HomeMy WebLinkAboutAgenda Report - August 19, 2015 C-13AGENDA ITEM
-13
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Second Phase Agreement
for Renewable Energy Power Purchase Agreement with Northern California Power
Agency
MEETING DATE: August 19, 2015
PREPARED BY: Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Manager to execute a
Second Phase Agreement for Renewable Energy Power Purchase
Agreement with the Northern California Power Agency.
BACKGROUND INFORMATION: Renewables Portfolio Standard (RPS) requirements state that 20,
25, and 33 percent of the City's retail energy sales be supplied by
renewable energy by the end of 2013, 2016 and 2020 respectively.
Existing generation resources, coupled with excess surplus and historic carryover from prior years, will
enable the City to meet these current requirements. However, pending legislation will require utilities to
procure renewable energy at an amount equal to 50 percent of its retail sales by 2030.
As such, Northern California Power Agency (NCPA) is assisting its members with identifying future needs
and opportunities to meet current and anticipated compliance targets. In May 2015, NCPA issued a
Request for Proposals for up to 40 megawatts of photovoltaic solar. Proposals were received from six
respondents, including multiple facilities with terms ranging from 2 to 30 years and prices ranging from
the high $40's to high $60's per megawatt -hour. Due to the confidential nature of the proposals and
potential future negotiations, specific details cannot be provided at this time. NCPA staff and members
reviewed the proposals and identified projects that would fit their future needs at a competitive price.
Lodi, Biggs, Gridley and BART are proposing to move forward and begin negotiations on two projects. As
such, a Second Phase Agreement is needed to authorize NCPA to negotiate Power Purchase
Agreements (PPAs) on members' behalf and to authorize expenditures associated with NCPA's efforts.
The total cost associated with the Second Phase Agreement, attached as Exhibit A, shall not exceed
$35,000, with Lodi's share at approximately 50 percent. The Second Phase Agreement will expire upon
the successful negotiation of one or more PPAs, approval by each member's governing board, execution
of a Third Phase Agreement to obligate members to the terms of the PPAs, and final execution of all
PPAs. All activities are anticipated for completion by December 2015.
On July 15, 2015, the Risk Oversight Committee received a report on this agenda item and
recommended City Council approval.
FISCAL IMPACT: Costs for the Second Phase Agreement shall not exceed $17,500.
APPROVED:
Stephen Schwabe er, City Manager
Adopt Resolution Authorizing City Manager to Execute Second Phase Agreement for Renewable Energy Power Purchase
Agreement with Northern California Power Agency
August 19, 2015
Page 2 of 2
FUNDING AVAILABLE
Included in the FY2015/16 Budget Account No. 50060500.
Deputy City Manager/Internalrvic s Director
abe# A.-Kirkley
lectric Utility Director
PREPARED BY: Melissa Price-Cadek, Rates & Resources Manager
EAK/MPC/1st
EXHIBIT A
SECOND PHASE AGREEMENT
FOR
RENEWABLE ENERGY
POWER PURCHASE AGREEMENT
FOR
NCPA 2015 SOLAR PV PROJECT
TABLE OF CONTENTS
Section1.
Definitions.....................................................................................................3
Section2.
Purpose..........................................................................................................8
Section 3.
Negotiation of Sale and Purchase of Product..........................................8
Section 4.
Billing and Payments..................................................................................8
Section 5.
Cooperation and Further Assurances.....................................................
11
Section 6.
Transfer of Rights by Participants...........................................................11
Section 7.
Term and Termination..............................................................................12
Section 8.
Withdrawal of Participants......................................................................12
Section 9.
Settlement of Disputes and Arbitration.................................................13
Section 10.
Miscellaneous.............................................................................................13
EXHIBIT A
i
i
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
This SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY ("this
Agreement") is dated as of , 20_ by and among the Northern California
Power Agency, a joint powers agency of the State of California ("NCPA"), and the
signatories to this Agreement other than NCPA ("Participants"). NCPA and the
Participants are referred to herein individually as a "Party" and collectively as the
"Parties".
RECITALS
A. NCPA has heretofore been duly established as a public agency pursuant to
the Joint Exercise of Powers Act of the Government Code of the State of California and,
among other things, is authorized to acquire, construct, finance, and operate buildings,
works, facilities and improvements for the generation and transmission of electric capacity
and energy for resale.
