HomeMy WebLinkAboutAgenda Report - December 5, 1984 (47)CITY COUNCIL • MEETING
-DECEMBER, 1984
APPWVAL OF NCPA I I . On mo t i on o f Counc i 1 him ber OI son. Re i d second, Counc i 1
AGREiN0,47 " adopted Resolution No. 84-186 approving NCPA Agreemeri t
MAMFER (M for the Transfer of Rights to Capacity and Energy of
RIG IM 'ID Geo t he mm 1 Generating Project Nunbe r 3. This motion
CAPACITY & DO= carried by the following vote:
OF P'ROJ ECr #3
MS. NO. 84-186 -_- ------
Ayes: Council Nkr.bers - Iiinchman. Olson. Reid, and
Snider (N)Qyor )
\ Noes: Counci 1 Nimbers - Pinkerton
Counc i 1 him be rs - None
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NOW'
CITY COUNCIL
JOHN R. (Randy) SNIDER, Mayor CITY OF L O D I
DAVID M HINICHMAN
Mayor Pro Tempore CITY HALL, 221 WEST PINE STREET
EVELYN M OLSON POST OFFICE BOX 320
JAMES W PINKERTON, Ir LODI. CALIFORNIA 95241
FRED M REID (209) 334-5634
December 11, 1984
Ms. Gail Sipple
Northern California Power Agency
8421 Auburn Blvd.., Suite 160
Citrus Heights, CA 95610
Dear Gail:.
HENRY A_ CLAVES, Jr.
City Manager
ALICE M. REIMCHE
City Clerk
RONALD M. STEIN
City Attorney
Enclosed herewith please find executed Supplement No, 1 to the Northern
California Power Agency Joint Powers Agreement revi-sed as of April 1, 19-73
which authorizes the 11urlock Irrigation District Mmbershi-p in Northern
California Power Agency. Also attached hereto please find agreemen-t for
transfer of rights to Capacity and Energy of Geothennal Generating Project No.
3.
We have also enclosed herewith the authorizing resolutions which were adopted
by the Lodi City Council at its regular meeting of December 5, 1984.
Very truly yours,
7
6''a" �'." �� -
Alice M. iteimehe
City Clerk
AM: j j
ki
0
R} 901.i[MCN ND. 84-186
TO CAPACITY AND a GEMMIAL MOWIM
PRDJBCT NLMBM
11139OLVID, that the City Council of the City of Lodi does hereby
appruve agreement for transfer of rights to Capacity and Energy of Geothermal
Generating Project No. 3, a copy of which agreement is attached hereto marked
Exhibit "A" and thereby made a part hereof.
Dated: December 5, 1984
I hereby certify that Resolution No. 84-186
was passed and adopted by the City Council
of the City of Lodi in a regular meeting
held Decet)er 5, 1984 by the following vote:
Ayes: Council, timbers - llinchman,. Olson. Reid,
and Snider Mayor)
Noes: Council Usy ers - Pinkerton
Absent: Council Nkleaibers - None
Alice M. Reimehe
Ci ty Clerk
84-186
0
AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY
OF GEOTHERMAL GENERATING PROJECT NUMBER 3
Dated as of October 1, 1984
By and Among
City of Biggs
City of Gridley
City of Healdsburg
City of Lodi
City of Palo Alto
City of Roseville
City of Ukiah
Plumas-Sierra Rural Electric Cooperative
and
Turlock Irrigation District
ti
. TABLE OF CONTENTS
,S est ' o n T';
1.
Definitions . . . .
2
2.
Purpose
. 4
3.
Construction and Operation of Project
4
4.
Transfer of Rights to Capacity and Energy
of the Project . . . .
4
5.
Rates and Charges . .
5
6.
Annual Budget and Billing Statement
6
7.
Obligations in the Event of Default under
this Agreement . .
7
E.
Obligations in Event of Default under the
Third Phase Agreement . . . . . . . . .
. . . 8
9.
Transfers, Sales and Assignments of
Transferred East Block Entitlement
Percentages .
. 9
10.
Surplus Transf erred East Block Entitlement
Percentages . . . . . . .
. . .10
11.
Direction and Review . . . ., .. . . . . .
. . .11
12.
Insurance and Indemnification . . . . .
. . .11
13.
Intention to Amend Third Phase Agreement
. . .11
14.
Term . . . . . . . . . . . . . . . . . .
. . .12
15.
Termination and Amendments . . . . . . .
. . .12
16.
Miscellaneous
.12
APPENDIX
A - Schedule of Transferring Participants
and Transferred East Block
Entitlement Percentages . . . . .
. . . 1
APPENDIX
B - Form of Opinion of Counsel . . . .
