HomeMy WebLinkAboutAgenda Report - May 18, 2016 C-11TM
CITY OF LODI
COUNCIL COMMUNICATION
AGENDA ITEM
AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Advisory Services
Attachment to Single Member Services Agreement with Northern California Power
Agency and Authorizing City Attorney to Execute Conflicts Waiver with Meyers
Nave for Astoria 2 Solar Project
MEETING DATE: May 18, 2016
PREPARED BY: Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Manager to execute an
Advisory Services Attachment to the Single Member Services
Agreement with the Northern California Power Agency (NCPA) and
authorizing the City Attorney to execute a Conflicts Waiver with Meyers Nave for the Astoria 2 Solar
Project.
BACKGROUND INFORMATION: On June 18, 2014, the Lodi City Council approved a Power
Purchase Agreement (PPA) with Recurrent Energy for the Astoria 2
Solar Project (Project). The environmental attributes to be
generated as part of the Project will assist Lodi with meeting its Renewables Portfolio Standard
obligations.
The Project is currently under construction and scheduled for commercial operation by December 2016.
In addition to Lodi, other parties to the PPA include the Southern California Public Power Authority
(SCPPA), Power and Water Resources Pooling Authority (PWRPA) and the cities of Corona, Moreno
Valley, and Rancho Cucamonga. In anticipation of project operation, all parties to the PPA have started
meeting to discuss a project implementation plan to outline details associated with the terms and
conditions of the PPA including, but not limited to, scheduling and operation procedures and project
billing/invoicing.
As a member of NCPA, Lodi currently relies on NCPA to, among many tasks, manage its power portfolio
as it relates to existing generation, execute purchases in both the short- and long-term energy markets
and provide scheduling coordination and risk management services. These activities are all covered
under existing agreements with NCPA. In 2012, Lodi executed a Single Member Services Agreement
(SMSA) with NCPA which allows Lodi to request specialized services from NCPA as its advisor or agent
when such services do not clearly fall within an existing approved NCPA agreement. These requested
services are then identified through an Advisory Services attachment to the SMSA.
Because Lodi does not currently own and/or manage any of its own generation, it does not have staff
with the expertise and knowledge of the intricate nature of the day-to-day activities associated with the
California Independent System Operator (CAISO) markets.
Therefore, Lodi has requested that NCPA provide technical advisory services under the SMSA for the
Project prior to and during commercial operation. This will ensure that Lodi's comprehensive power
portfolio resources, including Astoria 2, are all managed in one location. A description of those advisory
APPROVED:
City Manager
Adopt Resolution Authorizing City Manager to Execute Advisory Services Attachment to Single Member Services Agreement
with Northern California Power Agency and Authorizing City Attorney to Execute Conflicts Waiver with Meyers Nave for Astoria 2
Solar Project
May 18, 2016
Page 2 of 2
services is included as Exhibit A. The cost associated with NCPA's assistance will be billed on a time and
material basis, are anticipated to be minimal in nature, and are included in the current power supply
budget.
In addition, because Meyers Nave represents Lodi in the Project and may continue to offer legal services
in that regard, as well as advise NCPA on the SMSA, Meyers Nave has requested Lodi execute a
Conflicts Waiver, included as Exhibit B.
FISCAL IMPACT: The costs associated with the SMSA Advisory Services will be billed on a
time and material basis.
FUNDING AVAILABLE: Included in the annual power supply budgets — 50060500 and 50862500.
Jordan Ayers
Deputy City Manager/Internal Services Director
f,r / t /t /CIA -kid).
Elizabeth A. Kirkley
Electric Utility Director
PREPARED BY: Melissa Price, Rates & Resources Manager
EAK/MP/Ist
SINGLE MEMBER SERVICES AGREEMENT
by and between the
CITY OF LODI
and the
NORTHERN CALIFORNIA POWER AGENCY
ATTACHMENT A
ADVISORY SERVICES
In accordance with the terms and conditions of the Single Member Services Agreement
for Special Transactions by and between the City of Lodi and the Northern California Power
Agency ("Lodi SMSA") dated July 11, 2012, Northern California Power Agency ("NCPA") may
provide certain Advisory Services to the City of Lodi ("Member"). Advisory Services includes
technical, economic, financial, legal, risk and credit analysis, and other advice of a professional
manner. Member has requested NCPA to provide Advisory Services as described herein, and
NCPA has agreed to provide such Advisory Services in consideration of the costs of such
activities as described herein.
Scope of Advisory Services
Member has entered into a Power Purchase Agreement ("PPA") among RE Astoria 2 LLC,
Southern California Public Power Authority ("SCPPA"), Power and Water Resources Pooling
Authority ("PWRPA"), and the cities of Lodi, Corona, Moreno Valley and Rancho Cucamonga
(collectively referred to as the "Cities"), to take energy and capacity output, including any
associated renewable attributes, from the RE Astoria 2 solar facility ("Project"). Member has
also entered into the Astoria 2 Solar Project Buyers Joint Project Agreement ("Buyers Joint
Project Agreement") among SCPPA, PWRPA and the Cities, under which SCPPA shall act as the
buyers' agent regarding administration of the PPA.
While SCPPA shall act as the buyers' agent for certain activities, pursuant to the Buyers
Joint Project Agreement, Member shall remain responsible for certain roles and responsibilities
as further described in the PPA and Buyers Joint Project Agreement. Member has requested
NCPA to act on behalf of member as Member's Agent regarding management of Member's
obligations as set forth in the PPA and the Buyers Joint Project Agreement.
Pursuant to this Attachment A, NCPA agrees to act on behalf of Member as its agent for
certain duties and responsibilities as specified in the PPA and Buyers Joint Project Agreement
("Advisory Services"). Advisory Services shall include, but are not limited to: (i) contract
management and administration, (ii) monitoring development, implementation and operation
Lodi SMSA — Attachment A Advisory Services
Page 2
of the Project, and (iii) representing Member on the Buyers Joint Project Committee. The
regular duties to be performed by NCPA are expected to include the following:
■ Receive communications from and provide timely response to SCPPA including, but not
limited to, notices, studies, reports, and compliance status regarding Project
development, construction, implementation and operation;
■ Provide a monthly summary of all communications received from SCPPA and/or the
Project developer to Member;
• Consult with and make necessary recommendations to Member on decisions and/or
actions required pursuant to the PPA and Buyers Joint Project Agreement;
■ Process any and all invoices from SCPPA on behalf of Member, to the extent applicable,
in a timely manner;
■ Accept on behalf of and transfer all Renewable Energy Credits (RECs) associated with
the Project to Member in a timely manner; and
• Attend Committee meetings (either in person or remotely) and act as Member's
authorized representative.
Cost of Advisory Services
NCPA shall invoice Member for all costs associated with work performed on behalf of
Member as described herein on a time and material basis through the All Resources Bill, and by
executing this Attachment A Member hereby agrees to compensate NCPA for any and all costs
associated with NCPA's provision of Advisory Services described herein.
Lodi SMSA — Attachment A Advisory Services
Page 3
Pursuant to the terms and conditions of the Lodi SMSA and this Attachment A, the
undersigned hereby approves the scope of Advisory Services described herein. The Parties
have caused this Advisory Services Attachment A to be executed on this day of
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CITY OF LODI NCPA
By: Stephen Schwabauer By: Randy Howard
City Manager Date:
Date:
APPROVED AS TO FORM: APPROVED AS TO FORM
Janice D. Magdich
City Attorney
ATTEST:
Jennifer Ferraiolo
City Clerk
Michael Dean, General Counsel
SINGLE MEMBER SERVICES AGREEMENT
FOR
SPECIAL TRANSACTIONS
BY AND BETWEEN THE
CITY OF LODI
AND THE
NORTHERN CALIFORNIA POWER AGENCY
This Single Member Services Agreement for Special Transactions (the
"Agreement") is entered into as of the ji day of 1A4 2012 ("Effective
Date"), by and between the Northern California Power Agency ("NCPA"), a
California joint powers and public entity having its central office at 651
Commerce Drive, Roseville, California and the City of Lodi ("Member"), a
municipal corporation and member of NCPA, having its central office at 221 W.
Pine Street, Lodi, California. NCPA and the Member are occasionally herein
referred to individually as a "Party" or collectively as the "Parties". This
Agreement is premised on the following.
RECITALS:
WHEREAS, NCPA provides, among other services to its membership:
electric generation facility development and power resource pooling services to
the majority of its member public entities and an associate nonprofit member,
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Single Member Services Agreement
and technical, operational, and maintenance services on behalf of the majority of
member and associate member entities, for the operation and maintenance of
NCPA electric generating projects in which they are invested, as well as dispatch,
scheduling coordination, trading and risk management services, so that the
members of NCPA on the whole, exercising their common powers pursuant to
the Joint Exercise of Powers Act, may supply electrical power and energy for
their residential, commercial, and industrial customers or own use on a reliable,
cost-effective, and environmentally sensitive basis, with the advantages of the
economy of scale, which may, under some circumstances, benefit all of NCPA's
members; and
WHEREAS, the Member, as a member of NCPA, while it looks to NCPA
in part for the services described above, it nevertheless wishes to request that
NCPA provide special services, in the nature of an advisor or agent, by which the
Member may receive an advantage by avoiding the cost of the embedded
expertise that it would have to employ in the absence of NCPA, and the risks
associated therewith, so that the Member may, at its sole risk, and without
hazard to NCPA and its other members, receive benefits, when other NCPA
members may not share interests in this Member's particular effort; and
WHEREAS, this Agreement has been drawn to first protect NCPA and its
members from any exposure to liability of any kind that might result from any
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Single Member Services Agreement
act or omission in the performance of this Agreement, to the fullest extent
permitted by law, due to the fact that NCPA will be acting for the Member and
not for any other member in its performance of this Agreement and due to the
further fact that the benefit of this Agreement to the other members is limited to
the extent to which the challenges of this Agreement develop in NCPA further
skill and expertise, but not to any economic or financial benefit for which those
members should be liable; and
WHEREAS, the Member desires to utilise the benefits of the investment
in, and expertise available through the auspices of NCPA, and NCPA having
weighed the consideration herein, and the protection the Member intends to
provide NCPA and its other members in this Agreement, wishes to assist the
Member;
Now, Therefore, in consideration of the premises and the mutual
covenants and conditions set forth herein, the Parties have entered into this
Agreement.