B. Each of the Participants is a signatory to the Joint Powers Agreement which
created NCPA and therefore is a Member.
C. Each of the Participants to this Agreement have executed the Amended and
Restated Facilities Agreement which establishes the framework under which Project
Agreements are created for the development, design, financing, construction, and
operation of specific NCPA Projects.
D. The Participants desire NCPA to enter into a Renewable Energy Power
Purchase Agreement ("Renewable PPA") with one or more respondents to the NCPA 2015
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
Request for Proposal for Renewable Energy Supply ( "Seller"), to purchase electric
capacity and energy produced by eligible renewable resources for the benefit of the
Participants' customers.
E. Each Participant is authorized by its Constitutive Documents to obtain
electric capacity and energy for its present or future requirements, through contracts with
NCPA or otherwise.
F. To enable NCPA to enter into the Renewable PPA on behalf of the
Participants, pursuant to the terms and conditions of the Amended and Restated Facilities
Agreement, NCPA and the Participants wish to enter into this Agreement to provide all
means necessary for NCPA to negotiate the Renewable PPA, and to enable and obligate
the Participants to pay NCPA for all costs its incurs for undertaking the foregoing
activities.
G. Upon full execution of this Agreement, NCPA will enter into negotiations
with one or more respondents to the 2015 RFP for Renewable Energy on behalf of the
Participants.
H. Contingent upon negotiating mutually acceptable terms and conditions with
one or more RFP respondents, NCPA will present the proposed Renewable PPA to the
NCPA Commission for review and approval. Contemporaneously, NCPA will seek final
approval from Participants through a Third Phase Agreement for Renewable Energy that
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
would govern the rights and obligations of NCPA and Participants related to the sale and
purchase of Products.
Each of the Parties intends to observe the provisions of this Agreement in
good faith and shall cooperate with all other Parties in order to achieve the full benefits of
joint action.
The Parties desire to equitably allocate costs of NCPA's provision of services
under this Agreement among the Participants.
K. The Participants further desire, insofar as possible, to insulate other
Members who are not Participants, from risks inherent in the services and transactions
undertaken on behalf of the Participants pursuant to this Agreement.
NOW, THEREFORE, the Parties agree as follows:
Section 1. Definitions.
1.1 Definitions. Whenever used in this Agreement (including the Recitals
hereto), the following terms shall have the following respective meanings, provided,
capitalized terms used in this Agreement (including the Recitals hereto) that are not
defined in Section 1 of this Agreement shall have the meaning indicated in Section 1 of the
Power Management and Administrative Services Agreement:
1.1.1 "Agreement" means this Second Phase Agreement for Renewable
Energy including all Exhibits attached hereto.
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
1.1.2 "CAISO" means the California Independent System Operator
Corporation, or its functional successor.
1.1.3 "CAISO Tariff" means the duly authorized tariff, rules, protocols
and other requirements of the ISO, as amended from time to time.
1.1.4 "Capacity Attributes" means any and all current or future defined
characteristics consistent with the operational limitations of the Project, certificates,
tags, credits, ancillary service attributes, or accounting constructs, howsoever entitled,
including Resource Adequacy Benefits, Flexible Capacity Benefits, and any tracking or
accounting associated with the foregoing, intended to value any aspect of the capacity
of the Project to produce Energy or ancillary services, attributed to or associated with
the Project.
1.1.5 "Constitutive Documents" means, with respect to NCPA, the Joint
Powers Agreement and any resolutions or bylaws adopted thereunder with respect to
the governance of NCPA, and with respect to each Participant, the California
Government Code and other statutory provisions applicable to such Participant, any
applicable agreements, charters, contracts or other documents concerning the
formation, operation or decision making of such Participant, including, if applicable, its
City Charter, and any codes, ordinances, bylaws, and resolutions adopted by such
Participant's governing body.
4
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
MWh.