. . . 1
-i-
AGREEMENT FOR TRANSFER OF RIGHTS
OF GEOTHERMAL GENERATING
0
TO CAPACITY AND ENERGY
PROJECT NUMBER 3
This Agreement, dated as of October 1, 1984, by and among
the Transferring Participants (capitalized terms used herein shall
have the meanings given such terms in Section 1 hereof) and the
Turlock Irrigation District,
WITNESSETH:
WHEREAS, each of the Transferring Participants has entered
into the Third Phase Agreement with NCPA pursuant to which NCPA* has
agreed to provide, and each of the Transferring Participants has
agreed to take or cause to be taken, their respective East Black
Entitlement Percentages of the capacity and energy of the Project;
and.
WHEREAS, the Transferring Participants have determined to
transfer a portion of their respective East Block Entitlement
Percentages of the capacity and energy of the Project to the District
on the terms and conditions herein contained; and
WHEREAS, NCPA has financed the cost of the Project through
the issuance of the following Bonds: $230,000,000 aggregate princi-
pal amount of its Geothermal. Project Number 3 Revenue Bonds, 1983
Series A, $90,000,000 aggregate principal amount of its Geothermal
Project Number 3 Short Term Commercial Paper Notes, Series A, and
$400,000,000 aggregate principal amount of its Geothermal Project
Number 3 Revenue Bonds, 1984 Series A, a portion of the proceeds of
which were applied to the payment of such Notes; and
WHEREAS, the Third Phase Agreement provides that the
Transferring Participants are required to make the payments relating
to their respective East Block Entitlement Percentages of the capac-
ity and energy of the Project specified in the Third Phase Agreement,
including payments with respect to Bonds, whether or not the Project
is completed, operable operating or retired and notwithstanding the
suspension, interruption,. interference, reduction or curtailment of
Projectoutput or the capacity and energy contracted for in whole or
in part_ for any reason whatsoever; and
WHEREAS, the District has agreed to acquire the Permanent
Transferred East Block Entitlement Percentages of the capacity and
energy of the Project on the terms and conditions contained herein,
including the obligation to make payments with respect to such
Permanent Transferred East Block Entitlement Percentages to the
extent that the Transferring Participants are obligated to make
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(1)
payments for such rights to capacity and energy of the Project under
the Third Phase Agreement; and
WHEREAS, the District has agreed to acquire the Transferred
East Block Entitlement Percentages of the capacity and energy of the
Project in excess of the Permanent Transferred East Block Entitlement
Percentages on the terms and conditions contained herein, including
the obligation to make payments with respect to such Trans erred East
Block Entitlement Percentages to the extent tiiat the Transferring
Participants are obligated to make payments for such rights to capac-
ity and energy of the Project under the Third Phase Agreement; pro-
vided that NCPA is able to contractually arrange for delivery of such
capacity and energy to the District on a firm basis, subject to
normal transmission emergency outages and curtailment; and
WHEREAS,.the transfer to the District of the Transferred
East Block Entitlement Percentages of the capacity and energy of the
Project is authorized under the Third Phase Agreement and under the
existing Bond Resolutions;
NOW THEREFORE, the parties hereto do agree as follows:
1. Definitions. Terms used herein which are defined in
the Third Phase Agreement shall have the same meanings herein as are
given such terms in the Third Phase Agreement. In addition, the fol-
lowing terms shall, for all purposes of this Agreement, have the fol-
lowing meanings:
(a) "District" means the Turlock Irrigation District.
(b) "District Electric System" means all properties and
assets, real and personal, tangible and intangible, of the District
now or hereafter existing, used or pertaining to the generation,
transmission, transformation, distribution and sale of electric
capacity and energy, including all additions, extensions, expansions,
improvements and betterments thereto and equippings thereof; pro-
vided, however, that to the extent the District is not the sole owner
of an asset or . property or to the extent that an asset or property is
used in part for the above described electric purposes, only the
District's ownership interest in such asset or property or only the
part of the asset or property so used for electric purposes shall be
conside*ted to be part of the District Electric System.
(c) "District Revenues" means all income, rents, rates,
fees, charges, and other moneys derived by the District from the
ownership or -operation of the District Electric System, including,
without limiting the generality of the foregoing, (i) all income,
rents, rates, fees, charges or other moneys derived from the sale,
furnishing, and supplying of the electric capacity and energy and
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Other services, facilities, and commodities sold, furnished, or
supplied through the facilities of the District 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 the District Electric System and (iii) the proceeds derived by
the District directly or indirectly from the sale, lease or other
disposition of all or a Fart of the District Electric System as per-
mitted by this Agreement, but the term "District Revenues" shall not
include (y) customers' deposits or any other deposits subject to
refund until such deposits have become the property of the District,
or (z) contributions from customers for the payment of costs of con-
struction of facilities to serve them.
