolution. Notwithstanding the requirements of
Section 11 hereof, any amendment or supplement to Appendix B hereto
shall require the affirmative vote of all Project Participants to
become effective. Any such amendment or supplement to Appendix B
hereto shall not require the consent of any Trustee to become
effective.
14. Member Service Agreement. This Agreement is a ser-
vice schedule and a third phase agreement attached to and incorpo-
rated into the Member Service Agreement. This Agreement shall be
construed as the more specific terms governing the general relation-
ship between the NCPA and its members set out in the Member Service
Agreement in connection with the Project.
15. Second Phase Agreement. The Second Phase Agreement
is superseded by this Agreement,. except that, notwithstanding
section 5 of the Second Phase Agreement, sections 4 and 6 of the
Second Phase Agreement shall remain in effect unless changed by
formal action of all of the Project Participants. Said section 4 is
as follows:
"Section 4. Conditional Repayment to Members. All
payments and advances made heretofore, and those hereafter
made pursuant to Section 1, excluding interest paid on
delinquent payments, shall be repaid to each of the enti-
ties making such payments and advances pursuant to this
Agreement out of the proceeds of the first issuance of the
Project bonds or as and when there are sufficient funds
available from partial sale of bonds. Such reimbursements
shall be made within 60 days following the sale of any
Project bonds and shall include inter -est computed monthly
at a rate equivalent to the end of the month prime rate of
the Bank of America NT&SA. Any interest due under the
third paragraph of Section 1 of this Agreement and unpaid
shall be deducted from the repayment. If NCPA determines
to construct combustion turbine facilities, but is not suc-
cessful in obtaining all necessary approvals and financing
therefor, there shall be no reimbursement except out of
unused Project funds including those then in the Working
Capital and Contingency Fund account, along with all other
-15-
receipts to which NCPA is entitled in connection with the ,..�
Project." ,
Said section 6 is as follows:
"Section 6. Financial Commitments. Each Project
Member agrees to a total financial commitment for its
respective percentage participation of a total of $550,000
principal amount plus interest thereon, if any, including
payments and advances heretofore made, as authorized and
approved by Project Members
From time to time as needs arise, representatives of
Project Members may, by a favorable vote as provided in
Section 3, authorize an increase in NCPA's financial com-
mitment which can be shown to support the completion of the
Project but only after 30 days' written notice of such pro-
posed increase has been given to all Project Members
The comparable paragraphs relating to repayment of advances
and financial commitment in any agreement entered into between NCPA
and each of the City of Santa Clara and Turlock Irrigation District
relating to payment of a portion of the development and planning
costs of the Project shall also remain in effect unless changed by
formal action of all the Project Participants.
16. Miscellaneous. The headings of the sections hereof w
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
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 one original
and shall constitute and be but one and the same instrument.
-15-
0
CJ
IN WITNESS WHEREOF each Proje-ct Participant has executed
0.0 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
CITY OF ALAMEDA
By
And
CITY OF HEALDSRURG
By
Ana
CITY OF LODI
By
And
CITY OF LOMPOC
By
And
CITY OF ROSEVILLE
By
And
CITY O•F SANTA MARA
By
And
CITY OF URI -AH
By
And
PLUMAS-SIERRA RURAL ELECTRIC
COOPERATIVE
By _
And _
TU'RLOCK IRRIGATION DISTRICT
And
-17-
APPENDIX A-1
SCHEDULE OF PROJECT ENTITLEMENT PERCENTAGES
Three Units
Project
Participant
City of Alameda
City of Healdsburg
City of Lodi
City of Lompoc
City of Roseville
City of Santa Clara
City of Ukiah
Plumas-Sierra Rural
Electric Cooperative
Turlock Irrigation
District
Project
Entitlement
percentage
21.82%
5.45
45.45
3.64
12.73
0.00
9.09
1.82
0.00
Total 100.00%
'•- V
APPEIIDIB h-2
SCHEDULE OF PROJECT ENTITLEMENT PERCENTAGES
Four Un -its
Project
Partici pant
City of Alameda
City of Healdsburg
Ci ty of Lodi
City of Lompoc
City of Roseville
City of Santa Clara
City of Ukiah
Plumas-Sierra Rural
Electric Cooperative
Turlock Irrigation
District
Project
Entitlement
Percentage
16.3650%
4.0875
34.0875
2.7300