1.1.6 "Energy" means electric energy expressed in units of kWh or
1.1.7 "Environmental Attributes" means any and all credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, attributable to the
generation from the Project, as the case may be, and its displacement of conventional
energy generation. Environmental Attributes include: (i) any avoided emissions of
pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx),
carbon monoxide (CO) and other pollutants; (ii) any avoided emissions of carbon
dioxide (CO2), methane (CH4) and other greenhouse gases that have been determined
by the United Nations Intergovernmental Panel on Climate Change to contribute to the
actual or potential threat of altering the Earth's climate by trapping heat in the
atmosphere; and (iii) the reporting rights to these avoided emissions such as, but not
limited to, a REC.
Environmental Attributes do not include: (i) any Energy, capacity,
reliability or other power attributes from the Project, (ii) production tax credits
associated with the construction or operation of the Project, and other financial
incentives in the form of credits, reductions, or allowances associated with the Project
that are applicable to a state or federal income taxation obligation, (iii) fuel -related
subsidies or "tipping fees" that may be paid to Seller to accept certain fuels, or local
subsidies received by Seller or the owners of the site for the destruction of particular
5
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
pre-existing pollutants or the promotion of local environmental benefits, or (iv)
emission reduction credits encumbered or used by the Project for compliance with
local, state, or federal operating and/or air quality permits.
1.1.8 "Flexible Capacity" has the meaning set forth in the CAISO Tariff.
1.1.9 "Flexible Capacity Benefits" means the rights and privileges
attached to any generating resource that satisfy any entity's Flexible Capacity
requirement.
Agreement.
1.1.10 "NCPA" has the meaning set forth in the recitals hereto.
1.1.11 "Participant" has the meaning set forth in the recitals of this
1.1.12 "Power Management and Administrative Services Agreement"
means the NCPA Power Management and Administrative Services Agreement, dated
as of October 1, 2014 between NCPA and the Members who are signatories to that
agreement by which NCPA provides Power Management and Administrative Services.
1.1.13 "Product" means Energy, Capacity Attributes and Environmental
Attributes delivered to the Participants pursuant to the Renewable PPA.
1.1.14 "Project" or "Renewable PPA" means the Renewable Energy
Power Purchase Agreement to be negotiated by NCPA and Seller, under which NCPA,
on behalf of the Participants, purchases Product from newly constructed solar
photovoltaic resources.
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
1.1.15 "Party" or "Parties" has the meaning set forth in the preamble
hereto; provided that "Third Parties" are entities that are not Party to this Agreement.
1.1.16 "RPS" or "Renewable Portfolio Standard Program" means the
State of California Renewable Portfolio Standard Program, as codified at California
Public Utilities Code Section 399.11, et seq.
Agreement.
1.1.17 "Seller" has the meaning set forth in the recitals of this
1.1.18 "Term" has the meaning set forth in Section 7.
1.2 Rules of Interpretation. As used in this Agreement (including the Recitals
hereto), unless in any such case the context requires otherwise: The terms "herein,"
"hereto," "herewith" and "hereof" are references to this Agreement taken as a whole and
not to any particular provision; the term "include," "includes" or "including" shall mean
"including, for example and without limitation;" and references to a "Section,"
"subsection," "clause," "Appendix", "Schedule", or "Exhibit" shall mean a Section,
subsection, clause, Appendix, Schedule or Exhibit of this Agreement, as the case may be.
All references to a given agreement, instrument, tariff or other document, or law,
regulation or ordinance shall be a reference to that agreement, instrument, tariff or other
document, or law, regulation or ordinance as such now exists and as may be amended
from time to time, or its successor. A reference to a "person" includes any individual,
partnership, firm, company, corporation, joint venture, trust, association, organization or
7
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
other entity, in each case whether or not having a separate legal personality and includes
its successors and permitted assigns. A reference to a "day" shall mean a Calendar Day
unless otherwise specified. The singular shall include the plural and the masculine shall
include the feminine, and vice versa.
Section 2. Purpose.
The purpose of this Agreement is to: (i) set forth the terms and conditions under
which NCPA shall negotiate the Renewable PPA on behalf of the Participants, (ii)
authorize NCPA, acting on behalf of the Participants, to engage in all activities related to
that basic purpose, and (iii) specify the rights and obligations of NCPA and the
Participants with respect to the negotiation of the Renewable PPA.
Section 3. Negotiation of Sale and Purchase of Product.
