HomeMy WebLinkAboutResolutions - No. 80-62RESOLUTION NO. 80-62
RESOLUTION APPROVING AMENDED AND RESTATED
MEMBER AGREEMENT FOR CONSTRUCTION OPERATION
AND FINANCING OF NCPA GEOTHERMAL GENERATING
UNIT #2 PROJECT
BE IT RESOLVED BY the City Council of the City of
Lodi as follows:
SECTION 1. The attached Amendment to the Member
Agreement for construction, operation, and financing of NCPA
Geothermal Generating Unit No. 2 dated June 15, 1977, is hereby
approved by this City Council.
SECTION 2. The City Council of the City of Lodi does
hereby authorize the Mayor and City Clerk to execute such
Amendment.
Dated: April 23, 1980
I hereby certify that Resolution No. 80-62 was
passed and adopted by the City Council of Lodi
in an adjourned regular meeting held April 23,
1980 by the following vote:
Ayes: Councilmen - Hughes, Katnich, McCarty,
Pinkerton and Katzakian
Noes: Councilmen - None
Absent: Councilmen - None
dd
ALICE M. REIMCHE
CITY CLERK
80-62
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Rev. 2/l3/�0
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Rev. 2/l4 0
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A�[hD[D AND R[S[h[[D �[B[R T CR[[���T
F0K C0�5[RUC[IVN, �%HClNI 6
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811[RA[[0U
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OF N[PA G(U[UERKAL C[�[R A7l�� Ii -`2 PROJECT
4
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Th iS AgreeN2Dt, ma de as of J a nuarJ/ �, 1980, 'by and
0
between
Morthe�n California Powe� /\gsu�J/� a- joint''0wer� apencJy
7
of the
5tate'ofCaliforoia, hereinafLer called "f4CPA," and
O
those
of its members who ex'ecute this Agreement,,-hereinafte'
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called
"PurchasYng Purticipatiny " wifm��seth:
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}O
that
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WHEREAS, NCPA and those of its members therein desig-
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nated
as "Participating Members"entered into an agreement
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called
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"NCPA Member Agreement for Participation in Electric Po:or
14
Development
Fund," dated July l, 1975, as amended, hereinafter
'
15
culled
the Development Fund Agreement, to provide for the devaJ-
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opment
and planning of electric generating projects and a'ssocl-
17
ated works
and xhich Development Fund Agreement resulted in tile
lQ
creation
�
of the following n
ow ng amo g Lhos e
�
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Participating
Members:
%O
-
City of Alameda 14'994%
21
['ty of R^OOS 0.167%
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CiLy of Gridley 0'334%
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City of Healdsburg 3'177%
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Ci ty of Lodi 14.560%
23
City of Lompoc 3.266%
/
20
City of Roseville 3-177%
27
Ciiy of Santa Clara 54'651%
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Ci Cy Of Uk i ah 4.972%
Plumus'Sierra R' - E' C. 0.102%
U
U
l00'00O%
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+rlHERFAS, pursuant to L}in f)evelol)i ^nt Fund A 9ri�(:i„r.11t,
'1CPA has entered into a Steam Sales Ayrc-i21;rent" ,:i th
Shell Oil Company, dated as of June 27, 1977, here -
c
inafter called the Shell Agreement, tidiich prov1des for the supply
of geothermal steam for an electric generating plant to be kno'rrn
as NCPA Geothermal Generating Unit No. 2; and
WHEREAS, pursuant to the Cevelopinent Fund Agreement and
particularly article 10(c) thereof, NCPA and some or all of the
Participating I•iembers entered into a further agreement with
respect to the specific project to be constructed under- the -
Shell Agreement, to prepare for the financing of the Project,
which may include the issuance of Bonds, vihich agreement ,vas
entitled "Member Agreement for Construction, Operation, and
Financing of NCPA Geothermal Generating Unit n2 Project" and
dared -as of June 15, 1977, herein called :the-"Member-Agree„1ent. ,
and
WHEREAS, such agreement provided for supplemental agree-
ments to clarify the assurances and make the obligations thereof
more specific, to satisfy legal requirements, and provide
security for the bonds to be issued thereunder; and
WHEREAS, the changes contained in this revision have
been negotiated to accomplish the purposes' set forth in the next "
above recital; now therefore, the said Member Agreement is
hereby revised to read as follows:
1. Definitions. Terms used herein that are defined in
the Development Fund Agreement have the same neani ng in tris
Agreement as in that agreement, unless otherviise specified, and{`__
in addition:
N
1
(a)",",t,rcI'mont" means the for
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Constrortion, Operation, and Financing of NCPA Geother:.al
3
Generating Unit Pio. 2 Project, as ,;:.ended from tiine to
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time.
