HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2011-07-06f
NCPA
RENEWABLE ENERGY CERTIFICATES TRANSFER AGREEMENT
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND CITY OF UKIAH
This RENEWABLE ENERGY CERTIFICATES TRANSFER AGREEMENT ("Agreement") is made
by and between the NORTHERN CALIFORNIA POWER AGENCY ("NCPA"), a joint public powers
agency with offices located at 651 Commerce Drive, Roseville, California and City of Ukiah, with
offices located at 300 Seminary Avenue, Ukiah, California ("Contracting Member") (together
sometimes referred to herein individually as "Party" and collectively as "Parties") as of
-3 l- 2011 (the "Effective Date") in Roseville, California.
Section 1. RECITALS
This Agreement is entered into based on the following facts, among others:
1.1 NCPA is a public agency created by a joint powers agreement established under
California law for the purpose of assisting its members in the efficient use of their common powers.
1.2 Contracting Member is engaged in, among other things, transmitting and distributing
electric power in its corporate limits. Contracting Member is also a member of NCPA or a Project
Participant. Contracting Member desires that NCPA provide Contracting Member with the Services
described in this Agreement.
1.3 Article III, section 3 of the "Amended and Restated Northern California Power
Agency Joint Powers Agreement" (as amended and effective January 1, 2008) (hereinafter "JPA")
entitled "Powers and Functions" provides that none of the debts, liabilities or obligations of NCPA
shall be the debts, liabilities or obligations of any of the members of NCPA unless assumed in a
particular case by resolution of the governing body of the member to be charged." Notwithstanding
the foregoing, Article V, section 1 of the JPA entitled "General Provisions" provides that "[t]he
governing Commission of NCPA is authorized to procure public liability and other insurance as it
deems advisable to protect NCPA and each of the parties hereto, charging the cost thereof to the
operating costs of NCPA."
1.4 Contracting Member desires to secure NCPA's Services under this Agreement in a
manner that balances its interests and the interests of other NCPA members with the ongoing
financial viability and professional responsibilities of NCPA. Accordingly, Contracting Member
desires to secure NCPA's Services under this Agreement by accepting a limited insurance based
recourse against NCPA, with the option of procuring additional insurance at Contracting Member's
sole expense, thereby ensuring that NCPA will substantially limit its risk for the provision of such
Services which, in turn, allocates risks back to the Contracting Member in the event NCPA is not
adequately insured.
1.5 Contracting Member and NCPA agree that the terms and conditions of this
Agreement are made solely for the purpose of transferring Renewable Energy Certificates
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("RECs") from NCPA to Contracting Member. The terms and conditions of this Agreement are
specific to this Agreement and have no precedential value as to any NCPA Project Agreement.
1.6 Contracting Member has a Project Entitlement Percentage of the Capacity and
Energy from a NCPA Project ("Project") as specified in the respective NCPA Project Agreement.
Project Capacity and Energy includes, but is not limited to, all renewable and environmental
attributes associated with the production of electricity from a renewable energy resource, including
RECs. All NCPA Projects that are Registered Generating Units, and for which NCPA is issued and
receives RECs are listed in Exhibit B of this Agreement. Contracting Member's allocated share of
RECs attributable to Project generation is calculated pursuant to Section 4.2.
1.7 Contracting Member may be eligible to receive CVP RECs made available to a
customer of the Western Area Power Administration's Sierra Nevada Region ("Western"). If
NCPA, on behalf of Contracting Member, receives a transfer of CVP RECs from Western,
Contracting Member may request its allocated share of CVP RECs be transferred in accordance
with this Agreement, and Contracting Member agrees to be solely responsible for compliance with
all applicable rules and obligations associated with CVP RECs as may be established by Western
(e.g. CVP RECs may be nontransferable and may not be available for resale by Contracting
Member). Contracting Member's allocated share of CVP RECs is calculated pursuant to Section
4.3.
1.8 NCPA has entered into an Account Holder Registration Agreement ("Terms of
Use") with WREGIS and Services provided under this Agreement shall be performed in a manner
that does not violate any of the rules or obligations contained in the Terms of Use.
NOW THEREFORE, in consideration of the mutual covenants and promises set forth, NCPA
and Contracting Member agree as follows:
Section 2. DEFINITIONS
Whenever used in this Agreement with initial capitalization, these terms shall have the
following meanings as applicable, whether in the singular or plural:
2.1 "All Resources Bill" shall mean the single, combined monthly bill from NCPA to a
NCPA Member or Project Participant, with respect to all NCPA programs and projects.
2.2 "Annual Budget" shall mean the budget for the ensuing Fiscal Year adopted by the
Commission, as may be amended from time to time.
2.3 "Base Resource" shall mean Base Resource as that term is defined in Contract 04-
SNR-00782 made between NCPA and Western.
2.4 "Capacity" shall mean the maximum load carrying ability of an electric generating
unit or combination of units in kilowatts.
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2.5 "Central Valley Project" shall mean the multipurpose Federal water and Power
project extending from the Cascade Range in northern California to the plains along the Kern
River, south of the City of Bakersfield, California.
2.6 "Commission" shall mean the NCPA Commission.
2.7 "CPUC" shall mean the California Public Utility Commission.
2.8 "CVP REC" shall mean RECs that may be associated with the megawatt-hours from
Central Valley Project hydropower generation.
2.9 "Energy" shall mean the electrical energy produced, flowing or supplied by
generation, transmission or distribution facilities, being the integral with respect to time of the
instantaneous power, measured in units of watt-hours or standard multiples thereof, e.g., 1,000
Wh=1 kWh, 1,000 kWh=1 MWh, etc.
2.10 "Fiscal Year" shall mean the NCPA fiscal year; currently the twelve month period
beginning July 1 and ending on the next following June 30.