Article 1— SCOPE OF SERVICES
Upon mutual agreement, and subject to the General Conditions described
below, NCPA will provide to the Member Advisory Services, Agency Services,
Pooled Subscription Services, and Power Procurement Services (Services), for
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Single Member Services Agreement
Power Transactions, Gas Transactions, and Financial Transactions (collectively
Transactions), as defined and described in this Agreement.
1.1 General Conditions. NCPA shall not be obligated under this
Agreement to provide any Services to, or undertake any Transactions for, the
Member, notwithstanding that fact that the Member may have completely and
faithfully complied with each and every term, condition, and covenant of this
Agreement. NCPA may decline to furnish any Service or Transaction requested
by the Member in the sole and absolute discretion of NCPA, acting by and
through its Commission without the vote of the Member, and such discretion of
the Commission shall not be`subject to review or to the dispute resolution
provisions of this Agreement or of other agreements between the Member and
NCPA; provided, however, that, not withstanding the foregoing, should NCPA
have agreed in a written Confirmation, as provided for in Attachment B hereto,
to provide any Service to or undertake any Transaction for the Member;
provided that the Member is then at the time of the Confirmation not in default
of, and has completely and faithfully complied with each and every term,
condition, and covenant of this Agreement, then NCPA shall provide such
Service or undertake such Transaction.
1.2 Power Transactions. Power Transactions mean Transactions for
electrical power, and electrical capacity, energy, exchange, and ancillary services,
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Single Member Services Agreement
or high voltage electric transmission transactions, with parties that are not
members of NCPA for the purpose of serving the Member which would benefit
and affect the Member, not be of interest to other NCPA members or practicably
capable of execution through the NCPA Pooling Agreement or the NCPA
Facilities Agreement, and are not subject to a right of refusal.
1.3 Gas Transactions. Gas Transactions mean natural gas supply,
storage, transportation, and delivery transactions, with parties that are not
members of NCPA, for the purpose of serving the Member which would benefit
and affect the Member, and not be of interest to other NCPA members or
practicably capable of execution through the NCPA Pooling Agreement and the
NCPA Facilities Agreement, or the Third Phase Agreements for other natural
gas -fueled NCPA projects, and are not subject to a right of refusal.
1.4 Financial Transactions. Financial Transactions mean natural gas
and electric power national exchange -based transactions, or such financial
transactions with parties that are not members of NCPA, for the purpose of
hedging or protecting the Member's exposure to the market risks of volatility in
the natural gas and electric power markets which would benefit and affect the
Member, and not be of interest to other NCPA members, or practicably capable
of execution through the NCPA Pooling Agreement or the Third Phase
Agreements for other NCPA projects, and not subject to a right of refusal.
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Single Member Services Agreement
1.5 Advisory Services. Advisory Services mean technical, economic,
financial, legal, risk and credit analysis, and other advice of a professional nature,
related to the potential or ongoing Services that NCPA may provide the Member
under this Agreement, on a flat monthly retainer basis, for the costs directly
associated with this Agreement, shown initially on Attachment A to this
Agreement. Advisory Services also include such services provided by NCPA on
an hourly fee basis for potential and ongoing Transactions and Agency Services,
that will recover for NCPA all of its costs to protect the other NCPA members.
NCPA may adjust the monthly retainer and hourly fees as it determines may be
required, in its sole discretion, during the preparation and adoption of the NCPA
Annual Budget.
1.6 Agency Services. Agency Services mean services that NCPA may
provide in the capacity of the exclusive agent of the Member, as principal, subject
to the General Conditions of this Agreement, to execute and perform
Transactions, on an hourly fee basis, that will recover for NCPA all of its costs to
protect the other NCPA members.
1.7 Pooled Subscription Services. Pooled Subscription Services mean
services that NCPA may provide the Member and other members of NCPA as an
Advisory Service and an Agency Service, where the Member and at least another
member of NCPA (Cooperating Member) has executed a Single Member Services
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Single Member Services Agreement
Agreement for Special Transactions substantially in the form of this Agreement.
Pooled Subscription Services include Power Transactions, Gas Transactions, or
Financial Transactions that would benefit and affect the Member and the
Cooperating Member or Members, and not be of interest to other NCPA
members, or practicably capable of execution through the NCPA Pooling
Agreement or the Third Phase Agreements for other NCPA projects, and that are
not subject to a right of refusal.
1.8 Power Procurement Services. Power Procurement Services mean
execution of Power Transactions by NCPA in its own name on behalf of the
Member where the Member is constrained from the ability to directly contract
with the counter party for such Power Transaction.
Article 2 — REQUEST FOR SERVICES
2.1 Member Request. After the Effective Date, NCPA shall provide
the Member with Advisory Services in consideration of the payment of the
monthly retainer. Upon receipt of a written request for Advisory Services with
respect to potential Transactions and Agency Services, NCPA will respond to the
Member, subject to the General Conditions, with a proposal for fee-based
Advisory Services related to the requested potential Transactions or Agency
Services, including the number and identity of NCPA personnel, by job
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Single Member Services Agreement
classifications, the hourly estimates, all special programs and services, such as
national price reporting services, all materials and equipment, all other pertinent
information, such as required outside support, a schedule and an estimate of
costs, that would be components of the fee for the fee-based Advisory Services.
2.2 NCPA Costs of Response. Before responding, NCPA shall
estimate, and provide to the Member the estimate, NCPA's expected costs for
responding to the Member Request. The Member shall advance such estimated
costs before NCPA provides its response, subject to the General Conditions.
NCPA will not respond if it does not receive the advance within twenty days of
the date of NCPA's estimate. NCPA will not be liable to the Member if NCPA,
after expending all or a part of the advance of estimated costs, declines to
respond to, or suggests alternatives to the Member Request, in NCPA's
discretion, exercised under the General Conditions.
Notwithstanding the foregoing, if services are ultimately not provided by
NCPA, the Member may submit a written request for refund of all unexpended
advanced funding of estimated costs related to a specific Member Request. After
receipt of the written request for unexpended funds, NCPA will refund
unexpended advanced funding to the Member less any outstanding costs,
invoices, and other liabilities for which NCPA may be liable as a result of any
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Single Member Services Agreement
services provided or the cost of providing the estimate, as determined in its sole
discretion.
2.3 Mutual Agreement on Scope of Services. If, after the payment or
tender of payment for all of the actual costs to NCPA of responding to the
Member Request, or after agreement on the allocation of budget costs, the
Member and NCPA agree to the Services that NCPA should provide, NCPA and
the Member shall execute and deliver a Confirmation of the Transactions and
Services, including any Advisory and Agency Services, that NCPA will provide,
if and as requested by the Member.
2.4 Authentication of Delegation. Before responding to any Member
Request, and again prior to confirming any Services or Transactions, NCPA is
entitled to require an authentication of the delegation of any authority of the
governing body of the Member to a manager of the Member, by a formal
resolution and legal opinion, to confirm that the delegation is appropriate in all
respects given the then current documents and the proposed Transactions and
Services to be effected thereon. In addition, NCPA may require, as part of the
General Conditions, that the Member or its authorized manager delegate
authority to NCPA before it undertakes to perform any Services or execute any
Transaction on behalf of the Member, in form and substance acceptable to NCPA,
in its sole discretion, as provided in the General Conditions. Any delegation of
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Single Member Services Agreement
authority to Member's manager shall require a resolution of the governing body
of the Member affirmatively delegating to the manager of the Member the
authority required for Transactions or Services under this Agreement.
2.5 Confirmations. No obligation as might be imposed by law on
NCPA or its other members shall arise unless a written Confirmation accepting
that obligation in respect to a Transaction or Service, described in detail in the
Confirmation, shall have been accepted by the Member without qualification,
and approved by the NCPA Commission. A failure of a Disclosure Statement to
describe a risk or effect of a Transaction or Service shall not excuse the Member
from its liability therefore, given that the Member shall in all situations be wholly
responsible for the Disclosure Statement.
Article 3 — DUE DILIGENCE
3.1 Creditworthiness of Member. At the time of making a request for
a Transaction, the Member shall advance to NCPA, if required by NCPA, the
estimated fee expense for obtaining the unqualified opinion of a nationally
ranked certified public accounting firm stating that the Member will have the
financial capacity to timely pay and retire all of the costs and liabilities that may
be associated with the requested Transaction. Notwithstanding the delivery of
an unqualified opinion, pursuant to the General Conditions NCPA may request
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Single Member Services Agreement
the Member to include in a Confirmation covenants to maintain certain financial
ratios, to maintain special and reserve funds, to provide security to NCPA, and
to raise rates, tariffs, fees or other sources of Revenue.
