HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2010-08-01 Amendment 1; 2012-09-28;Litk 0 900 1� -. M
A Pu911C AGENCY
NCPA
NORTHERN CALIFORNIA POWER AGENCY
FIRST AMENDMENT TO THE LODI ENERGY CENTER
PROJECT MANAGEMENT AND OPERATIONS AGREEMENT
This First Amendment ("Amendment") to the Lodi Energy Center Project Management and Operations
Agreement is made and entered into as of the aet!!day of
5W-ejnb�i 2012 („Effective Date"), by
and between the Northern California Power Agency ("NCPA"), a joint powers agency organized under
the laws of the State of California, and each of the undersigned Participants in the Lodi Energy Center
Project ("Participants") (collectively, the "Parties").
WHEREAS, the Parties entered into the Lodi Energy Center Project Management and Operations
Agreement dated effective August 1, 2010, (the "Agreement") for the purpose of governing all matters
related to the operations and management of the Lodi Energy Center, and
WHEREAS, the Agreement sets forth NCPA duties, obligations and authority in connection with
the management and operation of the Lodi Energy Center; and
WHEREAS, the Parties now desire to amend the Agreement to clarify that NCPA's authority to
obtain all necessary Federal, state and local permits, licenses, opinions and rulings to construct, operate,
and maintain the Project in accordance with all legal and regulatory requirements and Prudent Utility
Practice includes, but is not limited to, participation in the California Air Resources Boards Cap -and -
Trade Program and the ability to transfer Compliance Instruments between NCPA and Participants as set
forth below.
WHEREAS, the Lodi Energy Center Project Participant Committee voted to approve this
Amendment to the Agreement on March 12, 2012; and
WHEREAS, the Parties have agreed to modify Article 3, Section 3.3, (NCPA Obligations) to add a
new Section 3.3c, and
WHEREAS, in accordance with Article 22, Section 22.1 all changes to the Agreement must be
must be in writing and signed by all the Parties;
NOW, THEREFORE, the Parties agree as follows:
1. Article 3, Section 3 (NCPA's Obligations) of the Agreement shall be amended to add a new
Section 3.3c, which shall read in full as follows:
C. 1. NCPA Obligation For the sake of clarity, and as provided in Section 27.2
of the PSA and in Sections 3.3b.2 and 3.3b.5 above, the authority and obligation of NCPA and
the NCPA General Manager to obtain Federal, state and local permits, licenses, opinions and
rulings as necessary to construct, operate, and maintain the Project in accordance with all legal
and regulatory requirements and Prudent Utility Practice includes, but is not limited to, the
acquisition and surrender of any necessary Compliance Instruments to meet environmental
emissions compliance obligations when required bylaw. A Compliance Instrument means an
allowance, ARB offset credit, or sector -based offset credit as provided under the Cap -and -Trade
Program defined below in section 3.3c.2.
2. Purpose; Future Program; Definitions This Section 3.3c and Agreement
Schedule 11.00 are intended to address applicable obligations imposed on Covered Entities,
including NCPA in its role as LEC owner/operator, by the California Global Warming Solutions Act
(AB 32) and Title 17 California Code of Regulations, Article 5, Section 95800 et seq. (Cap -and -
Trade Program or Cap -and -Trade). If any other applicable program, regulation, or law imposes
requirements on NCPA, in its role as LEC owner/operator, relating to greenhouse gas emissions
or similar types of environmental mandates, NCPA will consult with the PPC and will manage
and comply with such requirements in a manner as similar as feasible to the process described
in this Section 3.3c, including through the development of an appropriate Agreement Schedule
addition to this Agreement, if necessary. Provided, however, that under all circumstances each
Participant shall be responsible for its GES of all costs of such compliance. All definitions in this
Section 3.3c and Agreement Schedule 11.00, not otherwise defined in the PSA or this
Agreement, are as stated in the Cap -and -Trade Program.
Participants' Obligations; Alternatives Each Participant shall be responsible for
its GES of all costs incurred by NCPA attributable to the Project in complying with Cap -and -
Trade, including costs incurred in obtaining Compliance Instruments that the NCPA General
Manager may acquire or purchase as provided in Agreement Schedule 11.00, as may be
amended from time to time. In lieu of paying for any portion of its GES of the cost of obtaining
necessary Compliance Instruments, to the extent permitted by law and administratively feasible,
Participants may transfer and NCPA may accept Compliance Instruments, and/or Participants
may request placement of Compliance Instruments that are directly allocated to such
Participant(s) into NCPA's LEC Compliance Account as provided in Agreement Schedule 11.00, as
may be amended from time to time. To the extent any directly allocated Compliance
Instruments are statutorily or otherwise prohibited from being used to meet the Project's
Compliance Obligations, NCPA has no obligation to accept any such placement of directly
allocated Compliance Instruments into NCPA's LEC Compliance Account from any Participant. In
addition, Participants may provide direction to NCPA, in accordance with procedures described
in Agreement Schedule 11.00, as may be amended from time to time, for the purchase of
Compliance Instruments to meet all or a portion of a Participant's GES of the Project's
Compliance Obligation, in which case NCPA shall participate in Auctions and Allowance Price
Containment Reserve Sales in accordance with such Participant's directions. Each Participant
providing direction to NCPA to purchase Compliance Instruments warrants the authority of the
person executing such direction on such Participant's behalf, and NCPA shall be entitled to fully
rely upon the authority of such person irrespective of whether such direction may be in
First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
contravention of any regulations, procedures, protocols or rules applicable to such Participant.
NCPA will treat any such Participant directions to purchase Compliance Instruments as
confidential to the extent allowed by law. No additional costs or penalties shall be incurred by
other Participants or NCPA by reason of any such transfer, placement, or direction; and any
identifiable additional costs, charges, fees, penalties, liabilities and damages incurred by the
Project or NCPA resulting from such activities will be fully charged to, and paid by, the
Participant taking such action(s).
Under no circumstances shall any Participant be liable under the PSA, the PMOA or PMOA
schedules for any costs, charges, fees, penalties, liabilities, and damages arising out of activities
related to Cap -and -Trade compliance for any emission sources other than the Project, including,
but not limited to, penalties for failure to comply with reporting, surrender, or other legal
obligations.
(4) Project's Cap -and Trade Account NCPA shall establish, as appropriate,
internal accounting for LEC separate from those of NCPA's other projects. LEC Project
accounting shall include: a) Compliance Instruments and Compliance Obligations to reflect the
Project's share of NCPA's total Compliance Obligation; b) any Compliance Instruments provided
to NCPA by Participants for the Project; and c) any Compliance Instruments purchased by NCPA
for the Project pursuant to Participants' directions. NCPA shall establish procedures in
Agreement Schedule 11.00, as may be amended from time to time, for accurate and timely
accounting of the Project's share of NCPA's total Compliance Obligations and Compliance
Instruments.
(5) Participants' Cap -and -Trade Accounts NCPA shall establish, as appropriate,
individual Participant accounts which shall include: a) Compliance Instruments and Compliance
Obligations to reflect each Participant's GES of the Project's Compliance Obligation; b) any
Compliance Instruments provided to NCPA by each Participant; and c) any Compliance
Instruments purchased by NCPA pursuant to each Participant's directions. NCPA shall establish
procedures in Agreement Schedule 11.00, as may be amended from time to time, for accurate
and timely accounting of such Project related Compliance Obligations and Compliance
Instruments. Such accounting shall also include and allocate to the responsible Participant(s)
any identifiable costs, charges, fees, penalties, liabilities, and damages arising out of a
Participant's activities related to Cap -and -Trade compliance for the Project, including, but not
limited to, penalties for failure to comply with reporting, surrender, or other legal obligations,
resulting from a Participant's decisions or actions to transfer Compliance Instruments or request
placement of Compliance Instruments into NCPA's LEC Compliance Account, or provide
directions to NCPA. Under no circumstances shall NCPA or any other Participant be liable for
such costs attributable to the responsible Participant.
First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
2. This Amendment in noway alters the terms and conditions of the Agreement except as
specifically set forth herein.