By executing this Agreement, each Participant acknowledges and agrees to be
bound by the terms and conditions of the Agreement. NCPA shall negotiation the terms
and conditions of the Renewable PPA with one or more respondent to the 2015 Request for
Proposals for Renewable Energy Supply, on behalf of the Participants. Participants agree
to pay NCPA for any administrative costs, including legal fees, associated with the
activities under this Agreement, which are estimated at a not -to -exceed amount of thirty-
five thousand dollars ($35,000). NCPA shall allocate costs to Participants in proportion to
such Participant's Project Participation Percentage.
Section 4. Billing and Payments
8
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
4.1 Participant Payment Obligations. Each Participant agrees to pay to NCPA
each month its respective portion of the administrative costs associated with negotiation
and implementation of the Renewable PPA, and all other costs for services provided in
accordance with this Agreement and the Amended and Restated Facilities Agreement.
4.2 Invoices. NCPA will issue an invoice to each Participant for its share of
administrative costs associated with negotiation and implementation of the Renewable
PPA, and all other costs for services provided in accordance with this Agreement and the
Amended and Restated Facilities Agreement. Such invoice may be either the All
Resources Bill or separate special invoice, as determined by NCPA. At NCPA's discretion,
invoices may be issued to Participants using electronic media or physical distribution.
4.3 Payment of Invoices. All invoices delivered by NCPA (including the All
Resources Bill) are due and payable thirty (30) Calendar Days after the date thereof;
provided, however, that any amount due on a day other than a Business Day may be paid
on the following Business Day.
4.4 Late Payments. Any amount due and not paid by a Participant in
accordance with Section 4.3 shall be considered late and bear interest computed on a daily
basis until paid at the lesser of (i) the per annum prime rate (or reference rate) of the Bank
of America NT&SA then in effect, plus two percent (2%) or (ii) the maximum rate
permitted by law.
9
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
4.5 Billing Disputes. A Participant may dispute the accuracy of any invoice
issued by NCPA under this Agreement by submitting a written dispute to NCPA, within
thirty (30) Calendar Days of the date of such invoice; nonetheless the Participant shall pay
the full amount billed when due. If a Participant does not timely question or dispute the
accuracy of any invoice in writing, the invoice shall be deemed to be correct. Upon review
of a submitted dispute, if an invoice is determined by NCPA to be incorrect, NCPA shall
issue a corrected invoice and refund any amounts that may be due to the Participant. If
NCPA and the Participant fail to agree on the accuracy of an invoice within thirty (30)
Calendar Days after the Participant has disputed it, the General Manager shall promptly
submit the dispute to the Commission for resolution. If the Commission and the
Participant fail to agree on the accuracy of a disputed invoice within sixty (60) Calendar
Days of its submission to the Commission, the dispute may then be resolved under the
mediation and arbitration procedures set forth in Section 9 of this Agreement. Provided,
however, that prior to resorting to either mediation or arbitration proceedings, the full
amount of the disputed invoice must be paid.
4.6 Billing/Settlement Data and Examination of Books and Records.
4.6.1 Settlement Data. NCPA shall make billing and settlement data
available to the Participants in the All Resources Bill, or other invoice, or upon request.
NCPA may also, at its sole discretion, make billing and settlement support information
available to Participants using electronic media (e.g. electronic data portal).
10
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
Procedures and formats for the provision of such electronic data submission may be
established by the Commission from time to time. Without limiting the generality of
the foregoing, NCPA may, in its reasonable discretion, require the Participants to
execute a non -disclosure agreement prior to providing access to the NCPA electronic
data portal.
4.6.2 Examination of Books and Records. Any Participant to this
Agreement shall have the right to examine the books and records created and
maintained by NCPA pursuant to this Agreement at any reasonable, mutually agreed
upon time.
Section 5. Cooperation and Further Assurances.
Each of the Parties agree to provide such information, execute and deliver any
instruments and documents and to take such other actions as may be necessary or
reasonably requested by any other Party which are consistent with the provisions of this
Agreement and which do not involve the assumption of obligations other than those
provided for in this Agreement, in order to give full effect to this Agreement and to carry
out the intent of this Agreement. The Parties agree to cooperate and act in good faith in
connection with obtaining any credit support required in order to satisfy the requirements
of this Agreement.
Section 6. Transfer of Rights by Participants.