(d) "Permanent Transferred East Block Entitlement
Percentage" means, as of any date of determination and with respect
to each Transferring Participant, su-h Transferring Participant's
East Block Entitlement Percentage of the capacity and energy of the
Project identified in Appendix A, as bring the permanently trans-
ferred portion of such Transferring Participant's East Block
Entitlement Percentage, as such Appendix A shall be amended from time
to time in accordance with Sections 8(a) and 13 hereof.
(e) "Third Phase Agreement" ineans the "Agreement for
Construction, Operation and Financing of Geothermal Generating
Project Number 3" dated as of July 1, 1983, by and among NCPA and the
Project Participants, as amended and supplemented.
(f) "Transferred East Block Entitlement Percentages" means,
as of any date of determination and with respect to each Transferring
Participant, such Transferring Participant's East Block Entitlement
Percentage of the capacity and energy of the Project identified and
set forth opposite the name of such Transferring Participant in
Appendix A hereto, as such Appendix A shall be amended from time to
time in accordance with Sections 8(a) and 13 hereof; provided, how-
ever, that, except for increases pursuant to Section 8(a) of this
Agreement, the term "Transferred East Block Entitlement Percentages"
shall not include any capacity and energy of the Project in excess of
9.309 percent if NCPA is unable to contractually arrange for delivery
of such capacity and energy to the District on a firm basis subject
to normal transmission emergency outages and curtailment. The
Transferring Participants shall direct NCPA to provide support ser-
vices at cost to the District at the District's request during any
such outages or curtailment. If the Transferred East Block
Entitlement Percentages are less than that set forth in Appendix A
hereto because of NCPA's inability to contractually arrange for
transmission service, each of the Transferring Participants'
Transferred East Block Entitlement Percentages shall be reduced gt4
,Lata or as otherwise agreed by the Transferring Participants.
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•
r,
(g) "Transferring Participants" means those Project
Participants executing this Agreement.
2. Purpose. The purpose of this Agreement is to provide
for the transfer of a portion of the Transferring Participants' East
Block Entitlem. ent Percentages of the capacity and energy of the
Project to the District and to establish the terms and conditions of
such transfer.
3. Construction and Operation of Project. The District
ackrowledces that, pursuant to the Third Phase Agreement, NCPA has
agreed to use its best efforts to cause or accomplish the construc-
tion., operation and financing of the Project, the obtaining of all
necessary authority and rights, and the performance of all things
necessary and convenient therefor. The District will cooperate with.
NCPA to that end.
The District hereby consents to the pledge and assignment
to NCPA, and to any Trustee for any Bonds, of all of each
Transferring Participant's right, title and interest in, to and under
this Agreement, including all or any portion of the payments received
or to be received hereunder from the District. Upon notice from a
Transferring Participant, NCPA or any Trustee who is an assignee of
such rights, the District shall make payments due by it hereunder
directly.to any such Trustee. Such pledge and assignment shall be
made effective for such time as the assigning Transferring
Participant shall determine and provide or as to assignments made by
NCPA, as NCPA shall determine and provide.
4. Transfer of Rights to Capacity and Energy of the
Project.
(a) Subject to the terms and conditions of this -Agreement,
each Transferring Participant hereby sells, transfers, assigns and
conveys, and the District hereby accep':s and agrees to take, or cause
to be taken, each Transferring Participant's Transferred East Block
Entitlement Percentage to the capacity and energy of the Project.
(b) Each Transferring Participant shall direct NCPA to
deliver such Transferring Participant's Transferred East Block
Entitlement Percentage to or for the District, subject to the terms
of this"Agreement and the Third Phase Agreement. Such delivery shall
be at points mutually agreed upon by NCPA and the District. Such
agreenent shall not be unreasonably withheld by the District and each
Transferring Participant will direct that such agreement is not
unreasonably - withheld by NCPA. The Transferring Participants shall
direct NCPA to remain available to make or cause to be made all
necessary and possible arrangements for transmission and support of
the Transferred East Block Entitlement Percentages to such points
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over the lines of NCPA or others. Wheeling or delivery services
provided by NCPA for the District with respect to capacity and energy
sales related to the Transferred East Block Entitle;nent Percentages
shall be as provided in service schedules as provided in Article III
of the Member Service Agreement with respect to the Transferring
Participants and each Transferring Participant will direct NCPA to
remain available to make or cause to be made all necessary and possi-
ble arrangements for transmission and support to the District of its
Transferred East Block Entitlement Percentages relating to such
capacity and energy sales.