9.5475
25.0000
6.8175
1.3650
0.000"0,
Total 100.00%
0-
APPENDIX A-3
SCHEDULE OF PROJECT ENTITLEMENT PERCENTAGES
Five Units
Project
Participant
City of Alameda
City of Healdsburg
City of Lodi
City of Lompoc
City of Roseville
City of Santa Clara
City of Ukiah
Plumas-Sierra Rural
Electric Cooperative
Turlock Irrigation
District
Proj ect
Entitlement
Percentage
13.092%
3.500
34.780
3.500
13.584
25.000
5.454
1.090
0.000
Total 100.00%
w
APPENDIX A-4
SCHEDULE OF PROJECT ENTITLEMENT PERCENTAGES
Six Units
Project
Participant
City of ,Alameda
City of Healdsburg
City of Lodi
City of Lompoc
City of Roseville
City of Santa Clara
City of Ukiah
Plumas-Sierra Rural
Electric Cooperative
Turlock Irrigation
District
Project
Entitlement
Per Centage
10.910%
2.725
22.715
1.820
6.365
16.667
4.545
0.910
33.3-33
Total 100.00%
r]
n
APPENDIX A-5
SCHEDULE OF PROJECT ENTITLEMENT PERCENTAGES
Seven Units
Project
Participant
City of Alameda
City of Healdsburg
City of Lodi
City of Lompoc
City of Roseville
City of Santa Clara
City of Ukiah
Plumas-Sierra Rural
Electric Cooperative
Turlock Irrigation
District
Project
Entitlement
Percentage
9.3514%
2.5-000
24.8429
3.5000
9.7029
17.8571
3.8957
0.7786
28.5714
Total 100.00%
M
PRINCIPLES OF OPERATION OF
NORTHERN CALIFORNIA POWER AGENCY'S
CO.IBUSTION TURBINE PROJECT NUMBER ONE
July 1 , 1984
Part I. General
APPENDIX B
1. Unless otherwise defined in this Appendix B, capitalized terms
used herein shall have the same meaning given such terms in that
certain Agreement for Construction, Operation and Financing of
Combustion Turbine Project Number One (the "Agreement") to which
this Appendix B is attached
2. Project Participants ope-rate under different agreements with
Pacific Gas and Electric. Company with different contractual
responsibilities. The Project Participants wish to minimize the
cost of electrical service to their ratepayers, without
adversely impacting other Project Participants, by operating the
Project in accordance with good utility practice.
3. Unless otherwise directed by a
Project Participant,
NCPA will,
dispatch the combustion
turbine
units included in
the Project to
most economically meet
the Project
Participants'
composite load
of ter consideration
of the
Project Participants'
other
resources. This will
result
in purchases and
sales of the
Project capacity and/or energy
between Project
Participants.
4. Each Project Participant will designate to NCPA the amount of
its Project Entitlement Percentage of Project capacity to be
used for reserves (reserve capacity) and the amount to be used
to serve load (peaking capacity) . These amounts may be changed
from time to time but unless otherwise agreed, notification to
NCPA must be in accordance with the earliest of any notification
requirements required of any Project Participant or NCPA in any
agreement with Pacific Gas and Electric Company or any other
agreement requiring advance notice of resources. In the event
such notice is given, NCPA will immediately notify all Project
Participants.
5. Each Project Participant agrees to sell on a short-term
( one-half hourly) basis to any other Project Participant who
requires it any Project capacity and/or energy not scheduled to
meet its half-hourly load or otherwise contractually committed,
except that reserve capacity not supporting a firm capacity sale
will not be sold between separate systems (as defined in
Section 1 of Part III below) . In addition, no sales will be
made which would result in the Project Participant who is
7
selling Project capacity and/or energy incurring costs above
those it would have otherwise incurred. Long-term sales and/or
purchases (if any) will be made by separate agreement.
6. Sales and purchases of Project capacity and/or energy pursuant
to Section S of this Part I will be made pro rata among Project
Participants on the basis of such Project Participants' Project
Entitlement Percentages.
Part II. Division of Costa
1. For purposes of sales of Project capacity and/or energy among
Project Participants, Project costs will be divided on the basis
of all fixed costs being assigned to capacity and all variable
costs being assigned to energy.
2. For purposes of Section 1 of this Part II, basic operation and
m-intenance costs will be assigned to capacity .costs and other
operation and maintenance costs will be assigned to energy
costs. Basic operation and maintenance costs are those which
would be required if the units included= in the Project were used
solely as reserve units.
3. An example of the allocation of costs is attached.
Part III.