6.1 A Participant has the right to make transfers, sales, assignments and
exchanges (collectively "transfers (s)") of its Project Participation Percentage and rights
11
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
thereto. If a Participant desires to transfer a portion or its entire share of the Project for a
specific time interval, or permanently, NCPA will, if requested by such Participant, use its
best efforts to transfer that portion of the Participant's share of the Project.
6.2 Before NCPA may transfer an excess Project share pursuant to Section 6.1 to
any person or entity other than a Participant, it shall give all Participants the right to
purchase the share on the same terms and conditions. Before NCPA may transfer an
excess Project share pursuant to section 6.1 to any person or entity other than a Member, it
shall give all Members the right to purchase the share on the same terms and conditions.
Such right shall be exercised within thirty (30) days of receipt of notice of said right.
No transfer shall relieve a Participant of any of its obligations under this
Agreement except to the extent that NCPA receives payment of these obligations from a
transferee.
Section 7. Term and Termination.
This Agreement shall become effective when it has been duly executed by all
Participants, and delivered to and executed by NCPA (the "Effective Date"). NCPA shall
notify all Participants in writing of the Effective Date. This Agreement shall commence on
the Effective Date and shall continue until the Agreement terminates, which occurs either:
7.1 The negotiations of the Renewable PPA are terminated by NCPA or Seller; or
7.2 Upon the effective date of the Third Phase Agreement for Renewable Energy.
Section 8. Withdrawal of Participants.
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
No Participant may withdraw from this Agreement except as otherwise for
provided herein.
Section 9. Settlement of Disputes and Arbitration.
The Parties agree to make best efforts to settle all disputes among themselves
connected with this Agreement as a matter of normal business under this Agreement. The
procedures set forth in Section 10 of the Power Management and Administrative Services
Agreement shall apply to all disputes that cannot be settled by the Participants
themselves; provided, that the provisions of Section 4.5 shall first apply to all disputes
involving invoices prepared by NCPA.
Section 10. Miscellaneous.
10.1 Indemnification and Hold Harmless. Subject to the provisions of Section
10.4, each Participant agrees to indemnify, defend and hold harmless NCPA and its
Members, including their respective governing boards, officials, officers, agents, and
employees, from and against any and all claims, suits, losses, costs, damages, expenses
and liability of any kind or nature, including reasonable attorneys' fees and the costs of
litigation, including experts, to the extent caused by any acts, omissions, breach of
contract, negligence (active or passive), gross negligence, recklessness, or willful
misconduct of that Participant, its governing officials, officers, employees, subcontractors
or agents, to the maximum extent permitted by law.
10.2 Several Liabilities. No Participant shall, in the first instance, be liable under
this Agreement for the obligations of any other Participant or for the obligations of NCPA
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
incurred on behalf of other Participants. Each Participant shall be solely responsible and
liable for performance of its obligations under this Agreement, except as otherwise
provided for herein. The obligation of each Participant under this Agreement is, in the
first instance, a several obligation and not a joint obligation with those of the other
Participants.
Notwithstanding the foregoing, the Participants acknowledge that any debts
or obligations incurred by NCPA under this Agreement on behalf of any of them shall be
borne solely by such Participants, and not by non -Participant Members of NCPA,
pursuant to Article IV, Section 3(b) of the Joint Powers Agreement.
10.3 No Consequential Damages. FOR ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES
IS PROVIDED IN THIS AGREEMENT, THE LIABILITY OF THE DEFAULTING PARTY
SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER
DAMAGES OR REMEDIES ARE HEREBY WAIVED. IF NO REMEDY OR MEASURE OF
DAMAGE IS EXPRESSLY PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY
SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES
AND REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL NCPA OR ANY
PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, REPRESENTATIVES,
DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY LOST
PROFITS, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR
14
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF
GOODWILL, LOST REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NCPA AND EACH PARTICIPANT EACH HEREBY WAIVES SUCH CLAIMS AND
RELEASES EACH OTHER AND EACH OF SUCH PERSONS FROM ANY SUCH
LIABILITY.