S. Rates and Charges. (a) The District shall Fay for the
Transferred East Block Entitlement Percentages acquired by it pursu-
ant to this Agreement, in accordance with the provisions of Section 6
hereof, such amounts as the Transferring Participants are obligated
to pay with respect to the Transferred East Block Entitlement
Percentages under the Third Phase Agreement. In the event any
Transferring Participant pays any amount under the Third Phase
Agreement with respect to the Transferred East Block Entitlement
Percentages, the District shall repay such amounts to the
Transferring Participant, together with interest thereon from the
date of payment, to the extent permitted by law, at an annual rate to
be established by the Commission of NCPA at the time of the adoption
of the then most recent annual budget.
(b) The District shall make payments under this Agreement
solely from the District Revenues and as an operating expense of the
District Electric System. Nothing herein shall be construed as pro-
hibiting the District from using any other funds and revenues for
purposes of satisfying any provisions of this Agreement.
(c) The District shall make payments under this Agreement
whether or not the Project is completed, operable, operating or
retired and notwithstanding the suspension, interruption, interfer-
ence, 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 conditioned upon performance by NCPA or any
Project Participant, including any Transferring Participant, under
this Agreement, the Third Phase Agreement or any other agreement.
(d) The District covenants and agrees to establish and col-
lect fees and charges for electric capacity and energy furnished
through facilities of the District Electric System sufficient to pro-
vide District Revenues adequate to meet its obligations under this
Agreement and to pay any and all other amounts payable from or con-
stituting a charge or lien upon any or all the District Revenues.
(e) The District covenants and agrees that it shall, at all
times, operate the properties of the District Electric System, and
the business in connection therewith, in an efficient manner and at
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reasonable cost and si,; ll maintain the District Electric System in
good repair, working order and condition.
(f) With regard to any capacity and energy of the Project
in excess of the Permanent Transferred East Block Entitlement
Percentages, notwithstanding the District's oblication under Section
5 (a) hereof, the District shall not be required to pay the costs of
anv capital additions to the Project which are not necessary to pro -
vice such capacity and energy to the District. To the extent not
included in amounts due under Section 5(a) hereof, the Discrict
agrees to pay an equitable share of the costs of any capital ad ii -
tions to the Project which are necessary to provide capacity and
energy in excess of the Permanent Transferred East Block Entitlement
Percentages to the District.
6. Annual Budget and Billing Statemert. The
Transferring Participants and the District acknow.Ledge that the Third
Phase Agreement provides that, prior to the beginning of each NCPA
fiscal year, t..e 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.
Each Transferring Participant will direct NCPA to give
notice to the District of the projected share of such costs and
expenses related to the Transferred East 3lock Entitlement
Per.entages and to prepare a billing statement, based on estimates,
to be sent to the District not later than the fifteenth (15th) day of
each calendar month showing the amount payable by tLe District of
costs payable under Section 5(a) of this Agreement by tN!! District
for th �: second succeeding calendar month, and the amount .f any cred-
its 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 t.`:_ billing statement. Any amount due and not paid
by the District within thirty (30) days after the date of the billing
statement shall bear intezast from the due date until paid at an
annual rate to be established by the Commission of NCPA at the time
of a.loption of the then most recent annual budget.
on or before the day five (5) calendai months after the end
of each NCPA fiscal year, the Transferring Participants shall direct
NCPA to''submit to the District a statement of the aggregate monthly
costs of the Transferred East Blocs: Entitlement Percent?gen for such
fiscal year. If the actual aggregate monthly costs and other amounts
payable for any fiscal year with respect to the Transferred East
Block Entitlement Percentages exceed the billings to the District,
the deficiency shall be added to the District's immediately succeE'-
ing billirq statement. If the actual acc_regate monthly costs and the
District's Ghi4gations with respect to the Transferred East Block
Entitlement Percentages, and any adjustment of or credit to the
District's obligations with respect to the Transferred East Block
4 010
Entitlement Percentages or other amounts payable for any fiscal year,
are less than the billings to the District, such excess shall. be
credited to the District's billing statement for such period (not to
exceed the immediately succeeding six months) and in such amounts as
shall be determined by NCPA.
If the District questions or disputes the correctness of
any billing statement by NCPA, it shall pay th= amount claimed when
due and shall within thirty (30) days of the receipt of such billing
statement request an explanation from NCPA. If the bill is deter-
mined to be incorrect, the Transferring Participants shall direct
NCPA to issue a corrected bill and refund nd any amount which may be due
the District, which refund shall bear interest from the date NCPA
received payment until the date of the refund at an annual 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 District fail to
agree �n the correctness of a bill within thirty (30) days after. the
District has requested an explanation, the District agrees to, and
the Transferring Participants shall cause NCPA to, promptly submit
the dispute to arbitration under section 1280 r_t =. of the Code of
Cavil Procedure.