The Parties have executed this Amendment as of the Effective Date.
NORTHERN CALIFORNIA POWER AGENCY
By: Title:�K'°3
Date: d
Approved as to//form:
CITY OF AZUSA
By:
Approved as to form:
By:
First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
Title:
Date:
Title:
Date:
Titl
Date:
4
Linda Stone
From: Jim Pope
Sent: Monday, September 24, 2012 9:44 AM
To: *All HQ Staff; Michael Dean
Subject: Signature Authority
I will be on vacation through October 14, 2012. Dave Dockham will have signature authority on my behalf
during this time.
Thank you,
James H. Pope
General Manager
Northern California Power Agency
651 Commerce Drive
Roseville, CA 95678
2. This Amendment in no way alters the terms and conditions of the Agreement except as
specifically set forth herein.
The Parties have executed this Amendment as of the Effective Date.
NORTHERN CALIFORNIA POWER AGENCY
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Approved as to form:
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CITY OF AZUSA
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
Title:
Date:
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Title: Director of Utilities
Date: 7/31/12
Title: City Attorney
Date:
4
BAY AREA RAPID TRANSIT DISTRICT
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Approved as to form:
By:
CITY OF BIGGS
By:
Approved as to form:
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CALIFORNIA DEPARTMENT OF WATER RESOURCES
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Approved as to form:
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
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SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
By:
Approved as to form:
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CITY OF BIGGS
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CALIFORNIA DEPARTMENT OF WATER RESOURCES
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
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SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
By:
Approved as to form:
By:
CITY OF BIGGS
By:
Approved as to form:
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CALIFORNIA DEPARTMENT OF WATER RESOURCES
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
9
CITY OF GRIDLEY
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App rov asto rm:
By:
CITY OF HEALDSBURG
By:
Approved as to form:
By:
CITY OF LODI
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
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Approved as to form:
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CITY OF HEALDSBURG
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
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CITY OF LODI
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KONRADT BARTLAM
Approved as to form:
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D. STEPHEN SCHWABAUER, City Attorney
JANICE D. MAGDICH, D ut Cit Attorney
Title:
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Title: City Manager
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Attest:
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City Clerk
First Amendment to the Lodi Energy Center
Project Management and Operations Agreement 6
CITY OF LOMPOC
Approved as to form:
By:
MODESTO IRRIGATION DISTRICT
By:
Approved as to form:
By:
PLUMAS-SIERRA RURAL ELECTRIC COOPERATIVE
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
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Title: General Manager
Date: September 11, 2012
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CITY OF LOMPOC
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
POWER AND WATER RESOURCES POOLING AUTHORITY
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CITY OF SANTA CLARA
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CITY OF UKIAH
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Approved as to form:
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By: Title:,
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First Amendment to the Lodi Energy Center
Project Management and Operations Agreement
POWER AND WATER RESOURCES POOLING AUTHORITY
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Approved as to form:
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CITY OF SANTA CLARA
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CITY OF UKIAH
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PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
Agreement Schedule 11.00
Management of Cap -and -Trade Program Compliance
The requirements of Subchapter 10 Climate Change, Article 5, Sections 95800 to
96023, Title 17, California Code of Regulations (Cap -and -Trade Program or Cap -
and -Trade) imposes obligations on NCPA to report GHG emissions caused by
operation of the Project and to surrender to the California Air Resources Board
Compliance Instruments for such emissions.
The procedures below outline NCPA, PPC, and Participant responsibilities with
regard to procurement, payment, purchase, sale, trade, transfer, identification,
certification, and all similar activities ancillary to acquiring, evaluating, allocating,
and surrendering requisite AB32 Offsets, Allowances, penalties, certificates or
other Compliance Instruments, products, factors or considerations required and
associated with the operation of the Project. Such activities include, but are not
limited to, transactions between NCPA and third parties, transactions utilizing
agents and or third parties to act as intermediaries, and transactions between
and among Participants and NCPA if requested and feasible, all as may be
developed, revised, and approved by the PPC and NCPA Commission ("AB32
Compliance Activities"). Because the Cap -and -Trade Program is in its initial
stages, these principles are intended to be used as general guidance and may
be revised and or developed in further detail from time to time to respond to
changes in law, regulations, and market conditions.
General principles include:
1. All Participants are to be treated in an equitable manner.
2. All Participants shall be afforded the same opportunities to interact
with NCPA and or any outside agents utilized by NCPA as
approved and authorized by the PPC. NCPA's AB32 Compliance
Activities undertaken for the Project shall be subject to full
transparency for all Participants to the extent permitted by CARB
Regulations; provided that NCPA shall treat any Participant specific
information related to any Allowance Auction and or Allowance
Price Containment Reserve Sale (Reserve Sale) as confidential to
the extent required by law.
3. To the extent practicable, NCPA shall allow Participants to
individually manage their own risks of meeting their GES of the
Project's Compliance Obligations.
4. NCPA shall procure any required and as yet unattained
Compliance Instruments associated with LEC operations as close
PNIOA Schedule 11.00
Effective 9-28-2012
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
in time as practicable to daily LEC plant operations, unless
otherwise directed by the PPC, and pursuant to the protocols
contained in this Agreement Schedule 11.00.
5. Participants may transfer Compliance Instruments to meet up to
100% of a Participant's forecast and or actual GES of Project
Compliance Obligation for a given compliance time period in lieu of
cash payments to NCPA to procure such Compliance Instruments,
if such Compliance Instruments have not yet been procured by
NCPA and provided such Compliance Instruments have been
transferred to and received by NCPA prior to the next applicable
Auction or Reserve Sale. NCPA and such Participants shall
mutually agree to any such Compliance Instrument transfers prior
to making any such Compliance Instrument transfer and NCPA's
agreement to any such transfer shall not be unreasonably withheld.
NCPA and such Participants shall coordinate to meet any requisite
depository and timeline requirements consistent with the
Compliance Instrument procurement process outlined in this
Agreement Schedule 11.00.
6. On a monthly basis, NCPA shall timely invoice Participants in the
All Resources Bill, based on GES, for costs associated with AB32
Compliance Activities such that NCPA shall have on hand sufficient
funds and or Compliance Instruments from each Participant
projected to meet the full GES of each Participant's then current
Project Compliance Obligation.
7. NCPA intends, to the extent practicable, to allow Participants to
perform AB32 Compliance Activities and meet up to 100% of their
actual or forecast GES of the Project's Compliance Obligations
(current, future and, when required, in arrears) by conveyance of
any combination of cash and or Compliance Instruments to NCPA
sufficient to meet such obligations for applicable compliance
periods.
8. NCPA shall set up any needed accounts or accounting
mechanisms such that Participants may advance to NCPA, and
NCPA shall track by Participant, the combination of available cash
and or Compliance Instruments prior to actual Project operations
that may be utilized to meet all or a portion of a given Participant's
GES of the Project's Compliance Obligations.
9. NCPA shall set up and establish any requisite reserve accounts,
emissions products trading accounts and deposits, brokerage
accounts and deposits, and or other similar accounts, deposits, or
reserve requirements in consultation with the PPC.
10. NCPA shall account for Compliance Obligations for the Project
separately by Participant, and to the extent identifiable, account for
and allocate to each individual Participant any costs, charges, fees,
PMOA Schedule 11.00
Effective 9-28-2012
2
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
penalties, liabilities, and damages arising out of that Participant's
AB32 Compliance Activities for the Project including, but not limited
to, penalties for failure to comply with reporting, surrender, or other
legal obligations resulting from a Participant's decisions, actions
and or inactions to transfer Compliance Instruments, to request
placement of Compliance Instruments into NCPA's Compliance
Account, to provide directions to NCPA to not purchase
Compliance Instruments on its behalf, the inability to utilize such
Compliance Instruments to meet all or any portion of a Participant's
GES of the Project's Compliance Obligation, and or to pay cash.
Under no circumstances shall NCPA or any other Participant be
liable for such costs attributable to the responsible Participant.