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(b) "Bonds" means bonded indebtedness, loans, letters
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of credit or any other evidences of indebtedness issued
7
to finance the Project. For the purposes of this Agree-
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ment, Bonds whether issued by NCPA or by a nonprofit
9
corporation acting on behalf of NCPA shall be treated
10
as NCPA Bonds.
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(c) "Bond Indenture" means any indenture or other
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instrument pursuant to which (i) securities having the
13
benefit of Section 5(b) may be issued or (ii) money,
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the repayment of which is secured by Section 5(b), may
!S
be borrowed.
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(d) "Electric System" means all properties and
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assets, real and personal, tangible and intangible, of
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the Purchasing Participating Member now or hereafter
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existing, used or pertaining to the generation, trans-
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mission, transformation, distribution and sale of electric
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pourer and energy, including all midi tions, extensions,
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expansions, improvements and betterments thereto and
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equippings thereof; provided, however, that to the extent
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the Purchasing Partici pati ng Member is not the sole owner
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of an asset or property, only the Purchasing Participating
/ 26
Member's o:•inership interest in such asset or property
27
shall be considered to be part of its Electric Sys tem.
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3
(e) "Genera ti ng Pl ant" means the plan t provi ded 'for -
2
in the Shell hgreeinent.
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(f) "NCPA Geothermal Generating Unit ;;2 Project"
4
or ''Project" means the Generating Plant and all other
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NCPA works contemplated by the She ii Agreement, or %•,,hich
6
are necessary or convenient for delivering the output of
7
the Generating Plant to Participating Veribers or others.
3
(g) "Purchasing Participating Members" means those
9
Participating Members who participate in carrying out
10
the Shell Agreement by signing this Agreement.
11
(h) "Purchasing Participation Percentage" means
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those percentages derived by dividing the Participation
13
Percentage of each Purchasing Participating iM:ember by
-- 14
the sum of the Participation Percentages of all Purchasi
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Participating Members.
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(i) "Revenues" means all income, rents, rates, fees,
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charges, and other moneys derived by the Purchasing Parti -
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c i p a t i n g Flember from the ownership or operation of its
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Electric System, including, without limiting the gener-
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ality of the foregoing, (i) all income, rents, rates, j
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fees, charges, or other moneys derived from the sale,
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furnishing, and supplying of the electric power and
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energy and other services, facilities, and commodities
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sold, furnished, or supplied through the facilities of
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the Electric System, (ii) the earnings on and income
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derived from the i noes tment of such income, rents, rates.
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fees, charges or other moneys to the extent that the use
-)8
of such earnings and income is limited by or pursuant to
1 law to the E lr•ctric Systrin 1116 { i i i) the i.i•0t.rcI.15
2 by tine PurCh-as ing. Part icipat ir;r,• ;',r,b�r directly or in -
3 di rectly from the sale, lease or other di sposi tion of
4 a part of the Electric System as permitted hereby, but
5 the term "Revenues" shall not include customers' deposits
6 or any other deposits subject to refund until such de -
1 posits have become the property of the Purchasing Parti -
8 cipating Member.
9 0) "Trustee" means the trustee under a Bond
10 Indenture or., if trete is no trustee, the panty identified
11 therein as "Trustee" for purposes of this Agreement.
12 2. Purpose. The purpose of this Agreement is to allo-
13 Cate the electric power to be made available from the NCPA
14 Geothermal Generating Unit ,:2 to Purchasing Participating
15 Members, and to provide a niechan i sin for the financing of such
16 Project.
17 3. Construction and Operation. NCPA will use its best
18 efforts to finance, construct, clan, and operate the Pro -
.19 ject, and make all necessary replacements, and obtain all neces-
20 sary authority and rights, and do all things necessary and
21 convenient therefor. Purchasing Participating ilevlbers will
22 cooperate with NCPA to that end, and ,vill give any and all
23 clarifying assurances by supplemental agreements that may be
24 reasonably necessary in the opinion of NCPA's bond counsel to
25 make the obligation herein more specific, to satisfy legal re -
26 qu i rements and provide security for the Bonds , including, -
27 but not limited to, covenants on the issuance of additional
28
5
I inklebteuness payable out of Revonues of th,, Flectric System, if.