3.2 Legal Opinion. At the time of making a request for a Transaction,
the Member shall advance to NCPA, if required by NCPA, the estimated fee
expense for obtaining the opinion of a nationally ranked municipal bond law
firm (i) that the legal capacity of the Member to delegate the authority to execute
and deliver the contract for the Service or Transaction from the governing body
to a Member employee or to NCPA, and bind the Member with legal, valid,
binding, and enforceable obligations, is without ambiguity under any applicable
charter, ordinances, state and federal laws, and regulations, and (ii) that the
requested Transaction will not result in any risk of losing the tax exemption for
the interest paid on any of the tax exempt obligations of NCPA.
3.3 Continuing Disclosure. Annually the Member shall present NCPA
with its audited financial statements. NCPA may request the Member to report
contemporaneously in writing on significant events that may materially
adversely affect the Member's financial capability to timely pay and retire all of
the costs and liabilities associated with any outstanding Transaction.
Article 4 - REPRESENTATIONS AND WARRANTIES
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Single Member Services Agreement
4.1 Initial Representations and Warranties. On the Effective Date and
the date of entering into each Transaction, the Member represents and warrants
to NCPA that:
(i) it is duly organized, validly existing and in good standing under
the laws of California and of the United States;
(ii) it has all regulatory authorizations necessary for it to legally
perform its obligations under this Agreement and each Transaction
(including any Confirmation accepted in accordance with this
Agreement);
(iii) the execution, delivery and performance of this Agreement and
each Transaction (including any Confirmation accepted in
accordance with this Agreement) are within its powers, have been
duly authorized by all necessary action and do not violate any of
the terms and conditions in its governing documents, any contracts
to which it is a party or any law, rule, regulation, order or the like
applicable to it;
(iv) this Agreement, each Transaction (including any Confirmation
accepted in accordance with this Agreement), and each other
document executed and delivered in accordance with this
Agreement constitutes its legally valid and binding obligation
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Single Member Services Agreement
enforceable against it in accordance with its terms; subject to any
Equitable Defenses.
(v) it is not Bankrupt and there are no proceedings pending or being
contemplated by it or, to its knowledge, threatened against it which
would result in it being or becoming Bankrupt;
(vi) there is not pending or, to its knowledge, threatened against it or
any legal proceedings or investigations that could materially
adversely affect its ability to perfollit its obligations under this
Agreement and each Transaction (including any Confirmation
accepted in accordance with this Agreement);
(vii) no Event of Default or Potential Event of Default with respect to it
has occurred and is continuing and no such event or circumstance
would occur as a result of its entering into or performing its
obligations under this Agreement and each Transaction (including
any Confirmation accepted in accordance with this Agreement);
(viii) it is acting for its own account, has made its own independent
decision to enter into this Agreement and each Transaction
(including any Confirmation accepted in accordance with this
Agreement) and as to whether this Agreement and each such
Transaction (including any Confirmation accepted in accordance
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Single Member Services Agreement
with this Agreement) is appropriate or proper for it based upon its
own judgment, is not relying upon the advice or recommendations
of NCPA in providing Advisory Services, and the Member is
capable of assessing the merits of and understanding, and
understands and accepts, the terms, conditions and risks of this
Agreement and each Transaction (including any Confirmation
accepted in accordance with this Agreement); and
(ix) it has entered into this Agreement and each Transaction (including
any Confirmation accepted in accordance with this Agreement) in
connection with the conduct of its public service utilityenterprise
and it has the capacity or ability to make or take delivery of all
products referred to in any Transaction to which it is a party.
4.2 Further Representations and Warranties. On the Effective Date
and the date of entering into each Transaction, the Member further represents
and warrants to NCPA that: (i) all acts necessary to the valid execution, delivery
and performance of this Agreement, including without limitation, competitive
bidding, public notice, election, referendum, prior appropriation or other
required procedures has or will be taken and performed as required under the
laws of the State of California and the charter, ordinances, bylaws or other
regulations, (ii) all persons making up the governing body of the Member are the
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Single Member Services Agreement
duly elected or appointed incumbents in their positions and hold such positions
in good standing in accordance with the state and local, and other applicable law,
(iii) entry into and performance of this Agreement and each Transaction by the
Member are for a proper public purpose within the meaning of all relevant
constitutional, organic or other governing documents and applicable law, (iv) the
term of this Agreement does not extend beyond any applicable limitation
imposed by the relevant constitutional, organic or other governing documents
and applicable law, (v) the Member's obligations to make payments hereunder
are unsubordinated obligations and such payments are (a) operating and
maintenance costs (or similar designation) which enjoy first priority of payment
at all times under any and all bond ordinances or indentures or agreements to
which it is a party, and all other relevant constitutional, organic or other
governing documents and applicable law; (b) not subject to any prior claim
under any and all bond ordinances or indentures or agreements to which it is a
party, and all other relevant constitutional, organic or other governing
documents and applicable law and are available without limitation or deduction
to satisfy all of the Member's obligations hereunder and under each Transaction
and (c) are payable from operating funds of the Member, (vi) entry into and
performance of this Agreement and each Transaction by the Member will not
adversely affect the exclusion from gross income for federal income tax purposes
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Single Member Services Agreement
of interest on any obligation of the Member or NCPA otherwise entitled to such
exclusion, and (vii) obligations to make payments hereunder do not constitute
any kind of indebtedness of the Member or create any kind of lien on, or security
interest in, any property or revenues of the Member which, in either case, is
proscribed by any provision of any relevant constitutional, organic or other
governing documents and applicable law, any order or judgment of any court or
other agency of government applicable to it or its assets, or any contractual
restriction binding on or affecting it or any of its assets.
4.3 Primacy of NCPA Projects. Notwithstanding the availability of
NCPA personnel and equipment the Member acknowledges and agrees that the
first priority for NCPA personnel are the other NCPA projects in which more
than one member participates, and that the Services and Transactions that NCPA
provides under this Agreement are subordinate to NCPA's duties to serve the
other members.
Article 5 — APPROVED TRANSACTIONS
5.1 Preparation of Contract Form Risk Disclosure Statements. At
Member's request, NCPA shall prepare a Risk Disclosure Statement to inform the
Member of the risks involved in Contract Forms for which the Member requests
approval.
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Single Member Services Agreement
5.2 Governing Body Approval of Contract Forms. Transactions shall
be executed only on Contract Forms approved by the Member's governing body
by resolution or by Member's manager with written delegated authority, after
presentation of the complete form, and authorized deviations, as well as the Risk
Disclosure Statement.
5.3 Preparation of Counterparty Risk Disclosure Statements. At
Member's request NCPA shall prepare a Counterparty Risk Disclosure Statement
to inform the Member or Member's manager with written delegated authority of
the risks of entering Transactions with the proposed Counterparties.
5.4 Governing Body Approval of Counterparty Lists. Transactions
shall be entered only with Counterparties approved by the Member's governing
body by resolution or by Member's manager with written delegated authority, in
conjunction with any requested Counterparty Risk Disclosure Statement.
5.5 Preparation of Contract Damages Risk Disclosure Statements.
NCPA shall prepare a Contract Damages Risk Disclosure Statement for each
Transaction to inform the Member or Member's manager of the risks of entering
a particular Transaction. Member acknowledges that such Contract Damages
Risk Disclosure Statements, while representing NCPA's understanding of the
risks inherent in a particular Transaction, may not fully encompass all such risks.
NCPA shall not be liable to Member for any failure to fully disclose risks to
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Single Member Services Agreement
Member, and Member acknowledges its responsibility to undertake due
diligence with respect to any proposed Transaction.
5.6 Governing Body Adoption of Contract Damages Risk
Limitations. Transactions shall be entered only after the Member's governing
body has approved by resolution, or after approval by Member's manager with
written delegated authority, the particular Transaction after presentation by
NCPA of the Contract Damages Risk Disclosure Statement and Member's
governing body by resolution or Member's manager with written delegated
authority in writing has adopted the following limits:
5.6.1 Limits on Terms of Contracts. The Member has adopted by
resolution or Member's manager with delegated authority has
adopted the following limits on terms of Contracts that may be
used in Transactions: None.
5.6.2 Limits on Net Present Value at Risk During Terms of Contracts.
The Member has adopted by resolution or Member's manager with
delegated authority has adopted the following limits on the net
present value at risk during the terms of Contracts approved by the
Member for Transactions: None.
Article 6 — OPERATING ACCOUNT AND SECURITY
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Single Member Services Agreement
6.1 Operating Account. The Operating Account is an account
established at NCPA pursuant to this Agreement. The Operating Account is
established to: (i) make timely payments to NCPA under this Agreement and to a
Counterparty pursuant to a Transaction and to protect NCPA from potential
Member default by providing funds and time to cure, (ii) to bridge timing
differences between the receipt of payments from the Member and the date
payments are due a Counterparty, (iii) satisfy any security deposit requirements,
and (iv) provide security against Member default.