Definitions:
"AB32" or "Cap -and -Trade Program" or "Cap -and -Trade" means the California
economy -wide Cap -and -Trade program for reducing greenhouse gas (GHG)
emissions, and which is a core mechanism of Assembly Bill 32, the Global
Warming Solutions Act of 2006, which requires California to reduce its climate
change causing emissions back to 1990 levels by 2020, and which CARB
unanimously adopted on October 20, 2011.
"Allowance" means a limited tradable authorization to emit up to one metric ton
of Carbon Dioxide Equivalent.
"Allowance Auction" or "Auction" means the process of selling California
Greenhouse Gas Allowances, along with allowances from External Greenhouse
Gas Emissions Trading Systems with which California has linked its Cap -and -
Trade Program pursuant to subarticle 12 of the AB32 Regulations, by offering
them up for bid, taking bids, and then distributing the allowances to winning
bidders.
"CARB" means the California Air Resources Board.
"CARB Accounts" means those accounts as specified in section 95831 of Cap -
and -Trade.
"California Greenhouse Gas Emissions Allowance" or "CAGHG Allowance" or
"Allowance" means an allowance issued by CARB and equal to up to one metric
ton of CO2 equivalent.
PMOA Schedule 11.00
Effective 9-28-2012
3
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
"Carbon Dioxide" or "CO2" means the most common of the generally defined
greenhouse gases consisting on a molecular level of one carbon atom and two
oxygen atoms.
"Carbon Dioxide Equivalent" or "CO2 Equivalent" or "CO2e" means the number
of metric tons of CO2 emissions with the same global warming potential as one
metric ton of another greenhouse gas. Global warming potential values shall be
determined consistent with the definition of Carbon Dioxide Equivalent in CARB's
Regulations for the Mandatory Reporting of Greenhouse Gas Emissions (MRR)
section 95102(a).
"Compliance Account" means an account created by the Cap -and -Trade
accounts administrator for a covered entity or opt -in covered entity with a
compliance obligation, to which the entity transfers compliance instruments to
meet its annual and triennial compliance obligations.
"Compliance Cash Account" or "CCA" means an account or entries within an
account that NCPA uses to track, by Participant by month, a Participant's cash
payments to/from NCPA to maintain prescribed funds at NCPA sufficient to meet
the Participant's GES of Project's Compliance Obligations that the Participant
has not otherwise met with Compliance Instruments that are timely transferred to
NCPA.
"Compliance Instrument" means an Allowance or Offset issued by CARIB or by
an External Greenhouse Gas Emissions Trading System to which California has
linked its Cap -and -Trade Program pursuant to subarticle 12 of Cap -and -Trade,
CARIB Offset Credit or sector -based offset. Each Compliance Instrument can be
used to fulfill a Compliance Obligation equivalent to up to one metric ton of
CO2e.
"Compliance Obligation" means the quantity of verified reported emissions or
assigned emissions for which a Covered Entity must submit Compliance
Instruments to CARB.
"Compliance Period" means the three-year period for which the compliance
obligation is calculated for covered entities except for the first compliance period.
The compliance obligation for the first compliance period only considers
emissions from data years of 2013 and 2014.
"Covered Entity" means an entity within California that has one or more of the
processes or operations and that may have a Compliance Obligation as specified
in subarticle 7 of Cap -and -Trade; and that has emitted, produced, imported,
manufactured, or delivered in 2008 or any subsequent year more than the
applicable threshold level specified in section 95812 (a) of Cap -and -Trade.
PMOA Schedule 11.00
Effective 9-28-2012
4
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
"Greenhouse Gas," "Greenhouse Gases," or "GHG" means carbon dioxide
(CO2), methane (CH4), nitrogen trifluoride (NF3), nitrous oxide (N20), sulfur
hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and
other fluorinated greenhouse gasses as defined in section 95802 of Cap -and -
Trade.
"Mandatory Reporting of Greenhouse Gas Emissions," "Mandatory Reporting
Requirements," or "MRR" means Division 3, Chapter 1, Subchapter 10, Article 2,
sections 95100 to 95133, title 17, California Code of Regulations.
"Metric Ton" or "MT" means a common international measurement for mass,
equivalent to 2, 204.6 pounds.
"Metric Ton Compliance Instrument Account" or "MTA" means an account
established or used by NCPA to track, by Participant by month and, if necessary,
by Compliance Period, the total amount of eligible Compliance Instruments,
including applicable serial numbers, then held by NCPA on behalf of each Project
Participant.
"Metric Ton Compliance Obligation Account" or "MTO" means an account
established or used by NCPA to track, by Participant by month, the total
estimated Compliance Instruments needed for GHG emissions from the Project
up through and including the next operating month, net of any Compliance
Instruments surrendered to CARB.
"Minimum Cash Compliance Obligation" or "MCCO" means the monthly minimum
required dollar amount determined by NCPA that each Participant must have on
deposit at NCPA in its CCA sufficient to cover the estimated cost of Compliance
Instruments to cover each Participant's MTA Shortfall.
"MTA Shortfall" means the positive value for each Participant given by the
formula:
MTO balance - MTA balance.
"NCPA Cap -and -Trade Account(s)" means an account or accounts established
and utilized by NCPA to track Compliance Instruments placed in NCPA's
applicable CARB Accounts for Participants and or cash from Participants, and or
to interface as necessary with CARB and or other Cap -and -Trade market
participants. Within such account(s), NCPA will track transaction details by each
Participant, each project and or other NCPA members as warranted.
"Offset Credit" or "Offset" means a tradable compliance instrument issued or
approved by CARB that represents a GHG reduction or GHG removal
enhancement of one MT of CO2e.
PMOA Schedule 11.00
Effective 9-28-2012
5
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
"Surrender Obligation" means the appropriate Annual or Triennial Compliance
Obligation as specified in section 95856 of Cap -and -Trade.
The above definitions are intended to reflect some of the definitions included in
the Cap -and -Trade Program or are necessary for NCPA's and Participants' AB32
Compliance Activities. If future Cap -and -Trade Program actions revise or
change any applicable definitions in this Schedule 11.00 in a manner that would
affect Participants and or Project Compliance Obligations or associated
calculations, the PPC and NCPA staff will timely discuss such definition changes
and make any requisite changes to this Agreement Schedule 11.00.
General Implementation Protocols
I. Forecast of Required Compliance Obligations
A. NCPA will annually prepare and submit to the PPC a forecast of GHG
emissions for LEC covering the subsequent 10 year operating period.
B. Compliance Obligations will be tabulated such that each Participant will be
provided a forecast of its GES of the Project's Compliance Obligations by
month and year, for each year of the 10 year forecast period.
C. The 10 year forecast will be updated annually and provided to the PPC by
December 31St of each year for the subsequent ten compliance years. (e.g.
December 31, 2012 for compliance years 2013 through 2022)
D. The 10 year forecast will be based on production cost model simulation
utilizing NCPA's Plexos software, or successor software package or
methodology should NCPA elect to utilize an alternate software package or
implement other manner of producing a 10 year forecast.
E. Production cost model assumptions and output will be reviewed with the PPC
in accordance with the schedule established for NCPA's annual budget
process. (For example, the forecast prepared for compliance years 2013
through 2022 would typically be reviewed with the PPC as part of the annual
budget review process during the January/February 2012 time frame).
F. As warranted and in NCPA's sole discretion, NCPA may make adjustments to
the 10 year forecast and shall provide any updated forecast to the PPC.
PMOA Schedule 11.00
Effective 9-28-2012
9
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
II. NCPA Compliance Instrument Invoicing, Tracking and Settlement
A. NCPA will invoice Participants monthly for their GES of the estimated cost
of Allowances forecast to be needed for the next operating month in
accordance with the 10 year forecast or, if available, more current forecast
of Project operating levels, as part of NCPA's All Resources Bill to
Participants.
B. Participants may satisfy their individual GES of the Project's Compliance
Obligations by providing to NCPA, or having available in an appropriate
NCPA Compliance Account, cash, Compliance Instruments, or a
combination thereof, which in aggregate, the amount or value of which is
equal to or greater than NCPA's current estimated cost to meet the
Participant's MCCO as determined in section II.E.