1. For purposes of determining whether sales are for capacity and
energy or energy only, the Project Participants (other than
Santa Clara and Turlock Irrigation District), Santa Clara and
Turlock Irrigation District will each be considered.a separate
system.
2. A separate system purchase from another separate system at the
time of the purchaser's monthly peak half-hour will include both
capacity and associated energy.
3. A separate system pirchase from another separate system not at
the time of the purchaser's monthly peak half-hour will be firm
energy only and the purchaser will be billed for variable costs
only in accordance with Section 1 of Part II above.
4. Sales between Project Participants ( other than Santa Clara and
Turlock Irrigation District) will be considered as capacity and
associated energy sr' es if occurring at the time of the Project
Participants' (other than Santa Clara and Turlock Irrigation
District) composite monthly peak load half-hour.
-2-
S. Sales between Project Participants (other than Santa Clara and
Turlock Irrigation District) will be considered as firm energy
only if not occurring at the time of the Project Participants'
(other than Santa Clara and Turlock Irrigation District) compos-
ite peak load half-hour and the purchaser will be billed for
variable costs only in accordance with Section 1 of Part II
above.
6. Sales of capacity will include charges for both capacity
reserves and spinning reserves unless the purchaser- is furnish-
ing either or both of those services from another source.
7. For purposes of accounting for these purchases as described in
Section 9 of the Agreement
A. Project costs for
sales
of capacity
and capacity
reserves in a
month
will be at
the wonthly
Project capacity
cost;
and
B. Alternative costs for capacity and capacity
reserves will be at a monthly rate unless an
equivalent alternative is available at a shorter
term rate.
Part IV. ,ficial condition. Prior. to Proigct Co.moletion
1. In recognition of the rights of the Project Participants who are
parties to the Second Phase Agreement, the Project Participants
agree to allow NCPA to-, prior to completion of the Project,
reallocate the capacity and energy of the Project to the parties
to the Second Phase Agreement so as to preserve the rights of
such parties under the Second Phase Agreement.
2. Notwithstanding the requirements of Section 9 of the Agreement,
sales made in accordance with Section 1 of this Part IVshall be
made at project cost.
-3-
3
5
EXAMPLE
OF ALLOCATION
OF COSTS
Combustion Turbine Cost Allocations
At
City Load.
5 Units
Pe r- ce nt
Expenses
Capacity/
FY
1986 ($000')
Classification
Energy
Total
Capacity
Energy
Net Debt Service
10{6/0
$7,808
57,808
$
Operating Cost
Fuel
0/100
2,084
-
2,0846
Operation s
Maintenance
1
�
62
1127
Subtotal
2,821
625
2,196
Support Costs
Capacity Reserves
100/0
-
-
-
Spinning Reserves
0/140
14
-
14
Emerg. s Maint.5
0/100
-
-
-
Firm Trans.2
100/0
-
-
Subtotal
14
-
14
TOTAL PROJECT COSTS
$10,643
._.�......
$8,433
_._......._
52,220
tea.
Billing Units3
1,368MW-Mo. 22.9 GWH
Billing Rate4
$6.16/KW-Mo.
96.5 Mills/K'iqH
1 Insu-ra-nce, taxes, and reserve duty maintenance are fixed costs.
All other operationandand maintenance costs are considered vari-
able costs.
2. No transmission needed as combustion turbine is internal to city
load.
3. Capacity - 114 MW x 12 - 1,368 MW -Mo. Energy - From Ebasco
model.
4. Cost for capacity reserves - 56.1E KW -Mo. Cost for peaking
capacity - $6.16 + (0.311 x $6.16) - $8.08 KW -Mo. Assumes
capacity reserve supplied by "owned" combustion turbine.
5. Assumes emergency and maintenance supplied by combustion tur-
bines in reserve.
6. Based on 13,000 BTU/KWH heat rate and $7 .00/BTU gas cost.
7. Includes 4 mills/WH variable maintenance.
-4-
5#1
City Clerk -2- July 12, 1984
City of Lodi, California
2. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF PUBLIC
?OWER REVENUE BONDS BY NORTHERN CALIFORNIA POWER
AGENCY (COMBUSTION TURBINE PROJECT NUMBER ONE).
3. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF NOTES BY
NORTHERN CALIFORNIA POWER AGENCY (COMBUSTION
TURBINE PROJECT NUMBER ONE).