2.11 "Good Utility Practice" shall mean any of the practices, methods and acts engaged
in or approved by a significant portion of the electric utility industry during the relevant time period,
or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of
the facts known at the time the decision was made, could have been expected to accomplish the
desired result of the lowest reasonable cost consistent with good business practices, reliability,
safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice,
method or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts
generally accepted in the region and consistently adhered to by the electric utility industry.
2.12 "NCPA Members" shall mean the signatories to the JPA or those agencies which
have executed an Associate Member Agreement with NCPA.
2.13 "NCPA Project" or "Project" shall mean generating resources and/or contractual
rights to electric energy designated by the NCPA Commission as an NCPA Project.
2.14 "Project Agreement" shall mean any second phase, third phase or operating
agreement relating to a specific NCPA Project.
2.15 "Project Participant" shall mean a NCPA Member or third party which enters into an
agreement with NCPA relating to the second phase, third phase or operation of a NCPA Project.
2.16 "Project Participation Percentage" shall mean the percentage of participation of
Contracting Member in an NCPA Project as specifically set forth in a Project Agreement.
2.17 "QRE" shall mean Qualified Reporting Entity as that term is defined by WREGIS.
2.18 "Registered Generating Unit" shall mean a generating unit that has registered its
facility with the WREGIS Director.
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2.19 "Renewable Energy Certificate" or "REC" shall mean WREGIS Certificate as that
term is defined by WREGIS.
2.20 "Stranded Costs" shall mean all costs incurred by NCPA in providing Services to
Contracting Member under this Agreement that could not reasonably be avoided by NCPA from the
date it receives a written Notice of Termination. Such costs may include, but not be limited to,
salary and employment costs, rent, utilities, or contracts incurred to provide Services under this
Agreement.
2.21 "Uncontrollable Force" shall mean any act of God, labor disturbance, act of the
public enemy, war, insurrection, riot, fire, storm, flood, earthquake, explosion, any curtailment,
order, regulation or restriction imposed by governmental, military or lawfully established civilian
authorities or any other cause beyond the reasonable control of the Party claiming Uncontrollable
Force which could not be avoided through the exercise of Good Utility Practice.
2.22 "Unit Energy Allocation Process" or "UEA" shall mean the process used by NCPA to
allocate NCPA Project metered generation to Project Participants approved by the NCPA
Commission, as modified from time to time.
2.23 "WREGIS" shall mean the Western Renewable Energy Generation Information
System.
Section 3. SERVICES TO BE PROVIDED; AUTHORIZED REPRESENTATIVES; STANDARD
OFPERFORMANCE
3.1 This Agreement is entered into by the Parties in order for NCPA to transfer RECs to
Contracting Member as described in Exhibit A hereto ("Services").
3.2 NCPA agrees that Contracting Member has full and unfettered rights and title to its
Project Entitlement Percentage share of Project Capacity and Energy and its allocated share of
any RECs corresponding to NCPA Project generation as determined by WREGIS, and such right
and title are transferable and available for resale by Contracting Member according to the terms
and conditions of WREGIS. NCPA further agrees that, unless agreed to by Contracting Member in
a separate contract, NCPA will not sell to third parties RECs arising from Contracting Member's
share of Project Capacity and Energy.
3.3 Contracting Member agrees not to transfer, assign, sell or exchange any Project
RECs, directly or indirectly, in any manner, and shall not take or permit to be taken any other action
or actions, which would result in any of the bonds supporting NCPA Projects in being treated as an
obligation not described in Section 103(a) of the Internal Revenue Code of 1954, as amended, by
reason of classification of such bond as an "industrial development bond" within the meaning of
Section 103(b) of said Code. Should Contracting Member seek to transfer, assign, sell or
exchange any Project RECs for a term greater than three (3) years, then Contracting Member will
provide NCPA with sufficient notice of such intent to allow NCPA to secure an opinion of its bond
counsel regarding potential tax effects of such a transfer, and the costs incurred by NCPA to
secure bond counsel's opinion shall be charged to and paid by Contracting Member.
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3.4 NCPA makes no representations as to whether any Project RECs and CVP RECs
transferred to Contracting Member under this Agreement are marketable or qualify for or meet any
renewable portfolio standards, renewable energy standards, or any other renewable type standard.
NCPA is making the Project RECs and CVP RECs available to Contracting Member AS IS. It is
the Contracting Member's responsibility to verify whether the Project RECs and CVP RECs
transferred by NCPA will qualify for California, Federal, or other renewable requirements.
3.5 If any REC transferred by NCPA to Contracting Member is later determined by
WREGIS, CPUC, or any other regulatory or enforcement agency having jurisdiction to be invalid or
inaccurate for any reason, including, but not limited to, revised meter data, QRE errors or WREGIS
errors, Contracting Member agrees to remedy the problem at Contracting Member's expense. If
the same issue also involves other Contracting Members the affected Contracting Members shall
be jointly responsible for remedying the problem at their expense.
If the invalidity or inaccuracy was created by an error by NCPA, then NCPA agrees to remedy
the problem; provided that Contracting Member nonetheless agrees to pay all costs and losses
caused by any error committed by NCPA unless the problem also involves other Contracting
Members, in which case, all costs and losses will be allocated pro rata to all impacted Contracting
Members based on the RECs in question.
3.6 The following are the Authorized Representatives of the parties for contract
administration purposes under this Agreement:
David Dockham
Assistant General Manager, Power Management
651 Commerce Drive
Roseville, CA 95678
Phone: 916-781-4256
Fax: 916-781-4252
Dave.Dockham@ncpa.com
Jane A. Chambers
City Manager
300 Seminary Avenue
Ukiah, CA 95482
(707) 463-6213
(707) 463-6204
jhambers@cityofukiah.com
No Authorized Representative is authorized to amend any provision of this Agreement except in
accordance with Section 13.16.