7. Obligations in the Event of Default under this
Agre--went. (a) Upon failure of the District to make any payment in
full when due under this Agreement, NCPA or a Transferring
Participant shall make written demand upon the District, and if said
failure is not remedied within thirty (30) days from the dat=e of such
demand, such failure shall constitute a default at the expiration of
such period. Notice of such den.and shall be provided to NCPA and to
each other Transferring Participant by the Transferring Participant
making such written demand.
(b; Upon the failure of the District to make any payment,
which failure constitutes"a default under this Agreement, the
Transferring Participants shall cause NCPA to sell and transfer for
the District's account all or a portion of the District's riq ate to
the Transferred East Block Entitlement Percentages for all or a por-
tion, of the remainder of the term of this Agreement, including, if so
directed by the Transferring Participants, such a sale to any or all
of the Transferring Participants. The Transferring Participants
shall not permit NCPA to sell such rights to the Transferred East
Block b`ntitiement Percentages, 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(x) 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. Notwithstanding that all or any portion of the District's
rights to the Transferred East Block Entitlement Percentages is so
sold or transferred, the District shall remain liable to pay the full
amount of its obligations under Section 5 hereof as if such sale or
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-transfer had not been made, except that such liability steal -1 be
discharged to the exte-it that NCP; shall receive payment from the
nur chaser or transferee thereof.
(c) Upon the failure of the District to make any payment
which failure constitutes a default under this Agreement and causes
NCPA to be in default under the Steam Sales Agreement, the Project
No. 2 Steam Sales Agreement or any ^ond Resolution, the Transferring
Participants may (in addition to the remedy provided by subsection
(b) of this Section 7) terminate the. provisions of this Agreernent
insofar as the same entitle the District to its rights to the
Transferred East Block Entitle.-nent Percentages. Irrespective of such
termination, the obligations of the District under this Agreement
shall continue in full force and effect.
(d) If NCPA fails to act in accordance with the direction
of the Transferring Participants, the Transferring Participants shall
consent to the District initiating and maintaining a suit directly
against XCPA to enforce this Agreement.
8. Obligations in Event of Default under the Third Pbase
Agreement.
(a) To the extent that any Transferritng Participant's East
Block Entitlement Percentage is increased pursuant to Section 7(d) of
the Third Phase Agreement, st:ch Transferring. Participant's Permanent
Transferred East Block Entitlement Percentage transferred to the
District hereunder shall be increased by the amount of each increase
;n the Transferring Participant's East Block Entitlement Percentage
multiplied by a fraction the numera,:or of which is such Transferring
Participant's Permanent Transferred East Block Entitlement Percentage
and the denominator of which is the Transferring Participant's East
Block Entitlement Percentage each determined as of the time immedi-
ately prior to such increase; provided, however, that the sum of such
increases for the District shall not exceed, without written consent
of the District, an accumulated maximum of 25% of the aggregate
amount of the Permanent Transferred East Block Entit:ement
Percentages transferred hereby, as initially set forth in Appendix
A.
(b) The Third Phase Agreement provides that if a Project
Particibant shall fail oz refuse to pay any amounts due to NCPA, the
fact thQt the other Project Participants have increased their obliga-
tion to NCPA pursuant to Section 7 of the Third Phase Agreement shall
not relieve the defaulting Project Participant of its liability under
the Third Phase Agreement and that the nondefaulting Project
Participants may recover from such defaulting Project Participant any
increased obligations resulting frcm such default. Each Transferring
Participant hereby assigns to the District all of its right of
recovery from a defaulting Proje.:t Participant with respect to its
Transferred East Block Entitlement Percentage to the extent of any
increase in the District's obligations hereunder caused by the
defaulting Project Participant.
(c) If the Transferring Participants' rights under this
Agreement are assigned to NCPA or a Trustee for any Bonds, NCPA, or
to the extent provided in the related Bond Resolution, such Trustee,
shall have the right to initiate and maintain suit tO enforce this
Agreement.
9. Transfers, Sales and Assignments of Transferred East
Block Entitlement Percentages. The District has full and unfet—
tered rights to make sales, transfers and exchanges (collectively
"assignments") of its rights to Transferred East Block Entitlement
Percentages except as expressly provided otherwise in this
Agreement.
(a) The District shall not assign ownership of all or sub—
stantially all of the District Electric System to another entity
until it has first complied with the provisions of this subsection
(a) . A consolidation with another governmental entity or change in
governmental form is not deemed a transfer of ownership.
(1) Such disposition or assignment shall be under
terms and conditions that provide assurance that the obli—
gations of the District under this Agreement, and that the
Transferring Participants' obligations under the Third
Phase Agreement and under other agreements made or to be
made by the Transferring Participants to carry out the
Project, as the same relate to the Transferred East Block
Entitlement Percentages will be promptly and adequately
met. The Transferring Participants or NCPA may require
that sufficient moneys of the District to discharge such
obligations be irrevocably set aside and maintained.in a
trust account, as a condition to the transfer of the
District Electric System, if no other adequate assurance is
available.