2 any.
3 The Bonds shall be secured only Y b tileRevenues
of the
4 Electric System of the Purchasing Participating i;embers. The
5 Bonds inay be issued by NCPA or by a nonprofit corporation
6 acting on behalf of NCPA, which for the purposes of this Agree-
7 meat are treated as NCPA Bonds. Any such nonprofit corporation
8 may hold title (fee or leasehold interest) to the Project during
9 the period. when its Bonds are outstanding, but shall theri
10 transfer ownership of the Project-to NCPA.
11 If Bonds are issued by a nonprofit corporation on behalf
12 of NCPA, NCPA shall transfer and. assign to such nonprofit cor-
13 poration that portion of the payments received hereunder from
14 Purchasing Participating Members which is sufficient to meet
15 j the nonprofit- corporation's obligations,. including debt service
16 on Bonds, and upon notice from NCPA. each Purchasing Participating
17 Member may be required to pay such portion directly to the non-
18 profit corporation. Such transfer and assignir,ent by NCPA shall
19 be made effective for such time as NCPA shall determine and pro-
20 vide.
21 4. Sale of Po_:er from Generating Plant. NCPA vii 11 do
22 all things necessary and possible to deliver the output of the
23 Project to Purchasing Participating Flembers in accordance :lith
24 their Purchasing Participation Percentages, at a point on or
25 adjacent to the Electric System of the Purchasing Participating
26 Merrber, reasonably well adapted to the ability of such f4ember to
27 utilize the power, and to maize all necessary and passible arra
gents for transmission of such pg::er over the lines of-
,8 others,
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and for additional po'::er required froin others as coserves o-iino;t
p1anni:d or t'mf'VQ0nCy SO, -vice interruptions.
5. Rates and Charnes. until Fonds are issued, total
costs of the Project to NCPA will be paid pursuant to the Develop
ment Fund Agreement.
(a) Com;nencing :;,ith the commercial operation of the
Project, NCPA or a nonprofit corporation undertaking , to
finance the Project on behalf of NCPA, shall fix charges
based on the anticipated power output of tine Project to
produce Revenues not exceeding the amounts anticipated
to be needed to meet the total costs to provide povrer from
the Project, including .but not limited to debt set -vice on
Bonds, purchase of steam and all other -payments provided
for under. the Shell Agreement, operation and maintenance
costs and necessary replacements, and a reasonable reserve
for contingencies, and to repay NCPA for all other Project
costs.
(b) Commencing with the issuance of Bonds for the
Project, but only to the extent that the funds provided
under Section 5(a) hereof are not sufficient for such
purpose and that the obligations under this Sec.tion 5(b)
of the Purchasing Participating i•1embers are pledged or
assigned at the sole discretion of NCPA under any security
agreement for Project Bonds of NCPA or a nonprofit cor-
poration which has .issued Project Bonds on behalf of NCPA,
each Purchasing Participating I:emnber shall pay to NCPA,
to such corporation or to an assignee of either of diem
(consent to which assignment is hereby given) an amount
7
L-A
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equal to such Purchasing Partir.ipat I[Iq ':ember's ritl-CAWasi-ng
2
Participation Percentage of the total cost to pay all
3
amounts of principal and interest on the Bonds and all
4
other payments required to be made under the Sond In=
S
denture or other agreement or instrui„ent providing for-.
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the is and repayment.of the Sends.
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The obligation of this Section 5 is incurred by each
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Purchasing Participating Iaember for the benefit of future
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holders of MCPA Project Bonds and for the provider of the
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steam under the Shell Agreement, among others, under the
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Project, and shall comiaence and continue to exist and be
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honored by Purchasing Participating t•;embers whether or
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not pot•:er is furnished to them from the Project at all
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times or at all, (which provision may be characterized
15
as an obligation to pay all --costs on "a take -or -pay basis
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whether or not such project output is delivered or pro -
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vided), to the extent that such a provision is, at the
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sole discretion of NCPA, included in any security agree.:
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ment for NCPA Project Bonds.