6.2 Initial Amount. Before the effective date of a Transaction, the
Member shall deposit in the Operating Account an amount equal to the highest
three (3) months of projected Counterparty invoices for the succeeding twelve
(12) months. NCPA shall maintain a detailed accounting of the Operating
Account. Interest earned on the Operating Account shall be credited to the
Member. Any losses in the Operating Account, due for example to the
compulsory sale of investments to comply with a requirement of the
Counterparty, shall be allocated to the Member. Provided, however, that in the
event that the Counterparty to any Transaction is willing to accept contract terms
such that NCPA is required to pay the Counterparty only as, if, when and to the
extent that NCPA is paid by the Member, then to that extent and with respect to
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Single Member Services Agreement
that Transaction the amount deposited into the Operating Account shall be an
amount equal to the highest one (1) month of projected Counterparty invoices.
6.3 Periodic Reviews. Prior to the effective date of a Transaction and
at least quarterly thereafter, NCPA shall review the balances in the Operating
Account to ensure the amount is equal to the current projection of the highest
three (3) months of the Member's projected Counterparty invoices for the
succeeding twelve (12) months. Any funds in excess of one hundred ten percent
(110%) of this amount shall be credited to the Member. If the funds on deposit in
the Operating Account are less than ninety percent (90%) of this amount, NCPA
shall prepare an invoice to the Member who shall remit such funds within thirty
(30) days of the invoice date.
6.4 Emergency Additions. In the event that the funds in the Operating
Account are insufficient to allow payment of a Counterparty invoice, NCPA shall
notify the Member and then prepare and send a special or emergency assessment
to the Member.
6.5 Return of Funds. On the termination of this Agreement and all
Transactions, the Member may apply to NCPA for the return of its Operating
Account funds ninety (90) days after the effective date of such termination.
NCPA shall, in its sole discretion, as determined by a vote of the Commission,
excluding the vote of the Member, estimate the then outstanding liabilities of the
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Single Member Services Agreement
Member, including any estimated contingent liabilities, such as by way of
example Counterparty invoices subject to dispute or to revision by the
Counterparty or the Federal Energy Regulatory Commission, and retain all such
funds until all such liabilities have been fully paid or otherwise satisfied in full.
NCPA may apply any remaining Operating Account funds to any remaining
obligation of the Member, including but not limited to revised Counterparty
invoices.
6.6 Counterparty Security Deposit. Any security or other deposit
required by a Counterparty for a Transaction shall be provided by the Member
prior to the date NCPA provides any Agency Services and shall be maintained as
may be required thereafter.
6.7 Changes in Security. Any changes in security or other deposits
required by the Counterparty may be released by NCPA from the Operating
Account, and NCPA shall invoice the Member within. ten (10) working days for
the total NCPA released to the Counterparty.
6.8 General Operating Rerserve Election: In connection with fulfilling
the Operating Account requirements of this Agreement, Member may elect to
maintain the funds required under sections 6.1 through 6.7 above through its
individual account in the NCPA General Operating Reserve (G.O.R.). If Member
chooses to satisfy its Operating Account requirements in this manner, it will
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Single Member Services Agreement
provide NCPA with an irrevocable Letter of Direction for NCPA to utilize
Member's G.O.R in this manner, provided however, nothing herein shall prohibit
NCPA and Member from subsequently establishing an escrow account with an
independent financial institution in place of holding the aforementioned deposit
in the NCPA G.O.R.
Article 7 — PAYMENTS AND DEFAULTS
7.1 Billing and Payment. Payments by Member for Services shall be
made in advance. Monthly billing statements prepared by NCPA shall be sent to
the Member showing the Member's unpaid balance for Transactions and Services
and other expenses relating to this Agreement estimated by NCPA for the
succeeding month. This information may be provided on monthly billing
statements prepared by NCPA pursuant to other Project Agreements with
Member. NCPA will provide the monthly billing statements electronically if
requested by the Member; otherwise NCPA shall mail the statements by U.S.
Postal Service, first class postage pre -paid.
7.1.1 Disputed Monthly Billing Statement. In case any portion of any
billing statement received by Member from NCPA shall be in bona
fide dispute, Member shall pay NCPA the full amount of such
billing statement and, upon determination of the correct amount,
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Single Member Services Agreement
the difference between such correct amount and such full amount,
if any, shall be credited to Member by NCPA.
7.2 Application of Operating Account. NCPA may apply the
Member's Operating Account to the payment of any portion of the monthly
billing statement. If Member does not timely pay the billing statement,
Application of such funds shall not relieve the Member from any late payment
charges.
7.3 Late Payments. Amounts shown on each billing statement are due
and payable at the time noted on the invoice, but not later than thirty (30) days
after the date of the invoice, except that any amount due on a Friday, holiday or
weekend may be paid on the following working day. Any amount due and not
paid by the Member shall bear interest at the per annum prime rate (or reference
rate) of the Bank of America NT & SA then in effect, plus two percent per annum
computed on a daily basis until paid.
7.4 Settlement Data. NCPA will make settlement data, including
underlying data received from a Counterparty, available to the Member.
7.5 Audit Rights. The Member shall have the right to audit at its
expense any data created or maintained by NCPA pursuant to this Agreement or
pursuant to a Transaction on thirty (30) days written notice, unless otherwise
agreed by the Member and NCPA.
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7.6 Failure To Pay. If the Member fails to pay any amount due to
NCPA within thirty (30) days of the date of the estimated or final invoice
enumerating such amounts, the Member is in default and material breach under
this Agreement.
7.7 Other Material Breaches. If the Member is in default or in breach
of any of its covenants under any other agreement with NCPA, it shall also be
considered in material default of this Agreement.
7.8 Cure Period. Upon written notice by NCPA, the Member shall
cure any default within five (5) working days.
7.9 Cure of Defaults. A default shall be cured by the payment of any
monies due NCPA, including any late payment charges, and repayment of any
funds drawn from the Operating Account. A default under any other agreement
with NCPA shall be cured by compliance with the covenant.
7.10 Remedies in the Event of a Material Default. NCPA may suspend
the provision of any Agency Service or Advisory Service to the Member with a
default which has not been cured within the Cure Period, including deducting
sums in default from the Operating Account of the defaulting Member,
demanding further assurances, and taking any other legal or equitable action
before or after the Cure Period to compel the correction of the default, as for
example, to mandate the collection of a surcharge to produce Revenues to secure
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Single Member Services Agreement
the cure of the default, (and the selection of one remedy shall not preclude the
use of other remedies), on behalf of NCPA and other Members (in which event
the defaulting Member shall not have the right to vote while such defaulting
Member is in material default as determined by the NCPA Commission).
7.11 Obligations in the Event of Default. In the event that the
Member's share of the Operating Account is insufficient to cover all invoices
related to a Transaction or Service provided to the defaulting Member, (i) the
defaulting Member shall cooperate in good faith with NCPA and shall cure the
default as rapidly as possible, on an emergency basis, taking all such action as is
necessary, including, but not limited to, drawing on its cash -on -hand and lines of
credit, obtaining further assurances by way of credit support and letters of credit,
and taking all such other action as will cure the default quickly; and provided,
however, (ii) that neither NCPA nor any other member shall be liable under this
Agreement for the obligations of the defaulting Member, and the Member shall
be solely responsible and liable for performance of its obligations under this
Agreement and each Transaction.
Article 8 — TERM OF THIS AGREEMENT
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Single Member Services Agreement
8.1 Term of This Agreement. The term of this Agreement will be ten
(10) years from its Effective Date. Six (6) months prior to the fifth -year
anniversary date, the Parties will meet to review the Agreement. During the
review period and following good -faith negotiations to resolve outstanding
issues, either Party may terminate the Agreement. Notwithstanding the
foregoing, either Party may, at any time during the term of the Agreement,
terminate this Agreement on a date at least ninety (90) days after delivery of a
written notice of termination to the other Party, provided that, no termination
shall become effective until the termination of all Transactions.
Article 9 - NO IMMUNITY CLAIM
9.1 No Immunity Claim. The Member warrants and covenants that
with respect to its contractual obligations hereunder and performance thereof, it
will not claim immunity on the grounds of sovereignty or similar grounds with
respect to itself or its revenues or assets from (i) suit, (ii) jurisdiction of a court
(including a court located outside the jurisdiction of its organization), (iii) relief
by way of injunction, order for specific performance or recovery of property, (iv)
attachment of assets, or (v) execution or enforcement of any judgment.
Article 10 - MEMBER COVENANTS
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Single Member Services Agreement
The definitions in this Article 10 apply to the covenants in section 10.3 and
elsewhere in this Agreement.
10.1 Electric System. Electric System means, with respect to the
Member, an properties and assets, real and personal, tangible and intangible, of
the Member 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 equipment thereof; provided, however, that to the
extent the Member 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 purposes, only
the Member's ownership interest in such asset or property or only the part of the
asset or property used for electric purposes shall be considered to be part of its
Electric System.
10.2 Revenues. Revenues means, with respect to the Member, all
income, rents, rates, fees, charges, and other moneys derived by the Member
from the ownership or operation of its Electric System, including, without
limiting the generality of the foregoing, (i) all income, rents, rates, fees, charges or
other moneys derived from the sale, furnishing and supplying of electric capacity
and energy and other services, facilities, and commodities sold, furnished, or
supplied through the facilities of its Electric System, (ii) the earnings on and
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Single Member Services Agreement
income derived from the investment of such income, rents, rates, fees, charges or
other moneys to the extent that the use of such earnings and income is limited by
or pursuant to law to its Electric System, and (iii) the proceeds derived by the
Member directly or indirectly from the sale, lease or other disposition of all or a
part of the Electric System, but the term Revenues shall not include (a)
customers' deposits or any other deposits subject to refund until such deposits
have become the property of the Member or (b) contributions from customers for
the payment of costs of construction of facilities to serve them.