Please note that in addition to several blanks where the
City name must be filled in, the ordinance approving the Combustion
Turbine Member Agreement contains a blank on page 2 in paragraph 2 in
which the City Council must indicate the largest percentage increase
in the Project Entitlement Percentage which the City Council will
approve. In _addition paragXaphs_2_ atzd 3 on Rage 2 conta_in�ce, to
indicate who may approve the increase in th. Entitlement
Percents a as well—a-s-w-Fo—shall be authorized to exec ver and
app dove chances Combust on ur er Agreement (also
referre to as the Third Phase Agreement). This information mus be
provided by the City Council before the ordinance can be introduced.
Each of the three ordinances are subject to publication
requirements which differ from those requirements applicable ro most
ordinances adopted by the City Council. I have enclosed for your
information a memorandum which explains in general terms the publica-
tion requirements applicable to the ordinances. Also inclosed are
copies of two notices of ordinance subject to referendum which must
be published in connection with the ordinance approving: the issuance
of bonds and the ordinance approving the issuance of notes. The name '
of the City, the ordinance number and the date of adoption of the
ordinance needs to be added to complete each notice.
Please arrange to have the ordinances enacted as quickly as
possible as it is extremely urgent for NCPA to finance this Project
with the utmost haste.
If you have any questions concerning the application of the
publication requirements to the enclosed ordinances or any other
questions, please telephone me at (212) 510-7332 or Jim Anderson of
our Los Angeles office at (213) 613-1112.
Very truly yours,
ohn T. r7
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OTTO O. STOLE
Ms. Alice Reimche
City Clerk
221 West Pine St.
Lodi, California 95240
180 MAIDEN LANE
NEW YORK, N. Y. 10038
212-510-7000
NORTHERN CALIFORNIA POWER AGENCY
Combustion Turbine Project Number One
Dear Ms. Reimche:
2121 w STRCCT.N'.w.
WAS"I N0 TO". O. C. 20077
202-429-03SS
12, wut O[ LA PAIR
7S002 P'AWS.,RANC[
2e1 -s7-71
suit[ 2020
233 SOUTH QRAND AVCNU[
LOS ANQCLtS.CALI,. 00071
213-013-1192
CAOL[ AOORCSS
8ALTVC"4s%S-New TORIC
TELEX! wU 701729
wu 127000
TCL[COPI[R
212 -SIO -7024
July 12. 1984
The City
of Lodi, California is a member of
Northern
California
Power
Agency ("NCPA") and is
participating
in NCPA''s
Combustion
Tu-r>bine
Project Number One.
On June 29,
1984. the
Corm -mission
of NCPA
approvedthe Combustion
Turbine Member
Agreement.
A copy of
the Combustion
Turbine Member
Agreement is
enclosed.
It is now necessary for the City Council of Lodi to approve
the execution of the Combustion Turbine Member Agreement and to
approve NCPA's issuance of bonds and -notes for the Combustion Turbine
Project. Enclosed are copies of the following ordinances constitut-
ing such approval by the City Council:
1. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CALIFORNIA, APPROVING THE TERMS AND
CONDITIONS OF AN AGREEMENT AMONG NORTHERN
CALIFORNIA POWER AGENCY AND CERTAIN PROJECT
PARTICIPANTS AND APPROVING THE EXECUTION OF AND
DELIVERY OF SAID AGREEMENT BY OFFICERS OF THE
CITY OF A (Referred to herein as the
"Ordinance Approving the Combustion Turbine
Member Agreement.")
0
II. Publication Requirements for the Bond Ordinance
The form of the Bond Ordinance is enclosed herein and is
captioned as follows:`
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF kis
AUTHORIZING THE ISSUANCE OF PUBLIC POWER REVENUE BONDSNORTHERN CALIFORNIA POWER AGENCY (COMBUSTION TURBINE ,l.
PROJECT NUMBER ONE) . 4 -
The Bond Ordinance should be published in the same manner
as all other ordinances of the Project Participants.
In addition, the Notice of Ordinance Subject to Referendum
relating to the Bond Ordinance (the Bond -Notice,") which is enclosed
herein must be published within 15 days after adoption of the Bond
Ordinance in the following manner%
1. The Bond Notice must appear for five
consecutive
days in at least one daily newspaper
of general
circulation. A "daily newspaper" is a newspaper of general
circulation that is published on five or more days in a
calendar week.
If no such daily newspaper exists, the
Bond Notice
must be published at least twice in the weekly
newspapers
of the area. A "weekly newspaper." is one that
is a newspa-
�t
per of general circulation that is published
on at least
one, but less than five, days in a calendar
week.