C. For each Participant, invoices will specify the Participant's GES of the
Project's required Compliance Obligations forecast for each operating
month in thousands of metric tons of Carbon Dioxide Equivalent and the
estimated cost to procure any forecast required number of Compliance
Instruments through the operating month.
1. NCPA will maintain at least three Compliance Obligation related
accounts for each Participant:
a. Metric Ton Compliance Obligation Account (MTO).
b. Metric Ton Compliance Instrument Account (MTA).
c. Compliance Cash Account (CCA).
2. Each Participant's monthly MTO at the time of the All Resources Bill,
will include the following:
a. The prior month's MTO balance.
b. Adjustments to prior months' Compliance Obligations occurring
as a result of:
PMOA Schedule 11.00
FffPctive 9-28-2.012
i. Variations in actual versus forecast generation levels.
ii. Variations in MTO due to adjustments to actual prior
months' Project heat rates and or other operating factors.
iii. Other AB32 Compliance Activities undertaken by either a
Participant or NCPA that result in a net increase or
7
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
decrease in each Participant's MTO (for example,
certified biogas deliveries may decrease a Participant's
monthly GES of the Project's Compliance Obligation)
c. The Participant's expected GES of the Project's monthly
Compliance Obligation based on a forecast of the next
month's operating levels (as adjusted for any applicable
biogas or other fuel deliveries which may reduce a
Participant's GES of the Project's monthly Compliance
Obligation).
d. Adjustments for any Compliance Instruments from such
Participant's MTA surrendered to CARB by NCPA to meet
the Project's Surrender Obligation.
3. Each Participant's monthly MTA at the time of the All Resources Bill
will include the following:
a. The prior month's MTA balance.
b. The net total of the following adjustments since the previous
All Resources Bill:
i. Compliance Instrument purchases/sales by NCPA on
Participant's behalf.
ii. Transfers of Compliance Instruments to NCPA by
Participant.
iii. Compliance Instruments from such Participant's MTA
surrendered to CARB by NCPA to meet the Project's
Surrender Obligation.
c. Other adjustments as warranted which affect each
Participant's monthly MTA balance.
d. For purposes of calculating the ARB, offsets of up to eight
percent (8.00%) of a Participant's GES of the Project's
Compliance Obligation may be included in the MTA for the
current Compliance Period. Offset tons which exceed this
eight percent limit shall be placed in the MTA for future
Compliance Period(s), as appropriate (see section ILD).
4. Each Participant's monthly CCA at the time of the All Resources Bill
will include the following:
PMOA Schedule 11.00
Effective 9-28-2012
N
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
a. The prior month's CCA balance.
b. Cash withdrawals.
i. Of amounts in excess of a Participant's MCCO, if
requested.
ii. Other refunds of excess funds as authorized by the
PPC.
c. Cash additions.
CCA portion of the monthly All Resources Bill
payment.
Other cash payments as required and paid by
Participant.
The monthly CCA balance at the time of the monthly All Resources Bill
will be calculated as: 4(a) - 4(b) + 4(c).
D. Pursuant to quantitative usage limits in Cap -and -Trade on designated
Compliance Instruments that are used to meet Compliance Obligations,
Offsets are limited to not more than eight percent (8.00 %) of a
Participant's GES of the Project's actual Compliance Obligations. To the
extent one or more Participants provide Offsets in excess of this eight
percent level, NCPA will not apply such excess Offsets in the calculation
of the ARB and each such Participant shall provide NCPA with a written
description of how such excess Offsets are to be used, including the
potential to designate such Offsets to be used for another Compliance
Period if administratively and regulatorily feasible, and NCPA will account
for such Participant's excess Offsets according to that plan and invoice, if
required, such Participant in accordance with that plan and section ILC
above.
E. If a Participant's MTO balance exceeds its MTA balance at the time of the
monthly All Resources Bill, NCPA will determine the MCCO by multiplying
such Participant's MTA Shortfall by the forward price per MTCO2e
associated with a suitable publicly available Compliance Instrument index
approved for such use by the PPC and NCPA Commission, or if no
suitable publicly available index is available, a price per MTCO2edeemed
appropriate for such use as determined and approved by the PPC and
NCPA Commission. If no publicly available Compliance Instrument index
is available and the PPC and NCPA Commission have not established an
alternative price to use for such purpose, the price per MTCO2e used for
such shortfall calculation shall be the Tier 1 Reserve Sale price applicable
PMOA Schedule 11.00
Effective 9-28-2012
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
to the next available Reserve Sale. This calculation determines each
Participant's MCCO and if such MCCO is greater than such Participant's
current CCA balance, such Participant's All Resources Bill for such month
will include an additional amount sufficient to bring its CCA balance up to
its MCCO.
F. The PPC and the NCPA Commission may establish, and from time to time
revise, MTA balance and timing requirements which prescribe that
Participants have Compliance Instruments in their MTA sooner and or in
greater quantity than would otherwise be necessary to meet the Project's
Cap -and -Trade Surrender Obligation schedule.
G. NCPA will track and account for all funds and Compliance Instruments
provided to NCPA by each Participant in support of its GES of the
Project's Compliance Obligations. Funds and Compliance Instruments
may be combined into single categorical accounts for ease of
administration, but in no circumstances will funds or Compliance
Instruments provided by one Participant be allocated or utilized to meet
the GES of the Project's Compliance Obligations of another Participant
without advance written authorization of the affected Participants.
III. Allowance Transfers to NCPA's Compliance Account
A. Participants may unilaterally participate in CARB Auctions and Reserve
Sales and or other means to obtain Compliance Instruments and may
want to transfer all or a portion of such Compliance Instruments into the
NCPA Holding Account to be used to meet up to 100% of a Participant's
GES of the Project's Compliance Obligation for a given compliance period.
If such transfers include Offsets, Participants may not transfer and NCPA
will not accept Offsets in excess of 8.00% of a given Participant's GES of
Project Compliance Obligation for a particular actual or forecast
Compliance Period. To transfer such Compliance Instruments into the
NCPA Holding Account, Participants shall appropriately notice NCPA of
such transfer and or provide a copy of the Participant's transfer request to
the CARB Executive Officer or other applicable entity. Upon receipt of
such notice, NCPA will prepare for the transfer of such Compliance
Instruments and separately track and account for such Compliance
Instruments received in each respective Participant's MTA at NCPA.
PMOA Schedule 11.00
Effective 9-28-2012
10
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
IV. Procurement of Compliance Instruments for CY2013 Project Compliance
Obligation
A. Participants acknowledge and understand the evolution, implementation
and interpretation of AB32 Regulations will be ongoing throughout
CY2012 and likely into CY2013 as well. Consequently, this Section IV will
currently address only NCPA's procurement of Compliance Instruments
for CY2013 Project Compliance Obligation, but the PPC will modify this
section as needed to encompass procurement for other calendar years as
CARB provides guidance and amends the AB32 Regulations. For freely
allocated Allowances that CARB provides to Participants in CY2012 and
CY2013, Participants assume such Allowances cannot be used to meet all
or any portion of the Project's Compliance Obligation.
B. NCPA, in consultation with the PPC, may utilize the services of
consultants, brokers, agents or other qualified individuals or organizations
ancillary to participating in Allowance Auctions, Offset procurement,
Reserve Sales, other markets for Compliance Instruments, and or other
Cap -and -Trade compliance activities, as warranted, to meet Project AB32
Regulation compliance.
C. NCPA will acquire and accept only Compliance Instruments issued or
approved by CARB to meet Project Compliance Obligations. NCPA will
initially acquire Compliance Instruments from four sources: 1) Allowances
purchased through participation in CARB administered Allowance
Auctions; 2) Allowances purchased through participation in CARB
administered Reserve Sales; 3) Compliance Instruments purchased by
Participants that are then transferred to NCPA; and 4) Compliance
Instruments purchased from other than CARB Auctions or Reserves
Sales.
D. The NCPA General Manager will designate primary and alternate
authorized account representatives, as necessary, to take actions in
regard to NCPA's Cap -and -Trade accounts, CARB administered
Allowance Auctions and Reserve Sales, and other transactions related to
attaining and maintaining Cap -and -Trade regulatory compliance.