20
The Purchasing Participating Member shall make payments
21
under this Agreement solely from the Revenues of, and as
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an operating expense of, its Electric System, whether or
23
not the Project is completed, operable, operating, or
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retired and notwithstanding the suspension, interruption,
25
interference, reduction or curtailment of Project output.
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or the po::er and energy contracted for in whole or in part,
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for any reason whatsoever, to the extent that such a pro
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vision is, at the sole discretion of NCPA, includable in
L-A
.
C
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my security a�(irne:.ent for NCPA Project roads. Slrch Pay -
2
r;ent.s are not subject to any re,':uction, :ihether by offset
3
or otherwise, and are not conditioned upon perfors:;ance by
4
NCPA or any other Purchasing Participating .Member under
5
this Agreement or any other agreement. Nothing herein
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shall be construed as prohibiting Purchasing Participating
Member from using any other funds and revenues for pur--
8
poses of satisfying any provisions of this. Agreement.
9
No Purchasing Participating FSember shall be liable
10
under this Agreement for tine debts of any other Purchasing
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-Participating i•lember.
12
The Purchasing Participating Member covenants and
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agrees to establish and collect fees and charges for
l
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electric power furnished through.facilities of its.
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Electric System sui�ficient to provide Revenues-adeo,uate
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to meet its obligation under this Agreement and to pay
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any and all other amounts payable from or constituting
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a charge and lien upon any or all such Revenues.
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The Purchasing Participating Member covenants and
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agrees that it shall, at all tines, operate the proper -
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ties of its Electric System and the business in connec-
22
tion therewith in an efficient manner and at reasonable
23
cost and shall maintain its Electric System in good
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repair, working order, and condition.
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5A. Annual Budget and Billing Statement. NCPA will
(
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adopt an annual budget pursuant to Section 8.
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A billing statement prepared by .DCPA will be sent to
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the Purchasing Participating Member not later than the fifteenth
9
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( 15th) day after the end of the bi 11 i ng P(. .od show-i ng titre
2
amount payable by the Purchasing Participating L'ewber as its
3
Purchasin Partici atin Percentage of monthly costs, as month
9 P 9 _ Y
4
costs are defined in the Bond Indenture, for the preceding
5
1 billing period and the amount of any credits. Amounts shown on
6
the billing statement are due and payable thirty (30) days after
7
the date of the billing statement. Any amount due and 'not paid
8
by the Purchasing Participating Member within thirty (30) days
9
aftgr the date of the billing statement shall bear interest from
10
the due date until paid at an annual rate to be established by
11
NCPA at the time of the adoption of the Annual Budget.
12
On or .before the day five (5) calendar months after the
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cnd of each fiscal year, 14CPA shall submit to the Purchasing
14
Participating Member a statement of the aggregate monthly costs
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for such fiscal.-year. If the actual monthly costs and the
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Purchasing Participating i•9enber's Purchasing Participation Per-
17
centage thereof, pursuant to this Agreement or under the Bond
18
Indenture, and other amounts payable for any fiscal year exceed.
19
tine estimate thereof on the basis of :•rhich the Purchasing Parti-
�0
cipating member has been billed, the deficiency shall be added
21
to the next succeeding billing statement. If the actual aggre-
22
gate monthly costs and the Purchasing Participating Member's
23
Purchasing Participation Percentage thereof and any adjustment
24
of or credit to the Purchasing Participating Plember's Purchasing
25
Participation Percentage thereof or other amounts payable for
26
any fiscal year are less than the estimate on the basis of which
k 27
the Purchasing Participating ilember has been billed, NCPA shall,
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crf.dit Such excess atjailist the . urchasing Participating ,:E:::.�,�_r s
tiext billinti stati'!;i:nt.
If a Purchesina Participating shall question or
dispute the correctness of any billing statement by NCPA, it
shall pay NCPA the amount claimed %Aen due and shall ,•ri thin
Ithirty (30) days of its receipt request an explanation from
NCPA. If the bill is determined to be incorrect, WCPA will
issue a corrected bi 1 1 and refund any ar,?ount which may be due
the Purchasing Participating F,einber.