The Parties acknowledge that California Civil Code section 1542 provides that: "A general
release does not extend to claims which the creditor does not know or suspect to exist in
his or her favor at the time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor." The Parties waive the
provisions of section 1542, or other similar provisions of law, and intend that the waiver
and release provided by this Section of this Agreement shall be fully enforceable despite
its reference to future or unknown claims.
10.4 Waiver. No waiver of the performance by a Party of any obligation under
this Agreement with respect to any default or any other matter arising in connection with
this Agreement shall be effective unless given by the Commission. Any such waiver by
the Commission in any particular instance shall not be deemed a waiver with respect to
any subsequent performance, default or matter.
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
10.5 Amendments. Except where this Agreement specifically provides otherwise,
this Agreement may be amended only by written instrument executed by the Parties with
the same formality as this Agreement.
10.6 Assignment of Agreement.
10.6.1 Binding Upon Successors. This Agreement shall inure to the
benefit of and shall be binding upon the respective successors and assignees of the
Parties to this Agreement.
10.6.2 No Assignment. This Agreement, nor any interest herein, shall be
transferred or assigned by a Party hereto except with the consent in writing of the other
Parties hereto, where such consent shall not be unreasonably withheld.
10.7 Severability. In the event that any of the terms, covenants or conditions of
this Agreement or the application of any such term, covenant or condition, shall be held
invalid as to any person or circumstance by any court having jurisdiction, all other terms,
covenants or conditions of this Agreement and their application shall not be affected
thereby, but shall remain in force and effect unless the court holds that such provisions are
not severable from all other provisions of this Agreement.
10.8 Governing Law. This Agreement shall be interpreted, governed by, and
construed under the laws of the State of California.
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
10.9 Headings. All indices, titles, subject headings, section titles and similar items
are provided for the purpose of convenience and are not intended to be inclusive,
definitive, or affect the meaning of the contents of this Agreement or the scope thereof.
10.10 Notices. Any notice, demand or request required or authorized by this
Agreement to be given to any Party shall be in writing, and shall either be personally
delivered to a Participant's Commissioner or Alternate, and to the General Manager, or
shall be transmitted to the Participant and the General Manager at the addresses shown on
the signature pages hereof. The designation of such addresses may be changed at any
time by written notice given to the General Manager who shall thereupon give written
notice of such change to each Participant. All such notices shall be deemed delivered
when personally delivered, two (2) Business Days after deposit in the United States mail
first class postage prepaid, or on the first Business Day following delivery through
electronic communication.
10.11 Warranty of Authority. Each Party represents and warrants that it has been
duly authorized by all requisite approval and action to execute and deliver this Agreement
and that this Agreement is a binding, legal, and valid agreement enforceable in accordance
with its terms. Upon execution of this Agreement, each Participant shall deliver to NCPA
a resolution of the governing body of such Participant evidencing approval of and
authority to enter into this Agreement.
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect as an
original instrument and as if all the signatories to all of the counterparts had signed the
same instrument. Any signature page of this Agreement may be detached from any
counterpart of this Agreement without impairing the legal effect of any signatures thereon,
and may be attached to another counterpart of this Agreement identical in form hereto but
having attached to it one or more signature pages.
10.13 Venue. In the event that a Party brings any action under this Agreement, the
Parties agree that trial of such action shall be vested exclusively in the state courts of
California in the County of Placer or in the United States District Court for the Eastern
District of California.
10.14 Attorneys' Fees. If a Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provisions of this Agreement, each
Party shall bear its own fees and costs, including attorneys' fees, associated with the
action.
10.15 Counsel Representation. Pursuant to the provisions of California Civil Code
Section 1717 (a), each of the Parties were represented by counsel in the negotiation and
execution of this Agreement and no one Party is the author of this Agreement or any of its
subparts. Those terms of this Agreement which dictate the responsibility for bearing any
attorney's fees incurred in arbitration, litigation or settlement in a manner inconsistent
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
with the provisions of Section 10.1 were intentionally so drafted by the Parties, and any
ambiguities in this Agreement shall not be interpreted for or against a Party by reason of
that Party being the author of the provision.
10.16 No Third Party Beneficiaries. Nothing contained in this Agreement is
intended by the Parties, nor shall any provision of this Agreement be deemed or construed
by the Parties, by any third person or any Third Parties, to be for the benefit of any Third
Party, nor shall any Third Party have any right to enforce any provision of this Agreement
or be entitled to damages for any breach by the Parties of any of the provisions of this
Agreement.