10.3 Member Covenants. The Member covenants and agrees to (i)
establish and collect rates and charges for the services and commodities provided
by its Electric System sufficient to provide Revenues adequate to meet its
obligations under this Agreement and all Transactions combined and to pay all
other amounts payable from, and all lawful charges against or liens upon, the
Revenues; (ii) make payments under this Agreement from the Revenues of, and
as an operating expense of, its Electric System; (iii) make payments under this
Agreement whether or not there is an interruption in, interference with, or
reduction or suspension of services provided under this Agreement and any
transaction (such payments are not subject to any reduction, whether by offset or
otherwise, and regardless of whether any dispute exists); and (iv) operate its
Electric System and the business in connection therewith in an efficient manner
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Single Member Services Agreement
and at reasonable cost and to maintain its Electric System in good repair,
working order, and condition.
Article 11— DELEGATION OF MEMBER AUTHORITY
11.1. Delegation to Member Agent. The Member hereby designates as
its authorized agent, the Member manager, to whom by resolution the Member
has delegated its authority to execute on its behalf forms of contracts pursuant to
this Agreement for use in Transactions subject to the Contract Damages Risk
Limitations adopted by the Member's governing body pursuant to section 5.6.
11.2. Delegation to NCPA. The Member by resolution or Member's
manager with written delegated authority will delegate to NCPA all of the
Member's governing body's authority to enter into a Transaction with the
delegation to NCPA confirming an Agency Service or Power Procurement
Service for such Transaction. Such delegation shall not be revoked by Member
or Member's manager during the term of the Transaction.
Article 12 — TRANSACTION LITIGATION
12.1 Transaction Litigation. In the event of bankruptcy or insolvency of
Member or litigation, dispute resolution, governmental inquiry, including
investigations or legislative inquiries, relating to any matter involving this
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Agreement or any Service or Transaction, NCPA may select Counsel of its choice
to advise and represent NCPA and the Member, and the Member shall pay
NCPA for such expenses, as billed pursuant to this Agreement. Provided,
however, that NCPA will not initiate litigation against third persons related to or
arising out of this Agreement without Member's concurrence.
Article 13 — UNCONTROLLABLE CIRCUMSTANCES & SUSPENSION OF
PERFORMANCE
13.1 Definition. In this Agreement "Uncontrollable Circumstances"
shall mean acts, events or conditions not reasonably foreseeable by a Party which
prevent the affected Party from performing its obligations under this Agreement,
except the obligation for the payment of money, if and only if such acts, events or
conditions and their effects (i) are beyond the reasonable control of such Party (or
any third Party over whom such Party has control), (ii) are not reasonably
avoidable, (iii) cannot be mitigated or eliminated through reasonably available
alternative actions, and (iv) are not a result of the willful or negligent action or
inaction of such Party or of any third Party over whom such Party has control.
Examples of Uncontrollable Circumstances include, but are not
limited to, the following:
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Single Member Services Agreement
13.1.1 An act of God, landslide, lightning, earthquake, fire, explosion,
storm, flood, or weather conditions precluding construction activity
from progressing;
13.1.2 Acts of a public enemy, war, blockade, insurrection, strike, riot or
civil disturbance, sabotage or similar occurrence or a mandate,
directive, order, or restraint of any governmental, regulatory or
judicial body or agency, or the exercise of the power of eminent
domain, police power, inverse condemnation or other taking by or
on behalf of any public, quasi -public or private entity; or
13.1.3 A Change in Law. In this Agreement, a Change in Law shall mean
a material change in the requirements of the Scope of Services or
the operation or maintenance of the Project, made by a
governmental authority, that becomes effective on or after the date
of this Agreement.
13.2 Suspension of Performance. The suspension of performance due
to Uncontrollable Circumstances shall be no longer than reasonably required,
and the Party suffering the Uncontrollable Circumstances shall use its best
reasonable efforts to overcome such circumstances and partially or fully remedy
its inability to perform. The Party suffering the Uncontrollable Circumstance
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Single Member Services Agreement
shall give the other Party notice that is reasonable under such circumstances,
including written notice as soon as practicable.
Article 14 - INDEMNIFICATION, DEFENSE, AND RELEASE
14.1 Indemnity Obligation of Member. The Member hereby assumes
all responsibility and liability for the Transactions and Services provided under
the Agreement as if they were performed by the Member's employees and
accordingly intends to protect NCPA, its member entities, governing officials,
officers, agents, and employees against claims or losses of any kind whatsoever
resulting from Transactions and Services provided pursuant to this Agreement.
The Member is willing to take on such complete responsibility as an inducement
to NCPA to enter into this Agreement. NCPA would not enter into this
Agreement absent such inducement for NCPA's sole source of revenue comes
from its members, which cannot be exposed to the risks of loss or damage due to
Transactions, Services, or this Agreement. Thus, the Member (the "Indemnifying
Party") agrees to indemnify, defend and hold harmless NCPA and its members,
including their respective governing officials, officers, agents, and employees
("Indemnified Party or Parties"), from and against any and all claims,
administrative actions, suits, losses, damages, expenses and liability of any kind
or nature, including, without limitation, reasonable attorneys' fees ("Claim" or
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Single Member Services Agreement
collectively "Claims") including but not limited to those caused by any breach of
contract, negligence, active or passive, gross negligence or willful misconduct of
the Indemnifying Party, its officers, employees, subcontractors or agents, to the
maximum extent permitted by law, but only as to Claims related to this
Agreement.
14.2 Notice and Defense. Promptly after receipt by an Indemnified
Party of any Claim or notice of a Claim or the commencement of any action or
administrative or legal proceeding or investigation as to which the indemnity
provided for in section 14.1 may apply, the Indemnified Party shall notify the
Indemnifying Party of such fact. The Indemnifying Party shall have the right to
assume the defense thereof with counsel designated by the Indemnifying Party
and satisfactory to the Indemnified Party; provided, however, that if the
defendants in any such action include both the Indemnified Party and the
Indemnifying Party, and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it and/or other Indemnified Parties
which are different from or additional to those available to the Indemnifying
Party, the Indemnified Party or Parties shall, at the expense of the Indemnifying
Party, have the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such action on behalf of such
Indemnified Party or Parties.
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Single Member Services Agreement
14.3 Failure to Assume Defense. Should any of the Indemnified Parties
be entitled to indemnification under section 14.1 as a result of a Claim by a third
Party, and should the Indemnifying Party fail to assume the defense of such
Claim after reviewing notification thereof as provided in section 14.2, then such
Indemnified Party may, at the expense of the Indemnifying Party, contest or
settle such Claim. To the extent that any of the Indemnified Parties is required to
initiate and prevails in legal proceedings against the Indemnifying Party to
enforce rights under this Article, the Indemnifying Party shall pay all costs and
attorneys' fees incurred by the Indemnified Party in enforcing its rights. In
addition to the foregoing, a failure to assume defense as provided may be
deemed by NCPA a material breach of this Agreement.
14.4 Release and Covenant Not to Sue. The Member hereby forever
releases and discharges NCPA, its members, governing officials, officers, agents,
employees, and subcontractors (Released Parties) from any and all liabilities,
claims, demands or causes of action that the Member may hereafter have for
injuries, damages, or losses of any kind whatsoever arising out of the
Transactions, Services or this Agreement performed or not performed, or
inadequately performed by NCPA, including, but not limited to, losses caused by
the passive or active negligence of the Released Parties or hidden, latent, or
obvious defects in equipment or materials used.
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Single Member Services Agreement
The Member understands and acknowledges that the Project and the
Services have inherent dangers that no amount of care, caution, instruction or
expertise can eliminate and the Member expressly and voluntarily assumes all
risk of death, personal injury, damages or losses of any kind whatsoever
sustained in connection with the Project and the Services, including the risk of
passive or active negligence of the Released Parties, or hidden, latent, or obvious
defects in the materials used.
The Member hereby forever covenants not to sue the Released Parties for
any injuries, damages, or losses, or liabilities, claims, demands or causes of action
related thereto, to which the foregoing release applies.
Article 15 - GENERAL PROVISIONS
15.1 Independent Contractor. NCPA shall be an independent
contractor with respect to the Services to be performed hereunder. Neither
NCPA nor its subcontractors, nor their agents or employees, shall be deemed to
be the servants, employees, or agents of the Member, notwithstanding Articlel4.
15.2 Occupational Safety and Health Act. The Member shall design,
equip, and maintain and operate in accordance with all applicable rules,
regulations, orders, standards and interpretations promulgated under the
Occupational Safety and Health Act (1970) (OSHA), as amended and in effect as
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Single Member Services Agreement
of the day of execution of this Agreement or such similar act as adopted by the
State of California, if applicable.
15.3 Proprietary Information. To the extent permitted by law, in
particular the California Public Records Act, the Parties shall maintain the
confidentiality of proprietary information.