If NCPA and the Pur'chasino' Participating i-lembe'r fail to
acree o*n* the 'corre'ct'nessof' a bill tiii.thi.n th*i,-rt''--(3J)' days'•
after the Member has requested an explanatiori� 'the -parties 'shall
promptly su6fliit''tile disoui to to arbitration under section 1280
et seq: of the Code of Ci'vi l Procedure..
'5B_ Obligation in the Event -of befault. Upon failure
of the Purchasing Partiti'pating flember to make any payrient in
full when due under this Agreement or to perform any other obli-
gation hereunder, NCPA shall make demand upon such Purchasing
Participating i•?ember, and if said failure is not remedied within
thirty (30) days from the date of such demand, it shall consti-
tute a default at the expiration of such period. Notice of such
demand shall be provided to the other Purchasing Participating
Members by NCPA.
Upon the failure of the Purchasing Participating Member
to make any payment -Which failure constitutes a default under
this, Agrees -hent, NCPA shall use its best efforts to sell and
transfer all or a portion of such Purchasing Participating
Member's Purchasing Participation Percentage of Project output
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crf.dit Such excess atjailist the . urchasing Participating ,:E:::.�,�_r s
tiext billinti stati'!;i:nt.
If a Purchesina Participating shall question or
dispute the correctness of any billing statement by NCPA, it
shall pay NCPA the amount claimed %Aen due and shall ,•ri thin
Ithirty (30) days of its receipt request an explanation from
NCPA. If the bill is determined to be incorrect, WCPA will
issue a corrected bi 1 1 and refund any ar,?ount which may be due
the Purchasing Participating F,einber.
If NCPA and the Pur'chasino' Participating i-lembe'r fail to
acree o*n* the 'corre'ct'nessof' a bill tiii.thi.n th*i,-rt''--(3J)' days'•
after the Member has requested an explanatiori� 'the -parties 'shall
promptly su6fliit''tile disoui to to arbitration under section 1280
et seq: of the Code of Ci'vi l Procedure..
'5B_ Obligation in the Event -of befault. Upon failure
of the Purchasing Partiti'pating flember to make any payrient in
full when due under this Agreement or to perform any other obli-
gation hereunder, NCPA shall make demand upon such Purchasing
Participating i•?ember, and if said failure is not remedied within
thirty (30) days from the date of such demand, it shall consti-
tute a default at the expiration of such period. Notice of such
demand shall be provided to the other Purchasing Participating
Members by NCPA.
Upon the failure of the Purchasing Participating Member
to make any payment -Which failure constitutes a default under
this, Agrees -hent, NCPA shall use its best efforts to sell and
transfer all or a portion of such Purchasing Participating
Member's Purchasing Participation Percentage of Project output
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as
for al l or -a portion of the remainder t , : Lr-, cin of this A,,,Jr.ee,-..
;fent. tf all or any portior) of the Purchasing Participating
Purchasing Participation Percentage of Project output
is transferred, the Purchasing Participating Fle:fl,ber's share shal
not be reduced, and the purchasing Parti ci pati ng ilerrber shall
remain liable to NCPA to pay the full amount of its Purchasing
Participation Percentage of monthly costs as if such sa.le had
not been made, except that such liability shall be discharged
to the extent that NCPA shall receive payment from the transferee
'thereof. If such default small cause NCPA to be in default under
I
the Bond Indenture, NCPA may terminate the provisions of this
Agreement insofar as the same entitle the P urcliasing Participat-
ing �iernber to its Purchasing Participation Percentage of Project
output. Except for such termination, the obligations of the
Purchasing Participating' Member under tris A reernent shall con -
g
tinue in full force and effect.