3.7 Standard of Performance. NCPA will perform and or oversee, as applicable, the
Services using that level of skill and attention reasonably required to complete the Services in a
competent and timely manner.
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3.8 Assignment of Personnel. NCPA shall assign only competent personnel to perform
Services pursuant to this Agreement.
3.9 Time. NCPA shall devote such time to the performance of Services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance provided in
Section 3.7, above and to satisfy NCPA's obligations hereunder.
Section 4. ALLOCATION OF RENEWABLE ENERGY CERTIFICATES
4.1 Establishing a WREGIS Account. Prior to submitting a request for NCPA to transfer
RECs from NCPA's WREGIS account to Contracting Member, Contracting Member shall establish
its own account with WREGIS and provide NCPA with documentation of its WREGIS account.
4.2 Allocation of NCPA Project RECs. RECs attributable to NCPA Project generation
shall be allocated to Contracting Member in proportion to its allocated share of metered generation
from a NCPA Project. Contracting Member's allocated share of metered generation from a NCPA
Project is calculated in accordance with the UEA process. Contracting Member's allocated share
of RECs attributable to a NCPA Project for which the metered generation from said Project cannot
be allocated in accordance with the UEA process, will be equal to Contracting Member's Project
Participation Percentage share of all RECs issued for the NCPA Project (e.g. NCPA hydro solar
project).
4.3 Allocation of CVP RECs. Contracting Member's allocated share of CVP RECs held
in NCPA's WREGIS account, if any, is equal to the total quantity of CVP RECs transferred to
NCPA from Western on behalf of Contracting Member, whose share of total CVP RECs attributable
to Central Valley Project hydroelectric generation is allocated by Western to Contracting Member
based on its Base Resource percentage.
4.4 Partial REC Accounting. WREGIS will produce and issue RECs based on
generation output. Pursuant to the Terms of Use one (1) REC will be created for each whole
megawatt-hour of renewable energy that is produced. If the total amount of metered generation
output from a NCPA Project is less than one (1) megawatt-hour for a specific vintage period a REC
will not be created and issued by WREGIS until the total accumulation of metered generation
output from a NCPA Project is equal to or greater than one (1) megawatt-hour.
4.4.1 If the total metered generation output from a NCPA Project is less than one (1)
megawatt-hour for a specific vintage period, NCPA will track the total metered generation output
from a NCPA Project in NCPA's WREGIS account until the total accumulation of metered
generation output from a NCPA Project is equal to or greater than one (1) megawatt-hour. Once
the total accumulation of metered generation output from a NCPA Project is equal to or greater
than one (1) megawatt-hour, WREGIS will produce and issue a REC, and such REC will be
allocated to Contracting Member in accordance with Section 4.2.
4.4.2 In accordance with the Terms of Use, NCPA may only transfer a whole number, or
positive integer, of RECs from NCPA's WREGIS account to Contracting Member's WREGIS
account. If resulting from the allocation of NCPA Project RECs as specified in Section 4.2, or the
allocation of CVP RECs as specified in Section 4.3, Contracting Member is allocated a quantity of
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Project RECs and/or CVP RECs for a specific vintage period, and from a specific source, that
includes a fractional quantity of RECs (e.g. 1.5 RECs), the fractional quantity of RECs allocated to
Contracting Member will be held in NCPA's WREGIS account on behalf of Contracting Member
until Contracting Member is allocated additional fractional quantities of RECs provided from the
same source so that the summation of such fractional quantities is equal to a whole number of
RECs. Once a whole number of Contracting Member's RECs has accumulated in NCPA's
WREGIS account, such quantity of RECs will be made available for transfer from NCPA to
Contracting Member.
Section 5. TERM AND TERMINATION
5.1 Authorization to Perform Services. NCPA is not authorized to perform any Services
or incur any costs whatsoever under the terms of this Agreement until its receipt of a written
resolution and/or other appropriate/applicable authorization from Contracting Member's governing
body confirming Contracting Member's authority to enter into this Agreement and confirming that
the Contracting Member has allocated funds for and approved contract payments to NCPA under
this Agreement.
5.2 Term. The term of this Agreement shall begin on the Effective Date and shall end
when terminated by either Party upon two (2) years written notice or upon such date prior to two (2)
years as mutually agreed upon by all Parties ("Notice of Termination"). Contracting Member shall
pay NCPA for all fees and costs required under this Agreement through the effective date of its
Notice of Termination plus all Stranded Costs. Upon payment of the above amounts, neither Party
shall have any further obligations under this Agreement except as otherwise set forth in Section 6.7
regarding the survival of defense and indemnity obligations.
Section 6. INDEMNITY AND INSURANCE
6.1 Limitation of NCPA's Liabi
6.1.1 Except as provided in this section 6.1, NCPA shall not at any time be liable for any
injury or damage occurring to Contracting Member or any other person or property from any cause
whatsoever arising out of this Agreement.
6.1.2 The provisions of section 6.1.1 shall not apply where the injury or damage
occurring to Contracting Member is caused by the negligence or willful misconduct of NCPA or of
any employee, agent or contractor of NCPA, and provided that any liability under this subsection is
limited to the extent of the actual coverage and coverage limits of the insurance policies described
in this Section 6.
6.1.3 Contractinq Member Liable for NCPA's Deductibles and or Self-Insured
Retentions. Notwithstanding Section 6.1.2 above, the Contracting Member agrees to reimburse
NCPA, in a timely manner, for all deductibles and/or self-insured retentions payable for any claim,
liability or damage arising out of this Agreement.