10.17 IN WITNESS WHEREOF, NCPA and each Participant have, by the signature
of its duly authorized representative shown below, executed and delivered a counterpart
of this Agreement.
NORTHERN CALIFORNIA CITY OF LODI
POWER AGENCY 221 W. Pine Street
651 Commerce Drive P.O. Box 3006
Roseville, CA 95678 Lodi, CA 95241-1910
By: Randy S. Howard By: Stephen Schwabauer
Title: General Manager Title: City Manager
Date: Date:
Approved as to form: Approved as to form:
By: By: Janice D. Magdich
Its: General Counsel Its: City Attorney
Date: Date:
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
SAN FRANCISCO BAY AREA RAPID CITY OF BIGGS
TRANSIT DISTRICT 465 "C" Street
300 Lakeside Drive, 16th Floor Biggs, CA 95917
Oakland, CA 94612
By:
By:
Title:
Title:
Date:
Date:
Approved as to form:
Approved as to form:
By: Marco Gomez By: Greg Einhorn
Its: Attorney Its: City Attorney
Date: Date:
CITY OF GRIDLEY
685 Kentucky Street
Gridley, CA 95948
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
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SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
EXHIBIT A
LIST OF PARTICIPANTS
The following is a list of the Participants who are signatory to this Agreement, and their
respective Project Participation Percentage share of the Project:
City of Biggs 0.3 MW or 1.49% Project Participation Percentage
City of Gridley 0.7 MW or 3.48% Project Participation Percentage
City of Lodi 9.2 MW or 45.26% Project Participation Percentage
San Francisco BART 10.1 MW or 49.76% Project Participation Percentage
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY
RESOLUTION NO. 2015-147
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE
CITY MANAGER TO EXECUTE A SECOND PHASE AGREEMENT
FOR RENEWABLE ENERGY POWER PURCHASE AGREEMENT
WITH THE NORTHERN CALIFORNIA POWER AGENCY
WHEREAS, the City of Lodi (Lodi) is a signatory to the Joint Powers Agreement
which created the Northern California Power Agency (NCPA) and therefore is a Member;
and
WHEREAS, Lodi and other Members have executed the Amended and Restated
Facilities Agreement which establishes the framework under which Project Agreements
are created for the development, design, financing, construction, and operation of
specific NCPA Projects; and
WHEREAS, Lodi and other Members desire NCPA to enter into one or more
Renewable Energy Power Purchase Agreements (PPAs) with one or more respondents
to the NCPA 2015 Request for Proposal for Renewable Energy Supply; and
WHEREAS, to enable NCPA to enter into the PPAs on behalf of Lodi and other
Members, a Second Phase Agreement is needed to provide all means necessary for
NCPA to negotiate the PPAs, and to enable and obligate participating Members to pay
NCPA for all costs it incurs for undertaking the foregoing activities; and
WHEREAS, the total not to exceed cost of the Second Phase Agreement is
$35,000 for which Lodi's share will not exceed $17,500; and
WHEREAS, on July 15, 2015, the Risk Oversight Committee received a report on
this agenda item and recommends City Council approval.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby
authorizes the City Manager to execute a Second Phase Agreement for Renewable
Energy Power Purchase Agreement with the Northern California Power Agency.
Dated: August 19, 2015
I hereby certify that Resolution No. 2015-147 was passed and adopted by the
City Council of the City of Lodi in a regular meeting held August 19, 2015, by the
following vote:
AYES: COUNCIL MEMBERS — Chandler, Kuehne, Mounce, Nakanishi,
and Mayor Johnson
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
,�EWFER illy FERRAIOLO
City Clerk
2015-147
EXHIBIT A
LIST OF PARTICIPANTS
The following is a list of the Participants who are signatory to this Agreement, and their
respective Project Participation Percentage share of the Project:
PROJECT PARTICIPATION
PARTICIPANT PERCENTAGE
City of Biggs...................................1.50%
City of Gridley...............................3.50%
City of Lodi ..................................45.00%
San Francisco BART
....................50.00%
SECOND PHASE AGREEMENT FOR RENEWABLE ENERGY