Upon the failure of any Purchasing Participating fjember
to make any payment which failure constitutes a default under
this Agreement, or upon termination, and except as transfers are
;rade pursuant to the foregoing paragraph, the Purchasing Partici-
pating i'lernber's Purchasing Participation Percentage of each non -
defaulting Purchasing Participating iiember shall, to the extent
included in the Bonds, be automatically increased for the re-
maining term of this Agreement pro rata with that of the other
nondefaulting Purchasing Participating Members and the defaulting
Purchasing Participating !'ember's Purchasing Participation
Percentage shall, {but only. for purposes of_ corrputi ng the respeL
tive Purchasing Participation Percentages of the nondefaulting
12
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'' PT.rrchasing Pa"rtir.ipating r'o-ibeirs), '.e rr,d,it: ed Corrospoil, iir-,yIy;
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I providod, ho,;r_ver, that tn(2 suin of su,:h i rrcreases for ally non -
3
defaulting Purchasing Particii:ating ':e:.her small not exceed,
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;rithout written consent of the nondefault.in9 Purchasing Partici-
5
pating i•ieribers, an accumulated maxiv-,ium of 25% of the nondefaultinc
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Purchasing Participating i•iember's original Purchasing Partici pa-
7
tion Percentage.
3
If the Purchasing Participating Member shall fail or.
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refuse to pay any amounts due to NCPA, the fact that other
10
Purchasing Participating iiembers have increased their obligations
11
to make such payrrrents shall not relieve the defaul ti ng Purchasing
12
Participating ilembe'r of its liability for such payments, and
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! any Purchasing Participating hien.bers increasing such obligation
14
shall have a right of recovery from the defaulting Purchasing
15
Participating -i ember to the extent of such respective increase.
16
The Trustee shall have the right, as a third party bane -
17
ficiary, to initiate and maintain suit to enforce this Agreement
13
to the extent provided in the Bond Indenture.
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5C. Covenant :wi th Respect to Additional Ob 1_i pati ons
20
of Purchasing Participatinq 'Member: The Purchasing Participating
21
Member shall not issue bonds, notes or other evidences -of in -
22
debtedness, or cause indebtedness to be issued on its behalf
23
or.enter into an agreement to take or to take -or -pay for po,::er
24
and energy from a project, payable from the Revenues of its
25
Electric System on a parity with or superior to the payment of
26
operating expenses of its Electric System, (including monthly
27
costs as defined in the Bond Indenture), unless such indebted -
23
ness or agreement is on a parity with operating expenses and
13
1 ' either ( i ) an inriep0nrient consuItinq engineer or onginee rifig
2 firin or corporation having a national and favorable reputation
3. for speciai skill, knowledge and experience in analyzing the
4 operations of electric utility systems shall render and file with
5 ?;CPA a iritten opinion that the incurrence of any such•.irldebted-
6 ness or the entering into any such agreement will not materially
7 adversely affect the capacity of such Purchasing Participating
3 ,'lember to greet its obligations and covenants under this Agree -
9 meat; or (ii) the annual payments under such indebtedness or
10 agreement are fixed and tine Revenues for the fiscal year next
11 preceding the approval of such indebtedness or agreement are at
12 least (a) 1.25 times the maximum annual amount of such payments
13 pursuant to Section 5(b) hereof and under tine proposed indebted-
1 14 ness or agreement and all other. similar indebtedness and agree -/{t/
15 raents, plus (b) the sum of ail 'oLher anrourits "pay"abl,e r r orrr or --
1.6 constituting a charge or lien upon any of the Revenues in such
17 preceding fiscal year.
13. 6. Transfer, Assiqnnent,Sale and Exchan«e of Power
19 a_nd_Rights Thereto. This Section places no restraint upon any
20 transfer, assignment, sale or exchange of Project power or
21 rights thereto, of any Purchasing Participating t,ember when such
22 transfer, assignment, sale or exchange is for the direct or
23 indirect use of the customers of its Electric System. truth
24 regard to such transfers, assignments, sales or exchanges the
25 Purchasing Participating Member has unfettered rights so far
26 as this /agreement is concerned. �
tom, 27. As used in this Section, the transfer, assignment, �.
23 exchange or sale of power includes the transfer, assignment,
14
41
i 2
\ 3
4
5
6
7
8
9
10
11
12
13
( 14
16
17
18
19
20
21
22
23
24
25
26
27
28
exchant,e or sale of ria};ts 1. F;i�reto.
(a) As to ,,ny olit.r t.jl`iposltliin VF frOji?ct 1)4:•:t?'t', ally
Purchasing Participatinki i". oil?er !nay su1)icct to its C.bli-
gations under Section 5 of this Atgreel,,ent transfer.-
assign,
ransfer;assign, sell or exchan e power to 'r,hi ch i t is esti tled
under this Agreement to others only as provided for in
tris Section.