E. NCPA will fulfill all applicable Project reporting requirements associated
with AB32 Regulations.
F. NCPA's overall Project Cap -and -Trade compliance objective is to obtain
requisite CY2013 Project Compliance Instruments at the lowest
reasonably expected cost, balancing the risks of Compliance Instrument
PMOA Schedule 11.00
Effective 9-28-2012
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
price volatility and availability and the need to meet the CY2013 Project
Compliance Obligation.
G. To meet 100% of the total CY2013 Project Compliance Obligation, NCPA
will use best reasonable efforts to acquire the total needed quantity of
Compliance Instruments on or before November 1, 2014, based on
forecast and actual Project operations.
a. To the extent that Offsets are available at a lower cost than Allowances
or other qualified Compliance Instruments, NCPA will use best
reasonable efforts to procure Offsets sufficient to meet eight percent
(8.00 %) of the forecast CY2013 Project Compliance Obligation. If,
after the end of CY2013, NCPA has Offsets in excess of eight percent
of the respective CY2013 Project Compliance Obligation, such excess
Offsets will be applied to CY2014 Project Compliance Obligations in
proportion to the GES of those Participants with MTA Shortfalls for
forecasted CY2014 Project Compliance Obligation.
b. If a day to day Compliance Instrument market develops, NCPA will
acquire, on a daily basis and as close in time as practicable to actual
daily Project operations, Compliance Instruments to meet any MTA
Shortfall.
c. NCPA will participate in the November 2012 CARB Allowance Auction
and attempt to obtain up to 100% of the forecast CY2013 Project
Compliance Obligation. NCPA may bid multiple quantities at various
prices, with a maximum price not to exceed 125% of the then existing
pre -Auction estimated value of Allowances as determined by NCPA
staff. NCPA will invoice Participants, as applicable, to have sufficient
procurement funds on hand at least 35 days before such Auction to
satisfy CARB's security requirements.
i. Each Participant may elect to withdraw all or a portion of its
GES of forecast CY2013 Project Compliance Obligation from
NCPA's November 2012 Auction participation activities by
giving such notice in writing to NCPA at least 45 days before the
November 2012 CARIB Allowance Auction.
ii. NCPA will accordingly adjust its November 2012 CARIB Auction
bidding activities to include only the CY2013 Project
Compliance Obligations of those Participants not giving such
notice to withdraw.
PMOA Schedule 11.00
Effective 9-28-2012.
12
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
iii. The allocation of any Compliance Instruments attained by
NCPA in the November 2012 Auction, and the associated cost
thereof, shall be in proportion to the GES of those Participants
not giving NCPA such notice to withdraw
d. Forty-five (45) days before each CARB Allowance Auction in CY2013
and the first three CARB Allowance Auctions in CY2014, NCPA will
determine, by Participant, the MTA Shortfall through the end of the
calendar month of CY2013 during which such quantity determination is
made, or all of CY2013, whichever period is shorter.
In the next immediate Auction, NCPA will bid quantities and
prices expected to obtain sufficient Allowances to meet up to
100% of the so determined MTA Shortfall of all Participants,
with a maximum price not to exceed 125% of the then existing
pre -Auction estimated value of Allowances as determined by
NCPA staff. NCPA will invoice each Participant, as applicable
and in proportion to its MTA Shortfall, to have sufficient
procurement funds on hand at least thirty-five (35) days before
such Auction to satisfy CARB's security requirements.
The allocation of any Compliance Instruments attained by
NCPA in such Auction, and the associated cost thereof, shall be
in proportion to those Participants based on then existing MTA
Shortfalls. For each Participant whose MTA Shortfall is then
satisfied, any excess funds collected in Section IV.G.d.i. above
will be refunded to the respective Participants after the
applicable Auction.
e. Forty (40) days before each Reserve Sale in CY2014, NCPA will
determine, by Participant, the MTA Shortfall through all of CY2013.
NCPA will invoice each Participant, as applicable and in proportion to
its MTA Shortfall, to have sufficient procurement funds on hand at least
thirty-five (35) days before each Reserve Sale to satisfy CARB's
security requirements. The allocation of any Compliance Instruments
attained by NCPA in each Reserve Sale as described in Sections
IV.G.e.i. — iii. below, and the associated cost thereof, shall be in
proportion to the GES of those Participants with MTA Shortfalls. For
each Participant whose MTA Shortfall is then satisfied, any excess
funds collected above will be refunded to the respective Participants
after the applicable Reserve Sale.
PMOA Schedule 11.00
Effective 9-28-2012
13
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
At the first Reserve Sale in CY2014, NCPA will bid the
applicable Tier 1 price for 33.3% of the so determined MTA
Shortfall of all Participants.
ii. At the second Reserve Sale in CY2014, NCPA will bid the
applicable Tier 2 price for 66.7% of the so determined MTA
Shortfall of all Participants.
iii. At the third Reserve Sale in CY2014, NCPA will bid the
applicable Tier 3 price for 100.0% of the so determined MTA
Shortfall of all Participants.
Pursuant to Agreement Schedule 11.00, Part III, individual Participants
may acquire and transfer Compliance Instruments to NCPA, if
administratively feasible and as allowed by AB32 Regulations, to meet
all or a portion of any then existing or forecast GES of CY2013 Project
Compliance Obligation not already attained by NCPA on behalf of such
Participant(s). Any transfers of Participant Compliance Instruments
eligible to be used for the first Compliance Period consisting of
CY2013 and CY2014 to NCPA will first be applied to meet such
Participant's GES of any unmet CY2013 Project Compliance
Obligation, with any excess Compliance Instruments applied to such
Participant's GES of any unmet Project Compliance Obligation during
the next subsequent compliance year(s). To the extent one or more
Participants transfer Compliance Instruments to NCPA for such
purposes, NCPA will allocate the Compliance Instruments and
associated costs thereof of any subsequent NCPA Compliance
Instrument procurement for CY2013 in proportion to those Participants
on whose behalf such Compliance Instruments are procured, based on
normalized GES percentages.
H. NCPA shall track by Project and Project Participant, and regularly report, as
allowed by AB32 Regulations, to the PPC the then current and remaining
forecast CY2013 Project Compliance Obligation together with quantities and
prices associated with each NCPA Compliance Instrument transaction.
V. Surrender of Compliance Instruments
A. NCPA will surrender Compliance Instruments in accordance with procedures
specified in the AB32 Regulations. NCPA will track any Participant's untimely
provision or transfer of Compliance Instruments to NCPA. In addition, NCPA
will track and allocate to the responsible Participant(s) any identifiable costs,
PMOA Schedule 11.00
Effective 9-28-2012
14
PMOA Schedule 11.00
8-14-2012
Approved by Commission 8-23-12
charges, fees, penalties, liabilities, and damages arising out of a Participant's
activities related to complying with AB32 Regulations for the Project —
including, but not limited to, a Participant's decisions, actions, or inactions to
transfer Compliance Instruments to NCPA, provide directions to NCPA, and
or to pay cash - that results in NCPA not meeting AB32 Regulations. Under
no circumstances shall NCPA or any other Participant be liable for such costs
attributable to the responsible Participant.