(2) The District shall give ninety (90) days advance
written notice to the Transferring Participants and NCPA of
any proposed transfer pursuant to this subsection (a).
Appendix A to this Agreement shall be amended as appropri—
ate- to reflect any transaction pursuant to this subsection
(a) .
(b) Notwithstanding any other provision of this Agreenent,
the District shall not assign, sell, transfer or exchange any portion
of its rights to Transferred East Block Entitlement Percentages,
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
NO
reason of classification of such Bond as an "industrial development
bond" within the meaning of Section 103(b) of said Code.
10. Surplus Transferred East Block Entitlement
Per centages.
(a) When NCPA offers surplus capacity and energy of the
Project to the Transferring Participants as provided in the Third
Phase Agreement, the Transferring Participants shall, if directed by
the District to do so, take and sell to the District such surplus
capacity and energy. In the event thele are more requests for sur-
plus than there is surplus availatle, each Transferring Participant
shall offer the District a portion of such surplus capacity and
energy equal to the surplus capacityand energy oYFered to such
Transferring Participant multiplied by a fraction t .e numerator of
which is such Transferring Participant's Transferred East Block
Entitlement Percentage and the denominator of which is the
Transferring Participant's East Block Entitlement Percentage each
determined as of the time such offer of surplus capacity and energy
is made.
(b) When the District has surplus rights tc- capacity and
energy, of the Project, the Transferring Participants shall direct
NCPA, if requested by the District to do so, to sell such surplus
rights to Transferred East Block Entitlement Percentages on behalf of
the District in the following manner:
(1) NCPA stall use its best efforts to sell such
surplus rights to Transferred East Block Entitlement
Percentages at a price at least equal to the District's
cost therefor.
(7) Transferring Participants shall have a right of
first refusal, other Proje�a Participants shall have the
right of second refusal, and other NCPA members shall have
the right of third refusal, at the sales prices set forth
ir: subsections (c) and (o) of this Section 10.
(3) If. NCPA can purchase equivalent capacity and/or
energy from other sources for less than the District's cost
for rapacity and/or energy from the Project, as the case
may be, the sales price of such capacity and/or energy to a
Tr-nnsferring Participant, Project Participant or NCPA
member shall be equal to the cost of purchasing the capac-
ity and/or energy from such other source.
(4) If the alternative cost of purchasing capacity
and/or enerGy for Transferring Participan`s, Project
Participants or members of r'1. -PA is more than the District's
cost for capacity and/or energy from the Project, then the
sales price shall be the District's cost from the Project
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. f
plus one-half the difference between the District's cost
f rom the Project and the cost of capacity and/or energy
from such alternative source.
(5) NCPA shall not sell such rights to Transferred
East Block Entitlement Percentages, directly or indirectly,
in any ;;canner, 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.
11. Direction and Review. All directions to NCPA with
respect to the Project and all meetings of NCPA in connection there-
with shall be as provided in Section 11 of the Third Phase Agreement
and for such purposes, the Transferring Participants agree that the
District may vote at meetings of the Project Participants pursuant to
Section 11 of the Third Phase Agreement as if it had the East Block
Entitlement Percentage equal to the Transferred East Block
Entitlement Percentages, and the voting rights of the Transferring
Participants shall be reduced accordingly, unless the Project
Participants agree at such meeting that voting will be on a one
member one vote basis, with a majority vote of those present required
for action, in which case the District shall be entitled to one vote;
provided that the Transferring Participants shall not agree that
voting shall be on a one member one vote basis unless the District
directs the Transferring Participants to do so.
12. Insurance and Indemnification. The Transferring
Participants shall indemnify and hold harmless the District 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 liability of the Transferring Participants shall be limited to
the extent the proceeds of insurance and other moneys available to
the Transferring Participants :under Section 10 of the Third Phase
Agreement are available therefor.
13. Intention to Amend Third Phase Agreement. I t i s
the intention of the parties to this Agreement that the Third Phase
Agreement shall be amended to include the District as a Project
Participant and to amend the East Bock Entitlement Percentages to
grant the District an East Block Entitlement Percentage equal to the
Per,maner.t Transferred East Block Entitlement Percentages, if and to
the extent permitted thereunder and under any Bond Resolution. In
the event of such amen ent of the Thir3 Phase Aclreement, unless oth—
erwise agreed to among the parties hereto, this Agreement shall
remain in full force and effect but shall be construed to apply only
to the Transferred East Block Entitlement Percentages in excess of
-11-
the Permanent Transferred East Block Entitlement Percentages from the
of f ect ive date of such amendment of the Third Phase Agreement.