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6.2 Indemnification of NCPA. Except as specified in Section 6.1.2 above, Contracting
Member shall, at its sole cost and expense, indemnify and hold harmless NCPA and all associated,
affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter created, and
their respective officers, boards, commissions, employees, agents, attorneys, and contractors
(hereinafter referred to as "Indemnitees"), from and against any and all liability, obligation,
damages, penalties, claims, liens, costs, charges, losses and expenses (including, without
limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which
may be imposed upon, incurred by or be asserted against the Indemnitees arising out of this
Agreement.
63 Defense of Indemnitees. In the event any action or proceeding shall be brought
against the Indemnitees by reason of any matter for which the Indemnitees are indemnified
hereunder, Contracting Member shall, upon reasonable prior written notice from any of the
Indemnitees, at Contracting Member's sole cost and expense, resist and defend the same with
legal counsel mutually selected by Indemnitee and the Contracting Member, unless mutual
selection of counsel is expressly prohibited by an applicable insurance policy; provided however,
that neither Indemnitee nor Contracting Member shall admit liability in any such matter or on behalf
of the other without express written consent, which consent shall not be unreasonably withheld or
delayed, nor enter into any compromise or settlement of any claim for which Indemnitees are
indemnified hereunder without prior express written consent. The Contracting Member's duty to
defend shall begin upon receipt of a written notice identifying with specificity the allegations that
give rise to this duty to defend.
6.4 Notice. The Parties shall give each other prompt notice of the making of any claim
or the commencement of any action, suit or other proceeding covered by the provisions of this
Section 6.
6.5 Insurance. During the term of the Agreement and prior to beginning any work under
this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and at its
sole cost and expense, the types and limits of liability insurance as are annually approved by the
Commission. The types and limits of liability insurance that are applicable to this Agreement are
evidenced in policy summaries, which are attached hereto as Exhibit D. NCPA warrants and
represents that the types of liability insurance and coverage limits shown in Exhibit D are in full
force and effect and shall remain so during the term of this Agreement unless NCPA gives prior
written notification (of not less than 30 days) of modification, cancellation or rescission of such
coverage.
6.6 Contracting Member's Acknowledgment of Option to Secure Additional Insurance.
The Contracting Member acknowledges that there are limitations on NCPA's liability to the
Contracting Member under this Section 6 and that the Contracting Member may need to purchase
additional insurance of its own to cover the additional risks and the potential additional liabilities it is
assuming under this Agreement. Contracting Member agrees that it will cause, with respect to any
additional insurance it obtains or which is otherwise available to Contracting Member, its insurers
to issue an endorsement providing a waiver of subrogation rights as to Indemnitees.
6.7 Survival of Obligations. The defense and indemnity obligations of Section 6 shall
survive the termination of this Agreement.
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Section 7. COMPENSATION, CHARGES & REIMBURSEMENTS
7.1 Contracting Member hereby agrees to pay NCPA for its allocated share of all costs
NCPA incurs for providing Services to Contracting Member. Such costs include REC transfer fees,
direct costs associated with the management and transfer of RECs, NCPA management costs set
forth in NCPA's then current Annual Budget, and any other reimbursable expenses incurred in
performing the Services. All costs NCPA incurs for providing Services to Contracting Member will
be allocated as set forth in Exhibit C and NCPA's then current Annual Budget. The Annual Budget
will be updated and approved by the NCPA Commission, as it deems necessary, but not less than
each year in connection with NCPA's Annual Budget process. Such approved updates will reflect
NCPA's then current estimated annual cost for performing such continuing Services. Contracting
Member shall pay NCPA for Services rendered pursuant to this Agreement at the time and in the
manner set forth herein. The payments specified herein shall be the only payments from
Contracting Member to NCPA for Services rendered pursuant to this Agreement. NCPA shall
submit all invoices to Contracting Member in the manner specified herein.
NCPA and Contracting Member acknowledge and agree that compensation paid by
Contracting Member to NCPA under this Agreement is based upon NCPA's estimated costs of
providing the Services required hereunder, including salaries and benefits of employees and
subcontractors of NCPA, if any. Consequently, the parties further agree that compensation
hereunder is intended to include the costs of contributions to any pensions and/or annuities to
which NCPA and its employees, agents, and subcontractors may be eligible. Contracting Member
therefore has no responsibility for such contributions beyond compensation required under this
Agreement.
7.2 Reimbursements. Contracting Member agrees to reimburse NCPA for NCPA's
reasonable costs (including attorney's fees) to respond to any investigation by WREGIS, CPUC, or
any other regulatory or enforcement agency having jurisdiction as to the validity of any transferred
Project REC and CVP REC under this Agreement by NCPA to Contracting Member. If more than
the Contracting Member's Project REC and CVP REC transfers are being investigated, NCPA
agrees that all such costs shall be proportionately allocated among the applicable Contracting
Members based upon the total number of Project RECs and CVP RECs under investigation.
Contracting Member further agrees to reimburse NCPA for NCPA's reasonable costs
(including attorney's fees) of responding to any claim brought by a non-regulatory/non-enforcement
third party concerning the RECs transferred under this Agreement from NCPA to Contracting
Member. NCPA agrees that Contracting Member may independently appear in such proceeding
and cooperate in the defense of any such claim if the Contracting Member so elects.
Section 8. BILLING AND PAYMENT
8.1 Invoices. NCPA shall submit invoices in the form of the All Resources Bill, based on
the cost for Services performed and reimbursable costs incurred prior to the invoice date. Invoices
shall be accompanied with adequate and proper supporting information and documentation for the
Services performed, if and as applicable. For example:
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Volume of Project RECs and CVP RECs transferred to Contracting Member
8.2 Monthly Payment. Contracting Member shall make payments, based on invoices
received, for Services satisfactorily performed, and for authorized reimbursable costs incurred as
specified herein.