PMOA Schedule 11.00
Effective 9-28-2012
15
Agreement Schedule 6.00
Contact List
Northern California Power Agency
Northern California Power Agency
Attn: Kevin Cunningham, Lodi Energy Center Manager
651 Commerce Drive
Roseville, California, 95678
Telephone: (209)210-5000 x-100 or (707)295-4201
Facsimile: (209)333-5215
Email: kevin.CunninghaniL�ncpa.com
With copies to:
Northern California Power Agency
Attn: Ken Speer, Assistant General Manager — Generation Services
651 Commerce Drive
Roseville, California, 95678
Telephone: (916)781-4201 or (916)749-5691
Facsimile: (916)783-7693
Email: ken. Speer(a),ncpa.com
Northern California Power Agency
Attn: David Dockham, Assistant General Manager — Power Management
651 Commerce Drive
Roseville, California, 95678
Telephone: (916)781-4201 or (916)749-5691
Facsimile: (916)783-4252
Email: dave.dockham.Rwncya.con.1
City of Azusa
City of Azusa
Azusa Light & Water Department
Attn: George Morrow, Electric Utility Director
729 N. Azusa Avenue
P.O. Box 9500
Azusa, California 91702-9500
Telephone: (626)812-5219
Facsimile: (626)334-3163
Email: gmorrow a,ci.azusa.ca.us
Schedule 6.00
LEC Project Management and Operations Agreement
Effective 9-10-2012
Bay Area Rapid Transit District
Bay Area Rapid Transit District
Attn: Frank Schultz, Power Resources Manager
300 Lakeside Drive, 16t4 Floor
Oakland, California 94612-3534
Telephone: (510)464-6435 or (510)915-2509
Facsimile: (510)464-6118
Email: fschult(cbart.gov
Modesto Irrigation District
Modesto Irrigation District
Attn: Gregory Salyer, P.E.,
Resource Planning and Development Manager
P.O. Box 4060
1231 Eleventh Street
Modesto, California 95352
Telephone: (209)526-7550
Facsimile: (209)526-7575
Email: gregs0)mid.org
California Department of Water Resources:
Department of Water Resources
Attention: Chi Doan, Chief, Power Contracts Branch
3310 El Camino Avenue, LL90
Sacramento, California 95821
Telephone: (916) 574-0612
Facsimile: (916) 574-0660
Email: chi@water.ca.gov
Plumas-Sierra Rural Electric Cooperative
Plumas-Sierra REC
Attn: Bob Marshall, General Manager
73233 Highway 70
Portola, California 96122-7064
Telephone: (530)832-4261
Facsimile: (530)832-6070
Email: marshallPi)sln.com
2
Schedule 6.00
LEC Project Management and Operations Agreement
Effective 9-10-2012
City of Biggs
City of Biggs
Attn: Mark Sorensen, City Administrator
465 "C" Street
P.O. Box 307
Biggs, California 95917-0307
Telephone: (530)868-5493
Facsimile: (530)868-5239
Email: bi"t;sI(iDbi"gs-ca.gov
City of Gridley
City of Gridley
Attn: Rob Hickey, City Administrator
685 Kentucky Street
Gridley, California 95948-2117
Telephone: (530)846-5695
Facsimile: (530)846-3229
Email: rhick.eyo�>rg idle
City of Healdsburg
City of Healdsburg
Attn: Terry Crowley, Electric Utility Director
435 Allan Court
Healdsburg, California 95448
Telephone: (707)431-3340
Facsimile: (707)431-2710
Email: terowley(a),ci.healdsbur .ca.us
City of Lodi
City of Lodi
Attn: Elizabeth Kirkley, Utility Director
221 W. Pine Street
Lodi, California 95240
Telephone: (209)333-6828 or (209)200-1107
Facsimile: (209)333-6839
Email: ekirkley0lodielectr.ic.co.m
Schedule 6.00
LEC Project Management and Operations Agreement
Effective 9-10-2012
City of Lompoc
City of Lompoc
Attn: Marty Hostler, Assistant Utility Director
100 Civic Center Plaza
P.O. Box 8001
Lompoc, California 93438-8001
Telephone: (805)736-1261 (switchboard) or (805)736-1261
Facsimile: (805)875-8399
Email: m hostlerAcilompoc.ca.us
Silicon Valley Power
Silicon Valley Power
Attn: John Roukema, Electric Utility Director
1500 Warburton Avenue
Santa Clara, California 95050
Telephone: (408)261-5490
Facsimile: (408)249-0217
Email: iroukemacNiliconvalleypower.com
City of Ukiah
City of Ukiah
Attn: Mel Grandi, Utility Director
300 Seminary Avenue
Ukiah, California 95482
Telephone: (707)463-6295 or (209)747-0546
Facsimile: (707)463-6740
Email: m 7randi c ,cityofuki.ali.com
Power and Water Resources Pooling Authority
Power and Water Resources Pooling Authority
Attn: W. Kent Palmerton, General Manager
2106 Homewood Way, Ste 100
Carmichael, California 95608
Telephone: (916) 483-5368 or (916)813-3323
Facsimile: (916) 485-3537
Email: kentO)wkpalnaerto.n.com
Schedule 6.00
LEC Project Management and Operations Agreement
Effective 9-10-2012
4
A PUBLIC AGENCY
�NCPA
NORTHERN CALIFORNIA POWER AGENCY
651 Commerce Drive
Roseville, CA 95678
(9 16) 781-3636
www.ncpa.com
October 3, 2012
Via Federal Express
Mr. Mel Grandi
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
SUBJECT: Fully Executed First Amendment to Project Management and Operations Agreement
Dear Mr. Grandi:
Enclosed for your records please find:
1. One duplicate original of the fully executed First Amendment to the Project Management
and Operations Agreement for LEC which became effective on September 28, 2012;
2. A copy of Agreement Schedule 11 for your information which became effective upon final
execution of the Fust Amendment to the PMOA on September 28, 2012;
3. A copy of updated Agreement Schedule 6 which was approved and became effective on
August 13, 2012; and
4. A Listing of the various document components of the PMOA and the respective effective
dates which I hope you find helpful.
Thank you.
Sincerely,
LINDA A. STONE
Administrative Assistant
Generation Services
(916) 781-4248
Enc.
LEC Project Management and Operations Agreement (PMOA)
Effective 8-1-2010
8-13-2012
First Amendment to PMOA approved by PPC
Effective Date
9-28-12
Schedule No.
Description of Agreement Schedule
Effective Date
0.00
Introduction to Agreement Schedules
8-13-2012
(Serves as Index)
1.00
Scheduling and Dispatch Operations and Economic
8-13-2012
Criteria
Exhibit 1- Heat Rate Curve
Exhibit 2 - VOM
Exhibit 3 - Margin
Exhibit 4 - GenBenefit
Exhibit 5 - CAISO Settlement Charge Matrix
Exhibit 6 — Green House Gas Compliance Cost
Exhibit 7 — Three -Part Supply Bid Information
2.00
Fuel Supply Procurement, Delivery, and
2-14-2011
Management
3.00
Participant Requested Operations During Non-
To be developed
Economic Periods
at later date
4.00
Shared Facilities and Cost Sharing
9-23-2010
5.00
Project Funds **
8-1-2010
6.00
Contact List
9-10-2012
7.00
Differential Transmission Cost Adjustment
8-1-2010
8.00
Delegation of Authority
8-1-2010
9.00
LEC Project Participants and their Shares
8-1-2010
10.00
Billing and Payments
8-1-2010
Refers to Sections
17 and 18 of PSA
11.00
Management of Cap -and -Trade Program
9-28-12
Compliance *
Appendix A
General Terms and Conditions between CDWR and
8-1-2010
NCPA
* Requires NCPA Commission approval pursuant to Article 10 of PMOA.
"* Requires NCPA Commission approval for certain sections of Schedule as detailed therein.
PMOA Status
10-3-2012
las
AMENDED AND RESTATED
MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
TABLE OF CONTENTS
Section1. Definitions....................................................................................................
Section 2.
Effectiveness of Agreement..................................................................... 21
Section3.
Authority....................................................................................................
22
Section 4.
Transaction Conditions............................................................................
22
Section 5.
Transaction Instruments..........................................................................
22
Section 6.
Transaction Process and Participant Subscription to a Contract
Transaction..............................................................................................
24
Section 7.
Delivery and Receipt of a Contract Transaction ...................................
27
Section 8.
Cooperation and Further Assurances....................................................
29
Section 9.
Financial Obligations, Invoicing and Security Deposit
Administration.......................................................................................
30
Section 10.
Administration of Agreement.................................................................
43
Section 11.
Admission and Withdrawal of Participants .........................................
45
Section 12.
Term and Termination.............................................................................
48
Section 13.
Default and Remedies..............................................................................
49
Section 14.
Miscellaneous............................................................................................
55
Exhibit A.
Participant Authorization — Energy .....................................................