14. Term. (a) This Agreement shall became effective for
all purposes upon the execution hereof by the District and the
Transferring Participants and delivery to the Transferring
Far ::ciparis of an opinion of an attoiney or firm► of attorneys acting
as counsel to the District in substantially the form attached hereto
as Appendix B.
(b) The term of this Agreement shall continue until the
termination of the T :ird Phase Agreement.
15. 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 specifi-
cally provided herein.
16. Miscellaneous. The headings of the sections hereof
are inserted for convenience only and shall not be deemed a part of
this Agreement.
If any one or more of the covenants or agreements provided
in this Agreement to be performed should be determined to be invalid
or contrary to law, such covenant or agreement shall be deemed and
construed to be severable from the remaining covenants and agreements
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.
-12-
I
0
IN WITNESS WHEREOF each Transferring Participant has exe—
cuted this Agreement by its duly authorized officers, and caused its
official seal to be affixed hereto, and the District has executed
this Agreement in accordance with the authorization of its Board as
of the date first above written.
CITY OF BIGGS
By
An d
[SEAL]
CITY OF GRIDLEY
By
And
(SEAL.1
BEALDS BURG
By
And
(SEAL]
CITY OF LODI
By -
An My, 71� �'t r��i r -Mayor
City C.erk
[SEAL)
-13-
CITY OF PALO ALTO
By
And
[SEAL)
CITY OF ROSEVILLE
By
And
[SEAL]
CITY OF UKIAH
By
And
[ SEAL j.
PLUMAS—SIERRA RURAL
ELECTRIC COO PERAT IV E
By
And
[SEAL]'
TURLOCK IRRIGATION DISTRICT
By
And
w. .• C A ♦ V r f' Y O d
7 1 0 A o f• n o o ew s r-
-4
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10 > "1 ] O ♦ — rl O A Z
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W
APPENDIX B
FORM OP OPINION OF COUNSEL
Northern California Power Agency
8421 Auburn Boulevard
Suite 160
Citrus Heights, California 95610
City of Biggs
City of Gridley
City of Healdsburg
City of Lodi
City' of Palo Alto
City of Roseville It
City of Ukiah
Plumas-Sierra Rural Electric Cooperative
Dear Sirs:
I am acting as counsel to the District (the "District')
under the Agreement for Transfer of Rights to Capacity and Energy of
Geothermal Generating Project Number 3, dated as of October 1, 1984
(the "agreement"), among the District and certain other entities (the
"Transferring Participants"), and I have acted as counsel to the
District 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
District, (ii) all necessary documentation of the District relating
to the authorization, execution and delivery of the Agreement, and
(iii) an exe,:uted counterpart of the Agreement.
Based upon the foregoing and such examination of law and
such other information, papers and documents as I deem necessary or
advisable to enable me to render this opinion, including the
Constitution and laws of the State of California, together with the
(charter or other governing instruments), ordinances and public pro-
ceedings of the District, I am of the opinion that:
1. The District is istate form of organization)
, duly created, organized and existing under the
laws of the State of California and Ouly qualified to fur-
nish electric service within said State.
B-1
2. The District has full legal right, power and
authority to enter into the Agreement and to carry out and
consummate all transactions contemplated thereby, and t.i_e
District 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 District, is in full force and effect
as to the District in accordance with its terms and, assum-
ing that the Transferring Participants have all the requi.-
site power and authority, and have taken all necessary
action, to execute and deliver such Agreement, constitutes
the legal, valid and binding obligation of the District
enforceable in accordance with its terms.
4. Payments by the District under the Agreement will
constitute an operating expense of the District and are to
be made solely from the District Revenues of the Distri-t
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 District of th.e
Agreement, or the performance by the District of its obli-
gations 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 District, any commitment, agree-
ment or other instrument to which the District is a party
or by which it or its property is bound or affected, or any
ruling, regulation, ordinance, judgment, order c_ decree to
which the District (or any of its officers in their respec-
tive capacities as such) is subject or any provision of the
laws of the State of California relating to the District
and 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 District or any entity affil-
iated with the District or any of its officers in their
respective capacities as such (nor to the best of my knowl-
edge is there any basis therefor), which questions the
powers of the District referred to in paragraph 2 above or
the validity of the proceedings taken by the District in
connection with the authorization, execution or delivery of
the Agreement, or wherein any unfavorable decision, ruling
B-2
W
or finding would materially adversely affect the
transactions contemplated by the Agreement, or which, in
any way, would adversely affect the validity or enforce—
ability 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
a. -.v a. _ licable bankruptcy, insolvency, debt adjustment, moratoriump
reorcanization, or other similar laws affecting creditors' rights
ger,erally 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 Northern California Power Agency ("NCPA Y and
the Transferring Participants. No other person is entitled to rely
on this opinion, nor may you rely on it in connection with any trans—
actions other than those described herein.