(b) Such power 'shall be offered first to those
other Purchasing Participating Piembers in this Project
which desire to acquire such po;•,er for the use of the
customers of their Electric Systems solely. Each such
Purchasing Participating Mlembe r shall be limited i n its
right to such po:•:er as .against any other Purchasing
Participating irember to its Purchasing Participation
Percentage 'thereof.
(c) Any such poser not accepted by other Purchasing
Participating Members shall be offered secondly to such
members of the Development Fund which are not Purchasina
Participating flembers, 4hich shall be limited in their
rights as against each other to the proportion ahich their
Participation Percentage is to file total of the Partici-
pation Percentage of all such members.
{d} Such power may then be offered to any person or
entity provided that at no time shall any portion of such
power be transferred, assigned, sold or exchanged with
nonexempt entities as defined in section 103(b) of the
Internal Revenue Code of 1954, as amended, if. such
transfer, sale or exchange will cause any Bonds issued
l5
1
2
3
4
5
6
7
8
9
10
11
12
13
_ 14
0
16
17
18
19
90
21
22
23
24
25
26
27
28
c
�i th respect to the Project to I)e tr ea ted as i n d I J s tri al
r etienue br,ncfs ,)i thin the nieani ng of secti on 103(b) of
ta > >
she Inger•nal Revenue Code of 1954, as ��►n r_nded, �.nd
subject to federal income taxes.
(e) Any such transfer, assigniient, sale or exchange
of power provided for herein small be in accordance with
terms and conditions set .forth by the Developr,.ent Fund
Agreement and subject to the principles of economic
dispatch.
( f ) The Participating i-ienibers receiving po,•;er under
paragraph (b) or (c) above shall pay the transferring
Purchasing Participating f;eriiber for such power an amount
not more than the cost of such power to such transferring
Purchasingg Participating i':enii;er under Section 5 of this
Agreement plus all. other costs of such Purchasing Parti,
-C
cipating IMember related to such transferred power.
(g) To the extent not prohibi ted by existing contracts
no Purchasing Parti ci pati ng Me►nber sha 1 1 purchase povier
from any other source exclusive of its ov.n generating
projects if poaer is available under this Section at
lower cost, to the extent of such availability and any
other Participating I'lember receiving power by transfer,
assignment,_ sale or exchange hereunder shall agree to the
same restriction as a condition of such receipt.
(h) Upon request NCPA will arrange such transaction
under this Section as is desired by a Purchasing Partici-
pa ti ng Member. L
W
17
I (i)N, o Purrh,1,ing ?sr<:t.ifig Me:r,}}rr shall tr:n:;_r
2
o::nership of subs4-anLiiaI I al ] of its E11_ctric Sys 'L2 io
3
ariother esti ty until it has f r s t coli pl ied wi th the pro-
4
visions of this subsection. A consolidation :•lith another
5
governirentaI entity or than,- in governmental form is
f
6
-
not deemed a transfer of ov.nershi p.
I
(
( 1) Gefore 1 ne date of such trans fer, the
8
ri guts of ,the trans ferri ng Purchas i ng' Parti c pati ng
9
hSember under this Agreement shall have been disposed
10
of by transfer, assignment, sale or exchange }pursuant
11
to provisions of subsections (a), (b), (c) and (e) of
12
this Section 6, and sobject.to the limitati.on5 of sub-
13
section 6(d), effective as of the date of tine transfer,
14
(2) Such disposition of power rust be under
15
terms and condi Lions that provide assurances to the
16
holders of any-outstanding Bonds secured by the
t7
Revenues of the Electric System of the Purchasing
18
Participating Member t,rhi ch is transferring otivnershi p
-
19
of its Electric System at least equivalent to the
20
pledge herein of such Revenues, in order that NCPA's
21
obligations under this Agreement, and under the Shell
22
Agreement, and under Bond Indentures for the Project,
23
and under other agreements made or to be made by
24
NCPA to carry out the ,.Project, may be promptly and
25
adequately met. NCPA may require that sufficient
iI
26
moneys to discharge such obligations be irrevocably
`
27 I
set aside and maintained in a trust account, as a
28
condition to the transfer of the Electric System, .if
17
r>1:1
1
no ucher adlequ ate .assurance is av3i 1 able.
z
(j) No transfers, assignments, sales or exch,anYes
3
shall diminish any Purchasing Parti cipat! ng ilember's
4
Project allocation without its consent, except in the
5
case of a Purchasing Participating i•ieinber which sells
6
its Electric System, and then only as provided in sub-.