Payments shall be remitted directly to:
Northern California Power Agency
651 Commerce Drive
Roseville, California 95678
Attn: Accounts Receivable
Except for an "Uncontrollable Force" as described in Section 10 hereof, any amount due and
payable but not paid by Contracting Member on the invoice due date set forth on the invoice 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. NCPA will mail all
invoices within 24 hours of the invoice date thereon.
The postmark date on the envelope containing payment by check shall be used to determine
timeliness of payment, except that payments received later than seven (7) days after the due date
shall be declared late without regard to postmark date. An invoice coming due on a Friday,
holiday, or weekend shall be due on the next following nationally recognized working day.
8.3 Billing Dispute. If all or any portion of a bill is disputed by Contracting Member, the
entire amount of the bill shall be paid when due, and NCPA's Authorized Representative shall be
concurrently provided written notice of the disputed amount and the basis for the dispute. NCPA
shall reimburse any amount determined to have been incorrectly billed, within ten (10) days after
such determination.
8.4 Total Payment. Contracting Member shall pay for the Services to be rendered by
NCPA pursuant to this Agreement. Contracting Member shall not pay any additional sum for any
expense or cost whatsoever incurred by NCPA in rendering Services pursuant to this Agreement
other than the payments provided for herein unless the Agreement has been modified by a
properly executed amendment in accordance with Section 13.16 this Agreement.
8.5 Payment of Taxes. NCPA is solely responsible for the payment of employment
taxes incurred under this Agreement and any similar federal or state taxes.
8.6 Payment upon Termination. In the event that Contracting Member or NCPA
terminates this Agreement pursuant to Section 5, Contracting Member shall compensate NCPA for
all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of
the date of written notice of termination. NCPA shall maintain adequate logs and timesheets in
order to verify costs incurred to that date.
Section 9. STATUS OF NCPA; FACILITIES AND EQUIPMENT
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9.1 Independent Contractor. At all times during the term of this Agreement, NCPA shall
be an independent contractor and shall not be an employee of Contracting Member. Contracting
Member shall have the right to control NCPA only insofar as the results of NCPA's Services
rendered pursuant to this Agreement. Contracting Member shall not have the right to control the
means by which NCPA accomplishes Services rendered pursuant to this Agreement.
Section 10. UNCONTROLLABLE FORCES
10.1 Obligations of the Parties, other than those to pay money when due, shall be
excused for so long as and to the extent that failure to perform such obligations is due to an
Uncontrollable Force; provided, however, that if either Party is unable to perform due to an
Uncontrollable Force, such Party shall exercise due diligence to remove such inability with
reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party
to settle any strike, lockout, or labor dispute in which it may be involved, or to accept any permit,
certificate, contract, or any other service agreement or authorization necessary for the performance
of this Agreement which contains terms and conditions which a Party determines in its good faith
judgment are unduly burdensome or otherwise unacceptable.
10.2 Each Party shall notify the other promptly, by telephone to the other Party's
operating personnel and Authorized Representative identified in Section 3.6, upon becoming aware
of any Uncontrollable Force which may adversely affect the performance under this Agreement. A
Party shall additionally provide written notice in accordance with Section 13.8 to the other Party
within 24 hours after providing notice by telephone. Each Party shall notify the other promptly,
when an Uncontrollable Force has been remedied or no longer exists.
Section 11. LEGAL REQUIREMENTS
11.1 Governing Law. The laws of the State of California shall govern this Agreement,
without regard for the choice of law doctrine.
11.2 Compliance with Applicable Laws. NCPA and any subcontractors shall comply with
all laws applicable to the performance of the Services hereunder.
11.3 Other Governmental Regulations. To the extent that this Agreement may be funded
by fiscal assistance from another governmental entity, NCPA and any subcontractors shall comply
with all applicable rules and regulations to which Contracting Member is bound by the terms of
such fiscal assistance program.
11.4 Licenses and Permits. NCPA represents and warrants to Contracting Member that
NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that is legally required to practice their respective professions.
NCPA represents and warrants to Contracting Member that NCPA and its employees, agents, any
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions.
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11.5 Nondiscrimination and Equal Opportunity. NCPA shall not discriminate, on the basis
of a person's race, religion, color, national origin, age, physical or mental handicap or disability,
medical condition, marital status, sex, or sexual orientation, against any employee, applicant for
employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for
any services or programs provided by NCPA under this Agreement. NCPA shall comply with all
applicable federal, state, and local laws, policies, rules, and requirements related to equal
opportunity and nondiscrimination in employment, contracting, and the provision of any services
that are the subject of this Agreement, including but not limited to the satisfaction of any positive
obligations required of NCPA thereby.
NCPA shall include the provisions of this Subsection in any subcontract approved by
Contracting Member's Contract Administrator or this Agreement.
Section 12. KEEPING AND STATUS OF RECORDS.
12.1 NCPA's Books and Records. NCPA shall maintain any and all ledgers, books of
account, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for Services or expenditures and disbursements charged to the Contracting
Member under this Agreement for a minimum of three (3) years, or for any longer period required
by law, from the date of final payment to NCPA pursuant to this Agreement.
12.2 Inspection and Audit of Records. Any records or documents that Section 12.1 of this
Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or copying
at any time during regular business hours, upon oral or written request of the Contracting Member.
Under California Government Code Section 8546.7, if the amount of public funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be
subject to the examination and audit of the State Auditor, at the request of Contracting Member or
as part of any audit of the Contracting Member, for a period of three (3) years after final payment
under the Agreement.