If there is no such weekly newspaper, then
the Bond
_-
Not i ce must be posted for not less than two
weeks in at
..
14,
least 15 public places.
fel„-
2. The Bond Notice must be published
in at leastF
10 -point type.
g�
III. Publication Requirements for the Note Ordinance
The form of the Note Ordinance is enclosed herein and cap-
tioned as follows:
ORDINANCE OF TFE CITY COUNCIL OF THE CITY OF
AUTHORIZING THE ISSUANCE OF NOTES BY NORTHERN CALIFORNIA
POWER AGENCY (COMBUSTION TURBINE PROJECT NUMBER ONE).
�R
Muooe Rose GUTHRIE ALEXANDER S FERDON
;r
MEMORANDUM
Project Participants
NORTHERN CALIFORNIA POWER AGENCY
Ordinances Approving Participation in
Combustion Turbine Project Number One
July 12, 1984
The Project Participants in Northern California Power A
Agency's Project Number- One must rove
9 Y j PP their
A 's Combustion Turbine Pro a
participation in the Project through the enactment of an ordinance apt;-•
approving the Combustion Turbine Member_Agr�ent (the :Agreement
Ordinance") an ordinance A covin the\�ssuance of bonds by NCPA
PP 9
(the "Bund Ordinance") and rn ordinance approving the issuance of
notes by NCPA (the "Note Ordinance:). These ordinances are subject
to publication requirements which differ from the standard require-
ments applicable to ordinances normally approved by the Project
Participants. The publication requirements applicable to these ordi-
nances are as follows:
I. Publication Requirements for the Agreement Ordinance
The form of the Agreement Ordinance is enclosed herein, and
is captioned as follows:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CALIFORNIA, APPROVING THE TERMS AND CONDITIONS OF AN
AGREEMENT AMONG NORTHERN CALIFORNIA POWER AGENCY AND
�F
CERTAIN PROJECT PARTICIPANTS AND APPROVING THE EXECUTION OF
AND DELIVE4Y- OF SAID AGREEMENT BY OFFICERS OF THE CITY OF
Y ::
The Agreement Ordinance should be published in the same
manner as all other ordinances of the Project Participant are
published.
Where the city charter, if any, of a Project Participant
does not require publication after adoption or where the Project
Participant has no procedure for the publication of ordinances, then
a special procedure under Section 54242 of the California Government
Code must be followed. Under the special procedure, the Agreement
Ordinance must be published once in a newspaper of general circula-
tion in the city within 15 days after its adoption. Further, under
`
the special procedure, all publications of the Agreement Ordinance
must be set in type not smaller than nonpareil type and must be pre-
ceded by a notice of adoption worded in blackface, nonpareil type as
follows:
NOTICE OF ADOPTION OF AN ORDINANCE APPROVING THE EXECUTION
AND DELIVERY OF THE COMBUSTION TURBINE MEMBER AGREEMENT
WHEREBY THE CITY ENTERS INTO A FOR14AL LEASEBACK AGREEMENT
WITH NORTHEFN CALIFORNIA POWER AGENCY.
The Note Ordinance should be published in the same manner
as all other ordinances of the Project Participants.
F
In addition,, the Notice of Ordinance Subject to Referendum
relating to the Note Ordinance (the "Note Notice") which is enclosed
herein must be published within 15 days after adoption of the Note
Ordinance in the following manner:
1. The Note Notice must appear for five consecutive
days in at least one daily newspaper of general
circulation. A ;daily newspaper" is a newspaper of general
circulation that is published on five or more days in a
calendar week.
If no such daily newspaper exists, the Note Notice
must be published at least twice in the weekly newspapers
of the area. A "weekly newspaper" is one that is a newspa-
per of general circulation that is published on at least
one, but less than five, days in a calendar week.
If no such daily newspaper exists, the Note notice
must be published at least twice is the weekly newspapers
of the area. A "weekly newspaper" is one that is a newspa-
per of general circulation that is published on at least
one, but less than five, days in a calendar week.
If there is no such weekly newspaper, then the Note
Notice must be posted for not less than two weeks in at
least 15 public places. .
2. The Note Notice must be published in at least
10 -point type.
Any questions concerning the publication requirements for
the Agreement Ordinance, the Bond Ordinance or the Note Ordinance
should be directed to John Kelly (212-510-7332) or Jim Anderson
(213-613-1112).
,7
r h