7
section (i), and except•as provided in Section 5B.
3
7. Insurance and Inde+rinification. NCPA will obtain
9
comprehensive .and adequate casualty insurance on this Project.
10
:'DCPA small also indemnify and hold harmless its Purchasing
11
Partici pati ng Mlembers from any liability for bodily injury or
12
property dasnage resulting from any accident or occurrence arising
13
out of or in any :.iay related to its construction and operation
14
of such Project, and shall. obtain insurance for such rode+r:nific
_
15
tion agreements in limits fixed by NCPA. .
16
8. Decisions. A1"1 'decisions and expenditures by NCPA
17
under this Agreement shall be made in the manner provided for
18
decisions and expenditures in the Development Fund Agreement.
19
9. Term. This Agreement shall not take effect until
20
it has been executed by all Participating 1•Sernbers . This Agree-
21
ment shall not be binding upon Plumas-Sierra aural Electric
22
Cooperative until approved in writing by the Adrninistrato.r of
23
the Rural Electrification Administration. The term of this
24
Agreement shall continue until all Bonds i.ssue.d have been re-
25
tired, or full provisions made for their retirement, including
26
interest until retirement date.
27
10. Termination and Amendments. This Agreement shall
23
not be subject to termination by any party under any circum -
r>1:1
. '
, .
` ~ }
2
t,Lor ba�(A -inon the defal "Of any oLher parly
�\
3 as specifically provided herein.
4 3o long as any of the 8onds are outstanding and unpuid
5 or funds are not set aside for the poyment or retirement thereof
` 6 in accordance with the D3od Indenture, this Agreement shall not
7 be amended, modified or oLhnrxiae changed, or rescih-ded, by
8 ag'reemcnt of the parties: (i) in any manner that will have a ,
9 material adverse effect on the payment of the principal mf/ .and
.
\O premium, if any, and interest on the Bonds as '-they respectively
il become payable, (ii) in any manner that would limit or rcdoce
12 the obligation of the Purchasing Participating Members to make
13 pyments pursuant to this Agreement, or (iii) without the consent
14 of the Trustee' In this regard, NCPA shall cause notice of the �
^' 15 proposed execution and delivery of any such amendn)ent together
'
10 with a copy of the pro.pn.sed amendment to. be 'mailed by first '
'
17 class mail, postage prepaid, to the Trustee at least fifteen /15\
18 days prior to the proposed date of execution and delivery of any
~
19 such amendment' The Trustee shall be deemed to have consented
20. to the execution and delivery of any such amendment if NCPA
'
21 does not receive o letter of protest or objection thereto signed
22 by or on behalf of the Trustee on or before 4:30 o'clock P.m.,
23 local time, at the principal office of the NCPA, on the fifteenth
24 (15th) day after the moiling of said notice and a copy of the pro
25 posed amendment.
26 IN UlTU[S3 HHEkEOF each Purchasing Participating Member
27 has executed this Agreement with the approval of its governing
\
28 body, and caused its official seal to be affixed and MCP& has
lB
U 8
_ o n
1
3
4
5
6
7
s
9i
10
11
12
13
14
15
16
17
is
19
20
21
22
23
24
25
26
27
authorizod this Agroou,ont in accordaticc ,qi Ln ti,e auorir.;t1on ..
of its Cc„unission.
NORMERN CALIFORNIA POWER
AGrNCY
By
CI TY 0`F AI_AMIE DA
—
and
CITY OF BIGGS
By___
- -- —
and
CITY OF GRIDLEY
BY -..----
a n d
y-. ---and
CITY OF HEALOSBURG
Byand
CIfY OF LODI
By-
and
CITY OF L014POC
By
and
0
CITY OF ROSEVILLE
By
and
CITY OF SANTA CLARA
By
and
CITY OF UKIAH
By--- —__----- -----
and
PLUMAS-SIERRA RURAL ELECTRIC
COOPERATIVE
By - --- - - ---
a n d - - — ----- --