12.3 Confidential Information and Disclosure. During the term of this Agreement, either
party ("Disclosing Party") may disclose confidential, proprietary or trade secret information (the
"Information"), to the other party ("Receiving Party"). All such Information made available in a
tangible medium of expression (such as, without limitation, on paper or by means of magnetic
tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate
that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of
disclosure to Receiving Party. Receiving Party shall hold Disclosing Party's Information in
confidence and shall take all reasonable steps to prevent any unauthorized possession, use,
copying, transfer or disclosure of such Information. Receiving Party shall not attempt to reverse
engineer or in any manner create any product or information which is similar in appearance to or
based on the Information provided by Disclosing Party. Receiving Party shall not disclose
Disclosing Party's Information to any person other than Receiving Party's employees, agents,
contractors and subcontractors who have a need to know in connection with this Agreement.
Receiving Party's confidentiality obligations hereunder shall not apply to any portion of
Disclosing Party's Information which:
Renewable Energy Certificates Transfer Agreement
v.5/26/2011 Page 12 of 17
(a) Has become a matter of public knowledge other than through an act or omission of
Receiving Party;
(b) Has been made known to Receiving Party by a third party in accordance with such
third party's legal rights without any restriction on disclosure;
(c) Was in the possession of Receiving Party prior to the disclosure of such
Information by Disclosing Party and was not acquired directly or indirectly from the other party or
any person or entity in a relationship of trust and confidence with the other party with respect to
such Information;
(d) Receiving Party is required by law to disclose; or
(e) Has been independently developed by Receiving Party from information not
defined as "Information" in this Agreement, as evidenced by Receiving Party's written records.
Receiving Party shall return or destroy Disclosing Party's Information (including all copies
thereof) to Disclosing Party promptly upon the earliest of any termination of this Agreement or the
Disclosing Party's written request. Notwithstanding the foregoing, Receiving Party may retain one
copy of such Information solely for archival purposes, subject to the confidentiality provisions of this
Agreement. The parties understand that each party is a public entity and is subject to the laws that
may compel either to disclose information about the other's business.
Section 13. MISCELLANEOUS PROVISIONS
13.1 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, the prevailing Party
shall be entitled to reasonable attorneys' fees in addition to any other relief to which that Party may
be entitled. The court may set such fees in the same action or in a separate action brought for that
purpose.
13.2 Venue. In the event that either party brings any action against the other 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.
13.3 Severability. If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, or if any provision of this Agreement is
rendered invalid or unenforceable by federal or state statute or regulation, but the remaining
portions of the Agreement can be enforced without failure of material consideration to any Party,
then the remaining provisions shall continue in full force and effect. To that end, this Agreement is
declared to be severable. Provided, however, that in the event any provision is declared to be
invalid, void or unenforceable, either Party may terminate this Agreement upon ten (10) days
written notice given within five (5) days of receipt of notice of final entry of judgment.
13.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
13.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit
of and shall apply to and bind the successors and assigns of the Parties.
Renewable Energy Certificates Transfer Agreement
v.5/26/2011 Page 13 of 17
13.6 Use of Recycled Products. NCPA shall endeavor to prepare and submit all reports,
written studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
13.7 Conflict of Interest. NCPA shall not employ any Contracting Member official or
employee in the work performed pursuant to this Agreement. No officer or employee of
Contracting Member shall have any financial interest in this Agreement that would violate California
Government Code Sections 1090 et seq.
13.8 Notices. Unless this Agreement requires otherwise, any notice, demand or request
provided for in this Agreement, or served, given or made shall become effective when delivered in
person, or sent by registered or certified first class mail, to the persons specified below:
David Dockham
Assistant General Manager, Power Management
651 Commerce Drive
Roseville, CA 95678
With a copy to:
Michael Dean
General Counsel
555 Capitol Mall, Suite 1200
Sacramento, CA 95814
Mel Grandi
Electric Utility Director
300 Seminary Ave.
Ukiah, CA 95482
With a copy to:
David Rapport
City of Ukiah Attorney
405 W. Perkins Street
Ukiah, CA 95482
Whenever it is required, permitted, or desired in this Agreement that written notice or demand be
given by any Party to any other Party, such notice or demand may be either personally served or
sent by United States Mail, or facsimile. Notice shall be deemed to have been given when
personally served, when deposited in the United States Mail, certified or registered with postage
prepaid and properly addressed, or when transmitted by facsimile provided however, notices
delivered by facsimile shall only be effective if delivered during regular business hours on a day
that is considered a regular business day for NCPA by the involved Parties.
Renewable Energy Certificates Transfer Agreement
v.5/26/2011 Page 14 of 17
13.9 Integration; Incorporation. This Agreement, including all the Exhibits attached
hereto, represents the entire and integrated agreement between Contracting Member and NCPA
relating to the subject matter of this Agreement, and supersedes all prior negotiations,
representations, or agreements, either written or oral. All Exhibits attached hereto are incorporated
by reference herein.
Exhibit A - Scope of Services
Exhibit B - NCPA Registered Generating Units
Exhibit C - Allocation of Costs and Fees
Exhibit D - NCPA Summaries of Liability Insurance
Exhibit E - Renewable Energy Certificates Transfer Request
13.10 Dispute Resolution. If any dispute arises between the Parties that cannot be settled
after engaging in good faith negotiations, Contracting Member and NCPA agree to resolve the
dispute in accordance with the following:
13.10.1 Each Party shall designate a senior management or executive level
representative to negotiate any dispute;
13.10.2 The representatives shall attempt, through good faith negotiations, to resolve the
dispute by any means within their authority.
13.10.3 If the issue remains unresolved after ONE HUNDRED AND TWENTY (120)
days of good faith negotiations, despite having used their best efforts to do so, either Party may
pursue whatever other remedies may be available to it.
13.10.4 This informal resolution process is not intended to nor shall be construed to
change the time periods for filing a claim or action specified by Government Code § 900, et seq.