15.4 Patents. The Member shall defend, indemnify and hold harmless
NCPA from any suit or action brought against NCPA based on a claim that any
item, materials or equipment procured pursuant to this Agreement, or any part
thereof, furnished or specified by NCPA or the Member hereunder or any use
thereof for purposes of this Agreement, constitutes an infringement of any claim
of patent.
15.5 Binding Effect: Successors and Assigns.
15.5.1 This Agreement shall be binding upon and shall inure to the benefit
of the Parties hereto and their respective successors and permitted
assignees.
15.5.2 Neither Party hereto shall assign or convey any of its rights, titles
or interests under this Agreement without the prior written consent
of the other Party hereto.
15.6 Not for Benefit of Third Parties. This Agreement and each and
every provision thereof is for the exclusive benefit of the Parties hereto and not
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Single Member Services Agreement
for the benefit of any other party except that the other member entities are
intended to benefit from the protections provided them in this Agreement in
Article 14.
15.7 Choice of Law. This Agreement is made and is to be performed in
California and any dispute arising therefrom shall be governed and interpreted
in accordance with California laws.
15.8 Article Headings and Subheadings. All article headings and
subheadings are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement.
15.9 No Waiver. No waiver by a Party of any breach or default by the
other Party of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach of default in the performance by such
other Party of the same or any other obligations of such other Party hereunder.
The giving of a waiver by a Party in any one instance shall not limit or waive the
necessity to obtain such Party's waiver in any future instance. No waiver of any
rights under this Agreement shall be binding unless it is in writing signed by the
Party waiving such rights.
15.10 Good Faith and Fair Dealing. The Parties agree to deal fairly and
to act in good faith in the performance or enforcement of this Agreement.
Wherever this Agreement requires a consent or approval of a Party hereto, such
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consent or approval shall not be unreasonably withheld or delayed except as
otherwise specifically provided herein.
15.11 Severability. In the event that any of the provisions of this
Agreement, or portions or applications thereof, are held to be unenforceable or
invalid by any court of competent jurisdiction, the Member and NCPA shall
negotiate an equitable adjustment in the provisions of this Agreement with a
view toward effecting the purposes of this Agreement, and the validity and
enforceability of the remaining provisions, or portions or applications thereof,
shall not be affected thereby.
15.12 Legal Capacity. Each Party represents and warrants that it has the
legal capacity to enter into this Agreement and to perform all obligations
undertaken herein.
15.13 No Counterparts. This Agreement and any amendments will not
be executed in counterparts but in one or more duplicate originals which shall
constitute but one and the same instrument.
15.14 Further Assurances. If either Party reasonably determines that any
further instruments, representation of assurance of payment, or performance, or
any other things are necessary or desirable to carry out the teiu is of this
Agreement, the other Party will execute and deliver all such instruments and
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Single Member Services Agreement
assurances and do all such things as the first Party reasonably deems necessary
or desirable to carry out the terms of this Agreement.
15.15 Hazardous Waste. Although it is not presently contemplated that
any Service or Transaction will involve "Hazardous Waste," if on the contrary
they do, then this section 15.15 shall apply. "Hazardous Waste" means (A) any
product, substance, chemical, element, compound, mixture, solution, material,
pollutant, contaminant or waste whose presence, nature, quantity or intensity of
use, manufacture, processing, treatment, storage, disposal, transportation,
spillage, release, or effect, either by itself or in combination with other materials,
is regulated, monitored, or subject to reporting by any federal, state or local
government entity; (B) those terms that are included within the definitions of
"hazardous substances", "hazardous materials", "hazardous waste", "extremely
hazardous substances", "toxic substances", or "oil and hazardous substances", as
defined in one or more of the following environmental laws: the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et
seq. ("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"); the Emergency Planning and Community
Right -to -Know Act, 42 U.S.C. Sec. 11001 et seq. ("EPCRTKA"); the Resource
Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq. ("RCRA"); the Toxic
Substances Control Act, 15 U.S.C. Sec. 2601 et seq. ("TSCA"); the Federal Water
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Single Member Services Agreement
Pollution Control Act, 33 U.S.C. Sec. 1251 et seq. (the "Clean Water Act"); the
Clean Aix Act, 42 U.S.C. Sec. 7401 et seq. ("CAA"); the Hazardous Materials
Transportation Act, 49 U.S.C. Sec. 5101 et seq. ("HMTA"); the Safe Drinking
Water Act, 42 U.S.C. Sec. 300f et seq. ("SDWA"), or comparable state cleanup
statutes, and in the regulations promulgated pursuant to said laws, all as
amended from time to time; or (C) any material, pollutant, substance or waste
that comprises, in whole or in part, includes, or is a by-product or constituent of
(i) petroleum (including crude oil or any fraction thereof that is not specifically
listed or designated as a hazardous substance, and natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel), (ii) asbestos, (iii)
polychlorinated biphenyls, (iv) flammables or explosives, (v) biochemical agents,
or (vi) radioactive materials.
If, during the course of performing the Services or Transactions,
either Party becomes aware of any Hazardous Waste that exists on or under the
location of the Service or Transaction, whether or not created or brought on the
location by a Party, the Party that so became aware shall report such condition to
the Member in writing immediately and before disturbing (or further disturbing)
the Hazardous Waste. NCPA shall not be liable for any Hazardous Waste on or
under the location notwithstanding the fact that NCPA may have created,
brought on, or released the Hazardous Waste into, over, on, or under the
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Single Member Services Agreement
location. The Member shall be solely liable for arty Hazardous Waste at the
location because of NCPA or any of its employees or subcontractors, and the
Member shall perform all cleanup, removal, remediation and disposition services
with respect thereto. In the event NCPA encounters Hazardous Waste at the
location, NCPA shall take reasonable actions necessary to mitigate costs to the
Member or liability of the Member due to such Hazardous Waste. The cost of
actions taken by NCPA pursuant to this section shall be fully reimbursed by the
Member to NCPA.
15.16 Status of Parties and Regulatory Compliance. The Parties
acknowledge that this Agreement is formed between two public agencies.
Neither Party shall have any claim against the members, governing officials,
officers, employees or agents of either Party.
The Member is subject to the regulatory compliance requirements of
several agencies. The Member shall be solely responsible for, and shall
reimburse NCPA for any costs of compliance with any permits or license
conditions, induding any fines or penalties, to the maximum extent permitted by
law.
15.17 NCPA's Organization. The Member is responsible for assuring for
itself that NCPA's personnel are appropriately trained, educated, and skilled to
competently perform the Services. The Member acknowledges and agrees that
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Single Member Services Agreement
NCPA makes no warranties or representations regarding the qualifications of its
employees, agents, and subcontractors.
15.18 Acknowledgments and Interpretation. The Parties acknowledge
and agree that the terms and conditions of this Agreement have been freely and
fairly negotiated. The Parties acknowledge that in executing this Agreement
they rely solely on their own judgment, belief, and knowledge, and such advice
as they may have received from their own counsel, and they have not been
influenced by any representation or statements made by any other Party or its
counsel. No provision in this Agreement is to be interpreted for or against any
Party because that Party or its counsel drafted such provisions.
15.19 Default Termination. Upon the occurrence of a material default,
the non -breaching Party shall notify in writing the breaching Party of its intent to
terminate this Agreement if the breach is not cured within thirty (30) days. If the
breaching Party does not cure the event of default within such thirty (30) day
period, the non -breaching Party may immediately terminate this Agreement for
Default. Written notice of termination shall be delivered to the breaching Party
at the address shown on page one (1) of this Agreement or as changed. Either
party may provide a new address for such notice at any time by providing
written notice to the other party.
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Single Member Services Agreement
15/0 Default Termination Remedies. In the event of a default
termination for material breach or abandonment by Member, NCPA may by
appropriate court action or actions, either at law or in equity, preserve its
position to recover damages and expenses associated with the breach; and/or
pursue, concurrently or separately, other remedies available in law, in equity or
in bankruptcy in anticipation of pursuing its remedies pursuant to Article 16 of
this Agreement.
15.21 Survival. The terms of this Agreement shall survive any
termination or cancellation hereof to the extent necessary to allow a Party to
enforce any remedy granted hereunder in connection with such termination or
cancellation. The terms of Article 14 of this Agreement, entitled
"Indemnification, Defense, and Release" shall survive any termination or
cancellation, in perpetuity as to the Release, and otherwise for ten (10) years and
one day after the effective date of termination or cancellation.
Article 16 - DISPUTE RESOLUTION
16.1 Negotiations. The Parties will attempt in good faith to resolve
through negotiation any dispute, arising out of or relating to this Agreement.
Either Party may initiate negotiations by providing written notice in letter form
to the other Party, setting forth the subject of the dispute and the relief requested.
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Single Member Services Agreement
The recipient of such notice will respond in writing within five (5) days with a
detailed statement of its position on, and recommended solution to, the dispute.
If the dispute is not resolved by this exchange of correspondence, then
representatives of each Party with full settlement authority will meet at a
mutually agreeable time and place within ten (10) days of the date of the initial
notice in order to exchange relevant information and perspectives, and to
attempt to resolve the dispute. If the Parties are unable to resolve the dispute at
the meeting by negotiations, they shall consider mediation.
During any dispute and negotiation the Member shall continue to timely
pay NCPA for Services rendered and Transactions for which obligations remain
unsatisfied, even though such dispute may concern those Services or
Transactions. NCPA agrees to continue performing the Services, provided that
no payment due from the Member is overdue.