A-1
Exhibit B.
Participant Authorization — RECs.........................................................B-1
Exhibit C.
Participant Authorization — Resource Adequacy Capacity ..............
C-1
Exhibit D.
Participant Authorization — GHG Compliance Instruments ...........
D-1
Exhibit E.
NCPA Commision-Approved Master Agreements ............................E-1
Exhibit F.
NCPA Commission -Approved Bilateral Agreements ........................F-1
Exhibit G.
NCPA Commission -Approved Exchanges .........................................
G-1
Exhibit H.
NCPA Commission -Approved Auctions...........................................H-1
Exhibit I.
NCPA Commission -Approved Brokers................................................1-1
Exhibit J.
Irrevocable Letter of Direction................................................................J-1
1834887.5 i
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
This AMENDED AND RESTATED MARKET PURCHASE PROGRAM
AGREEMENT ("the Agreement") is made effective as of � `- 10 d (Z ("the
Effective Date"), by and among the Northern California Power Agency, a joint
powers agency of the State of California ("NCPA") and those of its Members
who execute this Agreement ("Participants"). NCPA and the Participants are
referred to herein individually as a "Party" and collectively as the "Parties"
RECITALS
A. NCPA and the Participants desire to amend the Market Purchase
Program Agreement made effective August 1, 2007, by and among NCPA and
the Market Purchase Program Participants, to enable NCPA, on behalf of the
Participants, to engage in Contract Transactions to purchase and sell Energy,
Resource Adequacy Capacity, RECs, GHG Compliance Instruments and Physical
Option Products, for the benefit of the Participants' customers.
B. This Agreement is made to amend the Market Purchase Program
Agreement, and to enable NCPA to transact in Approved Products identified in
the Energy Risk and Counterparty Risk Management Regulations, on behalf of
the Participants in accordance with the terms and conditions contained herein.
C. The Participants, through Contract Transactions authorized by this
Agreement, seek to assure greater rate and budget stability by: (i) reducing the
proportion of Energy that Participants need to acquire in a potentially volatile
1834887.5
1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
spot market; (ii) transacting in bundled and unbundled RECs to manage
Participants' renewable energy portfolios; (iii) satisfying applicable resource
adequacy requirements more efficiently; and (iv) satisfying applicable GHG
emission compliance obligations more efficiently.
D. The Participants desire that NCPA negotiate and enter into
Contract Transactions with creditworthy counterparties to allow Participants to
diversify their counterparty risk by subscribing to a more diverse portfolio of
Contract Transactions than if each individually selected a single market
counterparty.
E. The Participants recognize that several factors, including but not
limited to, evaluation of counterparty risk, operational risk, price, and liquidity
requirements, may be relevant to the decision of whether to enter into any
Contract Transaction, including whether to use bundled or unbundled REC
Transactions to accomplish individual Participant's renewable portfolio goals.
F. The Participants further desire to enable and obligate NCPA to
conduct the foregoing activities, and to enable and obligate the Participants to
deliver, take delivery of, and pay for Approved Products, and to pay NCPA for
the costs of undertaking the foregoing activities.
G. The Parties further desire, insofar as possible, to insulate other
Participants from the risks inherent in the transactions undertaken by any given
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Participant, and to insulate non -Participant Members and NCPA from the risks
undertaken by the Participants.
NOW THEREFORE, in consideration of the foregoing, the Parties agree
and intend to be legally bound as follows:
Section 1. Definitions.
1.1 Definitions. Whenever used in this Agreement (including the
Recitals hereto), the following terms shall have the following respective
meanings:
1.1.1 "Adjusting Participant" means a Participant who has
agreed to assume all or a portion of a Withdrawing Participant's Subscription
Percentage in one or more Contract Transactions, as set forth in Section 11.2.1.
1.1.2 "Agreement" means this Amended and Restated Market
Purchase Program Agreement, including all Exhibits attached hereto, as each
may be amended from time to time in accordance with the terms and
conditions hereof.
1.1.3 "All Resources Bill" means the single, combined monthly
bill from NCPA to a Participant with respect to all NCPA programs and
projects, as such may be amended from time to time.
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1.1.4 "Allocating Participant" means a Participant who has
formally elected and agreed to allocate all or a portion of its then existing
Subscription Percentage share in one or more Contract Transactions to an
existing or new Participant as set forth in Section 11.1.
1.1.5 "Annual Budget" means a NCPA budget for a specific
Fiscal Year as adopted by the Commission, as it may be amended from time
to time.
1.1.6 "Approved Products" means Energy, Resource
Adequacy Capacity, RECs, GHG Compliance Instruments and Physical
Option Products indentified as such in the Energy Risk and Counterparty
Risk Management Regulations.
NCPA.
1.1.7 "Associate Member" means an associate member of
1.1.8 "Auction" shall mean those Commission -approved
auctions set forth in Exhibit G.
District.
1.1.9 "BART" means the San Francisco Bay Area Rapid Transit
1.1.10 'Bilateral Agreement" means an agreement used to
purchase and sell Approved Products, entered into by NCPA with Third
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Parties or among Participants. A Bilateral Agreement shall be in a form
approved by the Commission.
1.1.11 "Business Day' means any day except a Saturday,
Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at
8:00 a.m. and close at 5:00 p.m. local time.
1.1.12 "Bundled REC" means a REC procured or sold together
with Energy as a "bundled" commodity.
1.1.13 "Broker" shall mean those Commission -approved
brokers set forth in Exhibit H.
1.1.14 "Cap and Trade Program" means: (i) CARB's Regulation
for the California Cap on Greenhouse Gas Emissions and Market -Based
Compliance Mechanisms as set forth in title 17, California Code of
Regulations, chapter 1, subchapter 10, article 5 (commencing with section
95800), as such may be amended from time to time, or (ii) other GHG
compliance obligations, including but not limited to, federal, regional, state,
or local jurisdictions.
1.1.15 "CARB" means the California Air Resources Board, or
its successor organization.
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.16 "CARB Offset Credit" means a tradable compliance
instrument issued by CARB that represents a GHG reduction or GHG
removal enhancement of one metric ton of CO2.
1.1.17 "Claims" has the meaning set forth in Section 14.2.
1.1.18 "Commission" means the NCPA Commission.
1.1.19 "Commodity Costs" means the costs billed to NCPA by a
Third Party or Participant for an Approved Product acquired pursuant to a
Contract Transaction.
1.1.20 "Commodity Revenues" means the payments rendered
to NCPA by a Third Party or Participant for an Approved Product sold by
NCPA pursuant to a Contract Transaction.
1.1.21 "Constitutive Documents" means, with respect to NCPA,
the Joint Exercise of Power Act (Cal. Govt. Code § 6500 et seq.), the Joint
Powers Agreement and any resolutions adopted thereunder, and the NCPA
Rules of Procedure, and with respect to each Participant, the California
Government Code and other statutory provisions applicable to such
Participant, any applicable agreements, charters, contracts or other
documents concerning the formation, operation or decision making of such
Participant, including, if applicable, its City Charter, and any codes,
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ordinances, bylaws, and resolutions adopted by such Participant's governing
body.
1.1.22 "Contract Price" means, with respect to any Contract
Transaction under this Agreement, the price per MWh, price per MW, price
per REC, price per metric ton of carbon dioxide equivalent, and/or a
combination of such per unit prices listed in the applicable Transaction
Confirmation.
1.1.23 "Contract Transaction" means a purchase or sale of
Approved Products involving a Third Party or Participant that satisfies the
Transaction Conditions, and has been approved by each involved Party
through use of a Participant Authorization in accordance with Section 6 of
this Agreement.
1.1.24 "Deal Capture System" means NCPA's internal database
that includes all of the MPP transactions and related details, such as
scheduling, payments, price, delivery dates, Participant Subscription
Percentage and the counterparties.
13.1.
1.1.25 "Defaulting Party" has the meaning set forth in Section
1.1.26 "Designated Representatives" means with respect to
NCPA, its General Manager; and with respect to each Participant, its Utility
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Director (an employee other than the Utility Director may be designated by
resolution of the Participant's governing body).