13.11 Other Agreements. This Agreement is not intended to modify or change any other
agreement between any of the Parties, individually or collectively.
13.12 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
13.13 Obligations Several. The duties, obligations and liabilities of the Parties are
intended to be several and not joint or collective. Nothing contained in this Agreement shall ever
been construed to create an association, trust, partnership or joint venture or to impose a trust or
partnership duty, obligation or liability on or with regard to either Party. Each Party shall be
individually and severally liable for its own obligations under this Agreement.
13.14 Effect of Section Headings. Section headings and subheadings appearing in this
Agreement are inserted for convenience only and shall not be construed as interpretation of text.
13.15 Authority of Signatories. The signatories hereby represent that they have been
appropriately authorized to execute this Agreement on behalf of the Party for whom they sign.
Renewable Energy Certificates Transfer Agreement
v.5/26/2011 Page 15 of 17
13.16 Amendments.
13.16.1 Deemed Approved Amendments. It is understood and agreed by the Parties
that any NCPA Commission approved update to the then current NCPA Annual Budget rates and
charges related to Services to be performed under this Agreement is deemed an approved
amendment to this Agreement not requiring the consent of Contracting Member. Likewise, the
addition of a Registered Generating Unit in Exhibit B hereto, or revisions to the form of Exhibit E by
NCPA hereto are deemed an approved amendment to this Agreement not requiring the consent of
the Contracting Member. A copy of any revised Exhibit B and Exhibit E will be provided to
Contracting Member within thirty (30) days of such revision. Any such amendments to Exhibit B or
Exhibit E shall not affect any completed REC transfers.
13.16.2 WREGIS Amendments. As of the execution date of this Agreement all Project
RECs and CVP RECs that have been issued or transferred to NCPA are held in NCPA's WREGIS
account, and the WREGIS Terms of Use are used as the standard for issuance, storage and
transfer of RECs. If at some point after the execution date of this Agreement an alternative third
party certifying entity is created and replaces WREGIS, or is used in addition to WREGIS for
matters relating to RECs, or if the WREGIS Terms of Use are changed by WREGIS in a manner
affecting this Agreement, NCPA and Contracting Member agree to amend this Agreement, as
necessary, to reflect such change, and will make such amendments in good faith.
13.16.3 Authorized Representatives and Addresses for Notice. Either Party may, by
providing written notice to the other party, modify either the identity or address for its Authorized
Representative as identified in section 3.6, or may amend its address for notice as provided in
Section 13.8.
13.16.4 Amendments in General. Except as otherwise provided in Section 13.16, the
Parties may amend this Agreement only by a writing signed by all the Parties following each
Party's receipt of written resolution/authorization from their governing bodies, which
resolutions/authorizations shall be condition precedents to any amendments of this Agreement and
shall be attached as Exhibits to this Agreement.
The Parties have executed this Agri
Northern Califo nia Power Agency
r
JAM PPE, General an her
3ement as of the Effective Date.
Contracting Member
J°ne Chambers, City Manager
i
Attest:
Assistant Secretary of the Commission
Attest:
12
J' Ajne Currie, City Clerk
Renewable Energy Certificates Transfer Agreement
v.5/26/2011 Page 16 of 17
Approved as to Form:
General Counsel
Approved as to Form:
, r.*- %
Davi apport, City Attorn y
Renewable Energy Certificates Transfer Agreement
v.5/26/2011 Page 17 of 17
EXHIBIT A
SCOPE OF SERVICES
NCPA shall perform the following Services on behalf of Contracting Member pursuant to the
Agreement between the Parties:
1. Contracting Member may direct NCPA to electronically transfer into Contracting
Member's WREGIS account its allocated share, in whole megawatts-hours, of the RECs
attributable to NCPA Project generation and CVP RECs as specified in Section 4 by completing
and submitting to NCPA the Renewable Energy Certificates Transfer Request attached to this
Agreement as Exhibit E. Such Renewable Energy Certificates Transfer Request must be
executed and submitted by Contracting Member's Authorized Representative.
2. Such transfer shall be completed by the transfer of RECs as electronically recorded in
NCPA's WREGIS account to the WREGIS account of the Contracting Member and will be
considered final upon acknowledgement and acceptance of the transfer by Contracting Member
in accordance with the WREGIS Terms of Use. Should any regulatory or other entity require
additional or alternative means to evidence the transfer of the Project RECs or CVP RECs to the
Contracting Member, NCPA will cooperate to meet that entity's reasonable requirements.
Renewable Energy Certificates Transfer Agreement Exhibit A-1
EXHIBIT B
NCPA REGISTERED GENERATING UNITS
The Following is a list of all NCPA Projects that are recognized by WREGIS as Registered
Generating Units:
- Geothermal Unit 1 - Geothermal 1
- Geothermal 1 -Unit 2 - Geothermal 1
- Geothermal 2 -Unit 3 - Geothermal 2
- Geothermal 2 -Unit 4 - Geothermal 2
- COLVIL 7 PL1X1- Collierville Powerhouse
- COLVIL 7 PL1X2 - Collierville Powerhouse
- Spicer-1-Units - Spicer Meadow Project
- Hydro_Solar- Hydro_Solar1
Renewable Energy Certificates Transfer Agreement
Version No, 1.1
Effective Date: 05/26/2011 Exhibit B-1
EXHIBIT C
ALLOCATION OF COSTS AND FEES
Costs and expenses resulting from Services provided under this Agreement will be allocated to
Contracting Member as follows:
REC Transfer Fees
All volumetric costs and fees associated with Contracting Member's request for the transfer of
Project RECs and CVP RECs will be charged directly to Contracting Member.