16.2 Mediation. The Parties agree that any and all disputes arising out
of or relating to this Agreement that are not resolved by their mutual agreement
after negotiations pursuant to section 16.1, should be submitted to mediation
before JAMS, or its successor or similar alternative dispute resolution (ADR)
organization of respected, retired judges, or to a private judge, as the Member
may determine, in its reasonable discretion, and with the written consent of
NCPA, provided that the Member will be responsible for all of the expenses of
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Single Member Services Agreement
mediation. Either Party may commence the mediation process called for in this
Agreement by filing a written request for mediation with JAMS, its successor, or
another ADR organization or private judge with a copy to the other Party. The
Parties agree that they will participate in the mediation in good faith when and if
the Member determines to invoke mediation as a dispute resolution remedy, at
its expense.
16.3 Waiver of Certain Judicial Rights. If the Parties fail to either
negotiate or mediate a mutually satisfactory resolution of any dispute, then upon
written notice given twenty (20) days in advance, either Party may terminate this
Agreement, subject to any unpaid or unreimbursed compensation or costs
payable by the Member to NCPA, and without affecting the survival of Article
14, entitled "Indemnification, Defense, and Release" for its full tei.nnt,
notwithstanding any default hereunder by NCPA.
Article 17 — LIMITATION OF LIABILITY
17.1 Limitation of Liability. To the extent the law allows, NCPA, its
members, governing officials, officers, employees, and agents shall have no
liability to the Member under this Agreement with respect to all claims however
caused, arising out of the performance or non-performance of the Services and
obligations under this Agreement, whether based in contract, warranty, tort
45
Single Member Services Agreement
(including negligence), strict liability, or otherwise, including without limitation,
liability for consequential damages pursuant to Article 18. NCPA shall not be
required to carry any insurance, and even if insurance is carried by NCPA, such
insurance shall not be available to the Member for any claim, death, damages,
injuries, losses of any kind whatsoever, unless, and solely to the extent, that the
Member procures such insurance of its own accounts, and pays, and is solely
responsible for any and all premiums and costs related to such coverage. If
notwithstanding the foregoing limitations of this Section 17.1, liability is
imposed, then such total liability shall be limited to the net present value of the
expertise NCPA gained through this Agreement that is of value to its other
members.
Article 18 — CONSEQUENTIAL DAMAGES
18.1 Consequential Damages. NCPA, its members, governing officials,
officers, employees, and agents (excluding counterparties) shall not be liable to
the Member, for incidental, indirect, punitive, exemplary, special or
consequential loss or damage arising out of or relating to this Agreement,
including, but not limited to, loss of use, customer claims and damages, loss of
revenue, loss of power sales, loss of electric system reliability, outages and
cascading disturbances, principal office expenses, delay, loss by reason of plant
46
Single Member Services Agreement
shutdown or inability to operate, increased cost of operating and maintaining the
Project, debt service, rental payments or contractual damages incurred by the
Member or to others. The Member is and will remain through the survival
provisions of Article 15 of this Agreement, solely responsible for such risks,
losses, damages and costs, however described; including consequential damages
that may be suffered by NCPA, its members, governing officials, officers,
employees, and agents (excluding counterparties) arising from this Agreement.
47
Single Member Services Agreement
IN WITNESS WHEREOF, the Parties hereto have entered into this
Agreement on the Effective Date, having acknowledged and accepted the terms,
conditions, promises, and covenants of this Agreement, as evidenced by the
following signatures of the representatives of the Parties, who are represented
and warranted to be fully and lawfully authorized, by all necessary official
action, to execute and deliver this Agreement.
MEMBER:
CITY OF LODI
By:
Name: Konradt Bartlam
Title: City Manager
NCPA:
Northern California Power
Agency
APPROVED AS TO FORM:
D. STEPHEN SCHWABAUER, City Attorney
JANICE D. MAGDICH, Deputy City Attorney
By:
ATTEST
RAND •,City Clerk
By:
Title: General Manager
APPROVED AS TO FORM:
By: /(11661
Michael Dean, General Counsel
48
Single Member Services Agreement
SINGLE MEMBER SERVICES AGREEMENT
by and between the
CITY OF LODI
and the
NORTHERN CALIFORNIA POWER AGENCY
ATTACHMENT A
ADVISORY SERVICES
In accordance with the terms of the Agreement between Northern
California Power Agency ("NCPA") and the City of Lodi ("Member"), NCPA
may provide certain Advisory Services to Member, which includes technical,
economic, financial, legal, risk and credit analysis, and other advice of a
professional manner. Member has requested NCPA to provide the Advisory
Services listed in this Attachment A, and NCPA has agreed to provide such
Advisory Services in consideration of the costs of such activities as described
herein.
Scope of Advisory Services
NCPA shall provide, at its discretion, Advisory Services to Member to
assist Member in developing contract instruments to be utili led to consummate
transactions in its own name for Energy and Renewable Energy Certificate
("REC") products. Such Advisory Services may include development of special
terms and conditions to be used by Member in conjunction with industry
standard contracts and/or development of bilateral contracts. NCPA may assist
Member, through active and passive participation, in negotiation activities
required to develop contract instruments and to consummate transactions.
Notwithstanding the scope of Advisory Services provided herein, all Advisory
Services supplied by NCPA to Member shall be in accordance with the terms and
conditions of the Agreement.
Cost of Advisory Services
Member agrees to pay for any and all costs associate with NCPA's
provision of Advisory Services. In accordance with Article 7 of the Agreement,
all payments due from Member for Advisory Services shall be made in advance.
Therefore, listed below is the estimated cost for the Advisory Services to be
provided to Member. Upon completion of the Advisory Services, NCPA shall
bill or credit Member for the difference between the estimated and actual costs of
Advisory Services. Such invoicing will be conducted in accordance with the
Agreement.
City of Lodi SMSA -- Attachment A
Page 2 of 2
Northern California Power Agency
Single Member Services Agreement - City of Lodi
Estimated Cost of Advisory Services
Scope: Development & Negotiation of Contract Instruments
Rate Total Total
Advisory Services (Estimated Costs) $/Hr Hours Costs
NCPA Staff Hourly Fee Basis $ 160 80 $ 12,800
Legal Counsel Hourly Fee Basis $ 400 44 $ 17,600
$ 30,400
NCPA Legal
Advisory Services (# of Hours Staff/Legal Counsel) Staff Counsel
Contract instrument Terms & Conditions Development 20 28
Development of REC Product Types 16 8
Request for Proposals / Limited Solicitation -- Evaluation 16
Contract Negotiations 8 4
Other Regulatory and Support Activities 8 4
Settlement & Operations 12
80 44
The undersigned hereby approve the scope of Advisory Services and
associated costs estimate described in this Attachment A, in accordance with the
Agreement.
CITY OF LODI
By: Konradt Bartlam
City Manager
Date:
APPROVED AS TO FORM:
D. STEPHEN SCHWABAUER, City Attorney
ANICE D. MAGDICH, Deputy City Attorney
ATT
RAND _e ,City Clerk
Date: 7`(/�/2
APPROVED AS TO FORM:
Michael Dean
General Counsel
ATTACHMENT B
MEMBER REQUEST
ENERGY PURCHASE AUTHORIZIATION & CONFIRMATION
The City of Lodi (Member), hereby confirms its request to purchase from the Northern
California Power Agency (NCPA) each of the energy products described below. Such
purchase shall be made in accordance with the terms of the Single Member Services Agreement
for Special Transactions between Member and NCPA, and this Energy Purchase Authorization
and Confirmation, each as may be amended from time to time. Member acknowledges that
NCPA may acquire each energy and energy-related product described below, for subsequent
resale to Member, pursuant to the terms of each standard -form industry agreement identified
below as directed by Member's Utility Director, or his designee, each of whom by the approval
as to legal form below by Member's attorney is warranted to possess the necessary authority to
enter into such transactions on behalf of Member.