[Note: If it shall be necessary for the District to obtain
the authorization or approval of a Federal, state or local regulatory
authority relating to the District's performance under the Agreement,
the form of opinions set forth in paragraphs 2, 5 and 6 hereof may be
appropriately adjusted to reflect the necessity for such authorza—
tion or approval and paragrapr 5 hereof shall be adjusted to include
therein an exception 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,
*.M
W
RESOLUTIM M. 84-185
'1• • � • Int°1r`9 ° la a ,°�I't,`+ ° f �°e
RESOLVED, that the City Council ,-f the City of Lodi does hereby
approve supplemental No. 1 to the Northern California Power Agency Joint Powers
Agreement revised as of April 1, 1973 which authorizes the Turlock Irrigation
District himbership in the Northern California Power Agency a copy of which I!-
attached
sattached hereto identified as Exhibit "A" and thereby made a part hereof.
NCY, Ti- E, BE Ir 1 NMER,, RESOLVED that the City Council of
the City of Lodi does hereby authorize the Mayor and City Clerk to execute the
subject agreement on behalf of the City of Lodi.
Dated: December 5, 1984
I hereby certify that Resolution No. 84-185
was passed and adopted by the City Council
of the City of Lodi in a regular meeting
held December 5. 1984 by the following vote:
Ayes: Council Nimbers - Pinkerton, Hindman,
Olson, Reid, 4 Snider (Mayor)
Noes: Council limbers - None
Absent: Counc i 1 Nkmbe rs - None
&A"ht - 4"ZW-tb
Alice M. Reimehe
City Clerk
84-185
,.'tt .. ., �.::��'C���.4Cit�j'F,F'i4S.(!a•�;', .�:. i�r....y+a:..:. .h .. ,.} .. ,. T �a�; - .`y.. � .
M
e
SUPPLEMENT NO. 1 TO
NORTHERN CALIFORNIA POWER AGENCY
JOINT POWERS AGREEMENT
REVISED AS OF APRIL 1, 1973
10/9/84
This Agreement dated as of September 27, 1984, by and
among the parties signatory hereto, hereinafter called
"Parties", witnesseth that
WHEREAS, all of the parties hereto, except Turlock
Irrigation District, herein called "Turlock", are also
parties to that Agreement first made the 19th day of
July, 1968, and revise.3 as of the first day of April, 1973,
as amended, which agreement is herein called the "Joint
Powers Agreement"; and
WHEREAS, the Joint Powers Agreement created the
Northern California Power Agency, herein called "NCPA",
pursuant to section 6500 et seq. of the Government Code of
the State of California, of which all parties hereto except
Turlock are members or associate members; and
WHEREAS, Turlock and the other parties hereto desire
that Turlock shall become a party to the Joint Powers Agree-
ment and a member of NCPA on the same basis as each of the
other members; and
WHEREAS, Turlock is a public agency of the State of
California, and is entitled to be a preference purchaser of
electric service from the Central Valley Project of the
United States, and has powers equivalent to those of the
other members of NCPA so far as is relevant to the powers of
11
NCPA; now therefore, the Parties, including Turlock, agree
as follows:
Section 1. On and after the effective date of th-is
Agreement, Turlock shall be a member of NCPA and a party to
the Joint Powers Agreement, and shall have the same rights,
powers and privileges and immunities, duties and ol-ligations
as any other member of :NCPA as of that effective date.
Section 2. Turlock shall not be lial%le for any share
of the organization, planning, or other costs o. NCPA in-
curred prior to the effective date of this Agreement, and
shall not by force of this Agreement become a party to any
other agreement or instrumentality of NCPA entered into or
created prior to the effective date of this Agreement, or
except with its consent and the consent of all other NCPA
members and associate members who are parties to such agree-
ment or instrumentality evidenced separately from this
agreement.
Section 3. This Agreement shall take effect on the
first day of the calendar month following the complete
execution of this agreement by Turlock and all members and
associate members of NCPA.
CITY OF ALAMEDA
By
date
CITY OF BIGGS
By
da to
-2-
CITY OF HEALDSBURG
By
date
CITY OF LODI
By
2)or
date 3 A
Attest: ---/ �h—1 .,
CITY OF 7,omPOC City Clerk
► By
date
CITY OF PALO ALTO
By
da to
CITY OF REDDING
By
date
CITY OF GRIDLEY
By_
da to
-3-
CITY OF ROSEVILLE
By_
date
CITY OF SANTA CLARA
By`
date
T'URLOCK IRRIGATION DISTRICT
By
date
CITY OF UKIAH
By
date
PLUMAS-SIERRA RURAL
ELECTRIC COOPERATIVE
By
date