NCPA Management Costs
All costs associated with NCPA's management of this Agreement and/or costs associated with the
management of Services provided under this Agreement (e.g. staff time and resources), if any, will
be allocated to Contracting Member as set forth in NCPA's then current Annual Budget.
CVP REC Costs
All costs specifically and distinctly attributed to CVP RECs, except volumetric costs associated with
the transfer of CVP RECs as described in Exhibit C, will be allocated to Contracting Member based
on Contracting Member's allocated share, if any, of the total quantity of CVP RECs transferred to
NCPA from Western.
Other Costs and Fees
All costs and fees incurred by NCPA while performing Services under this Agreement for which a
cost allocation method is not defined herein will be allocated to Contracting Member based on the
principle of cost causation.
Renewable Energy Certificates Transfer Agreement Exhibit C-1
EXHIBIT D
NCPA SUMMARIES OF LIABILITY INSURANCE
See the attached Summaries of the following insurance coverage:
1. Workers' Compensation & Employer's Liability
2. Automobile Liability & Physical Damage
3. Excess Liability
4. Professional Liability
Renewable Energy Certificates Transfer Agreement Exhibit D-1
EXHIBIT E
RENEWABLE ENERGY CERTIFICATES TRANSFER REQUEST
This document constitutes a "Renewable Energy Certificates Transfer Request", as described in
the RENEWABLE ENERGY CERTIFICATES TRANSFER AGREEMENT ("Agreement"), dated as
of . This Renewable Energy Certificates Transfer Request shall supplement and form
part of the Agreement and shall be subject to the terms and conditions specified therein.
The undersigned Contracting Member and Project Participant hereby requests NCPA to
electronically transfer into Contracting Member's WREGIS account Renewable Energy Certificates
sourced from NCPA Project Capacity and Energy.
Registered Generating Units & CVP RECs
Select the Registered Generating Unit, or combination of units, and/or CVP RECs from which
Contracting Member requests the transfer of Renewable Energy Certificates:
Registered Generating Units
❑ - Geothermal 1_Unit 1 - Geothermal 1; Fuel Type - Geothermal Energy
❑ - Geothermal 1-Unit 2 - Geothermal 1; Fuel Type - Geothermal Energy
❑ - Geothermal 2_Unit 3 - Geothermal 2; Fuel Type - Geothermal Energy
❑ - Geothermal 2-Unit 4 - Geothermal 2; Fuel Type - Geothermal Energy
❑ - COLVIL_7_PL1X1 - Collierville Powerhouse; Fuel Type - Hydroelectric Water
❑ - COLVIL_7_PL1X2 - Collierville Powerhouse; Fuel Type - Hydroelectric Water
❑ - Spicer _1_Units - Spicer Meadow Project; Fuel Type - Hydroelectric Water
❑ - Hydro-Solar - Hydro_Solar1; Fuel Type - Solar
CVP RECs
❑ - CVP RECs
Renewable Energy Certificate Transfer Account & Vintage Information
Provide the following information:
(a)
(b)
(c)
(d)
Registered Account Holder:
Active SubAccount:
Begin Vintage:
End Vintage:
a. Enter "Continuous" as End Vintage if Contracting Member chooses to have Renewable Energy Certificates
transferred as available on a forward basis
b. If Contracting Member has previously requested a "Continuous" transfer of RECs as specified above, but
chooses to stop the automatic transfer of RECs for future vintage periods, Contracting Member must provide a
Renewable Energy Certificate Transfer Request with a stated End Vintage date for which Contracting Member
chooses to halt the automatic transfer of RECs on a forward basis
Renewable Energy Certificate Transfer Quantity
Select one of the following to specify the quantity of Renewable Energy Certificates requested:
Renewable Energy Certificates Agreement
Version No. 1.1
Effective Date: 05/26/2011 Exhibit E-1
❑ - Total Contracting Member's Allocated Share of NCPA Project RECs (Section 4); As Applicable
❑ - Total Contracting Member's Allocated Share of CVP RECs (Section 4); As Applicable
❑ - Fixed Amount (MWh)
If Fixed Amount selected above list requested amount for each Registered Generating Unit below:
- Geothermal Unit 1 - Geothermal 1:
- Geothermal Unit 2 - Geothermal 1:
- Geothermal 2 -Unit 3 - Geothermal 2:
- Geothermal 2 -Unit 4 - Geothermal 2:
- COLVIL 7 PL1X1 - Collierville Powerhouse:
- COLVIL 7 PL1X2 - Collierville Powerhouse:
- Spicer_1_Units - Spicer Meadow Project:
- Hydro_Solar- Hydro_Solar1:
- CVP RECs: MWh
MWh
MWh
MWh
MWh
MWh
MWh
MWh
MWh
Those persons executing this Renewable Energy Certificates Transfer Request on behalf of
Contracting Member hereby warrant that they are the "Authorized Representative" of Contracting
Member as provided in the Agreement and are authorized to do so.
Member
Authorized Representative
Date
Renewable Energy Certificates Agreement
Version No. 1.1
Effective Date: 05/26/2011 Exhibit E-2
A PUBLIC AGENCY
NC PA
f" NORTHERN CALIFORNIA POWER AGENCY
651 Commerce Drive
Roseville, CA 95678
October 12, 2011
City of Ukiah
Attn: Diann Lucchetti
300 Seminary Avenue
Ukiah, CA 95482-5400
RE: Renewable Energy Certificates Transfer Agreement Between NCPA
and City of Ukiah
Dear Diann,
(916) 781.3636
www.ncpa.com
Enclosed herewith for your files is a fully executed original of the Renewable Energy Certificates
Transfer Agreement Between NCPA and City of Ukiah. Thank you.
Sincerely,
TRISHA HUB ARD
Administrative Assistant,
Power Management
(916) 781-4282 781-4252 fax
Enclosures
/tlh