Member requests to purchase all the energy products described below in items (1) through (8)
and those listed in any attachment(s) hereto:
1. Period of Delivery: From _ To - -
2. Schedule (Days and Hours):
3. Delivery Rate:
4. Delivery Point(s):
5. Contract Quantity: Total MWhrs /Mcf
6. Type of Agreement (Check as Applicable)
WSPP
EEI
ISDA
NYMEX
NAESB
OTHER
Additional Contract Terms are attached: yes ; no_
7. Authorized Contract or Strike Price Range:
8. Other:
Authorized Signature for Member Date
Utility Director
Approved as to Legal Form Date
Attorney for Member
Authorized Signature for NCPA Date
RESOLUTION NO. 2012-78
A RESOLUTION OF THE LODI CITY COUNCIL
APPROVING THE SINGLE MEMBER SERVICES
AGREEMENT BY AND BETWEEN THE CITY OF LODI
AND THE NORTHERN CALIFORNIA POWER AGENCY,
AND FURTHER AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT
WHEREAS, on April 12, 2011, the Governor of the State of California signed
California Senate Bill 2 of the First Extraordinary Session, SBX1-2, Chapter 1, Statutes
of 2011, First Extraordinary Session, (SBX1-2), known as the California Renewable
Energy Resources Act, which became effective on December 10, 2011; and
WHEREAS, SBX1-2 requires that the amount of electricity generated from
eligible renewable energy resources be increased to an amount that equals at least 20%
of the total electricity sold to retail customers in California by December 31, 2013, 25%
by December 31, 2016, and 33% by December 31, 2020; and
WHEREAS, while Lodi will need to adopt a Renewable Energy Resources
Procurement Plan (RPS Procurement Plan) to meet the requirements of SBX1-2, the
California State Energy Commission (CEC) still has not published the details of the
requirements for such RPS Procurement Plans, though they were required to do so no
later than December 31, 2011; and
WHEREAS, staff anticipates bringing a RPS Procurement Plan to Council for
approval in the first quarter of fiscal year 2012/13; and
WHEREAS, SB1X-2 requirements will require different amounts of varying types
of renewable resources in various years; these different types are called Portfolio
Content Categories (PCC); and
WHEREAS, in anticipation of the RPS Procurement Plan staff has completed a
preliminary analysis; based on this analysis it is expected that no net purchases will be
required to meet SBX1-2 requirements through calendar year 2013; and
WHEREAS, analysis has also shown that Lodi has a surplus of the more
valuable PCC 1, which includes renewable resource products that are scheduled from
an eligible renewable energy resource directly into a California balancing authority;
Lodi's surplus comes mostly from our entitlements to Northern California Power Agency
(NCPA) geothermal plants; and
WHEREAS, this excess PCC 1 may be sold and replaced with a much less
expensive PCC 3 resource; PCC 3 includes unbundled renewable energy credits that do
not qualify under the criteria for other Content Categories; and this exchange of PCC
types may result in savings to Lodi of as much as $2 million this fiscal year; and
WHEREAS, NCPA is currently working to modify the Market Power Purchase
Agreement (MPP) to enable NCPA to make these types of transactions for the MPP
Participants, which includesthe transactions that needlt is unlikely that he MP to be completed this yearpandan be
modified in time to make
WHEREAS, Lodi itself has neither the time nor experience to complete these
transactions on our own in the available time frame; and
WHEREAS, NCPA has developed the Single Member Services Agreement
(SMSA) and scope of work (Advisory Services) to facilitate such independent
transactions, by assisting its members in carrying out economic and timely transactions;
and
WHEREAS, the SMSA will allow additional scopes of work to be attached to it in
the future, as needed from time to time; any additional scopes of work will require
potential
process approvals y both beNCPA p aapprd oved in ; accordance transactions
with Lodi sat come out of this
existing approval
process will still need pp
process.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
approve the Single Member Services Agreement by and between the City of Lodi and
the Northern California Power Agency and authorizing the City Manager to execute said
agreement with administration by the Electric Utility Director.
Dated: June 6, 2012
I hereby certify that Resolution No. 2012-78 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held June 6, 2012, by the following vote:
AYES: COUNCIL MEMBERS — Hansen,
d Johnson, Katzakian, Nakanishi,
Mayor
NOES: COUNCIL MEMBERS -- None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
2012-78
NDI JOHL
City Clerk
555 Capitol Mall, Suite 1200
Sacramento, California 95814
tel (916) 556-1531
fax (916) 556-1516
www.meyersnave.com
meyers
nave
April 6, 2016
Janice Magdich,
City Attorney
City of Lodi
P.O. Box 3006
Lodi, CA 95241
Michael F. Dean
Attorney at Law
Direct Dial: (916) 556-1531
mdean@meyersnave.com
APR 1 1 2016
CITY ATTORNEY'S OFFICE
Re: Request for Conflicts Waiver Regarding the Lodi SMSA Advisory Services
Schedule
Dear Ms. Magdich:
As you are aware, Meyers Nave acts as the General Counsel to the Northern California
Power Agency ("NCPA"). In that capacity we have been asked by NCPA to advise
regarding a proposed Lodi - NCPA Single Member Services Agreement ("SMSA") Advisory
Services Schedule. NCPA is a joint powers agency composed of a number of cities and
other local government agencies that have municipal electric utilities. The City of Lodi
("Lodi") is a member of NCPA.
The subject of the proposed SMSA Services Schedule would be the provision of certain
services by NCPA to Lodi relating to a non-NCPA project, the RE Astoria II solar project,
in which Lodi is a participant. Meyers Nave has represented Lodi in the negotiation of
the Joint Buyers Agreement and the Power Purchase Agreement ("PPA") for the RE Astoria
II project, but these RE Astoria II project agreements did not involve NCPA in any way.
On occasion, Lodi still consults with Meyers Nave regarding the RE Astoria II project
agreements. If the SMSA Advisory Services Schedule is approved, NCPA would provide
various services to Lodi during the operation of the RE Astoria II project, including billing,
acting as Lodi's agent under the Joint Buyers Agreement, and attending certain buyers'
committee meetings on Lodi's behalf.
In addition to the above, we also currently represent Lodi in connection with other
unrelated land use matters.
As attorneys, we are governed by the California Rules of Professional Conduct. As stated in
Rule 3-310(C) below, Meyers Nave must obtain the informed written consent of both
clients prior to representing one client against another. The purpose of this letter is to
inform both clients of the potential conflict and obtain your written consent. Pertinent
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO
Janice Magdich
Re: Request of Conflicts Waiver
April 6, 2016
Page 2
sections of Rule 3-310(C) of the California Rules of Professional Conduct provide as
follows:
Rule 3-310(C): A member shall not, without the informed written consent of
each client:
(1) Accept representation of more than one client in a matter in which the
interests of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in
which the interests of the clients actually conflict;
While we would simultaneously represent both Lodi and NCPA in matters relating to the
RE Astoria II project (NCPA with respect to the approval of the NCPA-Lodi SMSA
Advisory Services Schedule, and Lodi with respect to the Joint Buyers Agreement and the
PPA) we have no reason to believe that any dispute exists between Lodi and NCPA that
creates an actual conflict of interest. However, should any party in the future assert a
position inconsistent with the other's interests, we would be unable to represent either party.
We believe that the potential for actual conflict is minimal, however, as both parties share
the same interest in agreeing to the terms of the SMSA Advisory Services Schedule and the
business terms of the NCPA-Lodi relationship are contained in the SMSA itself, which is
already in place. The Advisory Services Schedule would merely list the additional services to
be provided under the terms of the existing SMSA.
By this letter we are requesting that Lodi provide written consent to allow Meyers Nave to
represent NCPA related to the SMSA Advisory Schedule matter. This NCPA representation
was contemplated at the time of the retainer of Meyers Nave by Lodi for the RE Astoria II
project. By signing this letter and returning it to us, however, you formally acknowledge
that we have disclosed this matter and confirm that Lodi does not object to our
representation of NCPA in the SMSA Advisory Schedule matter, adverse to Lodi. You
further agree that you will not assert any conflict of interest concerning such representation
or attempt to disqualify Meyers Nave from representing NCPA notwithstanding such
adversity.
If, after review and consideration of the foregoing, Lodi consents to our representation of
NCPA in the matter described above, please sign the enclosed copy of this letter. We have
asked for a similar consent from NCPA.
Very truly yours,
Michael F. Dean
Attorney at Law
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO
Janice Magdich
Re: Request of Conflicts Waiver
April 6, 2016
Page 3
cc: Conflicts Dept.
City of Lodi consents to the representation described above.
Dated:
By: Janice Magdich
Its: City Attorney
2630249.1
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO
RESOLUTION NO. 2016-80
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE
CITY MANAGER TO EXECUTE AN ADVISORY SERVICES
ATTACHMENT TO THE SINGLE MEMBER SERVICES AGREEMENT
WITH THE NORTHERN CALIFORNIA POWER AGENCY AND FURTHER
AUTHORIZING THE CITY ATTORNEY TO EXECUTE A CONFLICTS
WAIVER WITH MEYERS NAVE FOR THE ASTORIA 2 SOLAR PROJECT
WHEREAS, on June 18, 2014, the Lodi City Council approved a Power Purchase
Agreement with Recurrent Energy for the Astoria 2 Solar Project (Project); and
WHEREAS, the Project is currently under construction and scheduled for commercial
operation by December 2016; and
WHEREAS, in 2012, Lodi executed a Single Member Services Agreement (SMSA) with
Northern California Power Agency (NCPA) which allows Lodi to request specialized services
from NCPA as its advisor or agent when such services do not clearly fall within an existing
approved NCPA agreement; and
WHEREAS, Lodi has requested that NCPA provide technical advisory services under
the SMSA for the Project prior to and during commercial operation; and
WHEREAS, the cost associated with NCPA's assistance will be billed on a
time -and -material basis, is anticipated to be minimal in nature, and is included in the current
power supply budget; and
WHEREAS, because Meyers Nave represents Lodi in the Project and may continue to
offer legal services in that regard, as well as advise NCPA on the SMSA, Meyers Nave has
requested Lodi execute a Conflicts Waiver.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby authorizes the
City Manager to execute an Advisory Services Attachment to the Single Member Services
Agreement with NCPA for the Astoria 2 Solar Project; and
BE IT FURTHER RESOLVED that the Lodi City Council hereby authorizes the
City Attorney to execute a Conflicts Waiver with Meyers Nave for the Astoria 2 Solar Project.
Dated: May 18, 2016
I hereby certify that Resolution No. 2016-80 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held May 18, 2016, by the following vote:
AYES: COUNCIL MEMBERS — Johnson, Mounce, Nakanishi, and
Mayor Chandler
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Kuehne
ABSTAIN: COUNCIL MEMBERS — None
6NNIFER4M. FERRAIOLO
City Clerk
2016-80