1.1.27 "Effective Date" means the later of: (i) the date set forth
in the preamble of this Agreement; or (ii) the date this Agreement is executed
by all of the Participants.
1.1.28 "Electric System" means, with respect to each Participant
except BART and the Port of Oakland, all properties and assets, real and
personal, tangible and intangible, of the Participant now or hereafter existing,
used or pertaining to the generation for resale, transmission, transformation,
distribution or sale of electric capacity and energy, or the utilization of such,
including all additions, extensions, expansions, improvements and
betterments thereto and equipment thereof; provided, however, that to the
extent the Participant 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 Participant'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. Should BART become a
Participant under this Agreement, Electric System, with reference to BART
shall mean its rail transit system. Should the Port of Oakland become a
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Participant under this Agreement, Electric System, with reference to the Port
of Oakland shall mean the Port of Oakland.
1.1.29 "Emissions Allowance" means a limited tradable
authorization to emit up to one metric ton of carbon dioxide equivalent.
1.1.30 "Energy" means the generation or use of electric power
over a period of time, usually expressed in megawatt hours, kilowatt hours or
gigawatt hours.
1.1.31 "Energy Risk and Counterparty Risk Management
Regulations" means that certain NCPA Energy Risk and Counterparty Risk
Management Regulations, version 1.5, approved May 6, 2011, as the same
may be amended from time to time.
1.1.32 "Energy Risk Management Policy" means that certain
NCPA Energy Risk Management Policy, version 1.3, approved June 16, 2011,
as the same may be amended from time to time.
1.1.33 "Environmental Attributes" means any and all credits,
benefits, emissions reductions, offsets, and allowances, howsoever entitled,
directly attributable to the market transaction hereunder. Environmental
Attributes include but are not limited to: (1) any avoided emissions of
pollutants to the air, soil or water such as sulfur oxides ("SOx"), nitrogen
oxides ("NOx"), carbon monoxide ("CO") and other pollutants; (2) any
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
avoided emissions of carbon dioxide ("CO2"), methane ("CH4') and other
greenhouse gases ("GHGs") that have been determined by the United
Nations Intergovernmental Panel on Climate Change to contribute to the
actual or potential threat of altering the Earth's climate by trapping heat in
the atmosphere; and (3) the reporting rights to these avoided emissions such
as green tag reporting rights. Environmental Attributes do not include: (1)
any energy, capacity, reliability or other power attributes; (2) production tax
credits associated with the construction or operation of the energy projects
and other financial incentives in the form of credits, reductions, or allowances
associated with the project that are applicable to a state or federal income
taxation obligation: (3) fuel -related subsidies or "tipping fees" that may be
paid to seller to accept certain fuels, or local subsidies received by the
generator for the destruction of particular pre-existing pollutants or the
promotion of local environmental benefits; (4) emission reduction credits
encumbered or used by the unit(s) for compliance with local, state, or federal
operating and/or air quality permits; and (5) RECs.
1.1.34 "Event of Default" has the meaning set forth in Section
9.7.3 and Section 13.1.
1.1.35 "Exchange" means a Commission -approved organized
market on which transactions relating to Approved Products, in the form of
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
standardized contracts, may be entered into. Examples of Exchanges include
the New York Mercantile Exchange ("NYMEX") and the Intercontinental
Exchange ("ICE")
1.1.36 "Fiscal Year" means the NCPA fiscal year; currently the
twelve month period beginning July 1 and ending on the next following June
30.
1.1.37 "Fixed MPP Costs" means those costs deemed to be
incurred by NCPA regardless of whether NCPA transacts with Third Parties
or Participants under this Agreement, including start-up costs and attorneys'
fees.
1.1.38 "General Operating Reserve" means the NCPA General
Operating Reserve created through resolution of the Commission, as the
same may be amended from time to time.
1.1.39 "Greenhouse Gas" or "GHG" includes, but is not limited
to, carbon dioxide ("CO2"), methane ("CH4'), nitrous oxide ("N20"), sulfur
hexafluoride ("SF6"), hydrofluorocarbons ("HFCs"), perfluorocarbons
("PFCs"), and other fluorinated gasses.
1.1.40 "GHG Compliance Instrument" means any instrument,
including but not limited to, Emission Allowance, CARB Offset Credit or
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Sector -Based Offset Credit that can be used to fulfill a GHG emissions
compliance obligation.
1.1.41 "Initial Term' has the meaning set forth in Section 12 of
this Agreement.
1.1.42 "Joint Powers Agreement" means that certain Amended
and Restated Northern California Power Agency Joint Power Agreement
dated as of January 1, 2008, as the same may be amended from time to time.
1.1.43 "Mandatory Reporting Regulation" or "MRR" means
CARB's Regulation for the Mandatory Reporting of Greenhouse Gas
Emissions as set forth in title 17, California Code of Regulations, chapter 1,
subchapter 10, article 2 (commencing with section 95100), as such may be
amended from time to time.
1.1.44 "Master Agreement" means a Commission -approved
agreement used to purchase and sell Approved Products, entered into by
NCPA with Third Parties. A Master Agreement shall be in the form of a
standardized industry agreement, with such modifications as have been
approved by the Commission, provided that, in any particular instance, a
Master Agreement may be modified in the discretion of the NCPA General
Manager and NCPA General Counsel, after consultation with the
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Participants, where such modifications are reasonably required in order to
consummate the Master Agreement or to transact under the MPP.
1.1.45 "Maximum Contract Price" means the applicable lawful
ceiling price for Approved Products at the time a Contract Transaction is
consummated.
NCPA.
1.1.46 "Member" means any Member or Associate Member of
1.1.47 "MW" means megawatt.
1.1.48 "MWh" means megawatt hour.
1.1.49 "MPP" or "Market Purchase Program" means the NCPA
Market Purchase Program established by this Agreement, consisting of all
Contract Transactions hereunder and all Participants hereto as program
Participants.
1.1.50 "MPP Costs" are all Fixed MPP Costs and Variable MPP
Costs (each including administrative and general overhead costs), other than
Transaction Specific Costs and Commodity Costs associated with the MPP.
hereto.
1834887.5
1.1.51 "NCPA" has the meaning set forth in the preamble
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.52 "NCPA Rules of Procedure" means the Rules of
Procedure for the Northern California Power Agency, sometime referred to as
the "NCPA By-laws", as such may be amended from time to time.
1.1.53 "Participant" means a Member of NCPA who has
executed this Agreement as set forth herein.
1.1.54 "Participant Authorization" means a Participant's
written and properly executed authorization of a Contract Transaction, in the
form of Exhibit A, Exhibit B, or Exhibit C.
1.1.55 "Party" or "Parties" has the meaning set forth in the
preamble hereto; provided that "Third Parties" are entities that are not party
to this Agreement.
1.1.56 "Physical Call Option" means a contract that offers a
buyer the right, but not the obligation, to buy a quantity of Energy to be
delivered at a predetermined price.
1.1.57 "Physical Collar Transaction" means a transaction
strategy used to mitigate the risk of market price volatility, consummated
through the purchase of a Physical Call Option and the sale of a Physical Put
Option, for the same term and quantity, to effectuate a ceiling and floor price
for Energy transactions.
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.58 "Physical Option Products" means a Physical Call
Option or Physical Collar Transaction for Energy that is entered into to
stabilize the costs of Energy for one or more Participants.
1.1.59 "Physical Put Option" means a contract that offers a
seller the right, but not the obligation, to sell a quantity of Energy to be
delivered at a predetermined price.
1.1.60 "Port of Oakland" means the City of Oakland, acting by
and through its Board of Port Commissioners.
1.1.61 "Principal Counsel" means with respect to NCPA, its
General Counsel, and with respect to each Participant, its City Attorney or
General Counsel.
1.1.62 "Procure" or "Purchase" and other forms of such verbs,
including Procurement, Procuring, Procured, Purchasing and Purchased
means acquiring Approved Products through Contract Transactions with
Third Parties or Participants.
1.1.63 "Renewable Energy Certificate" or "REC" means a
certificate of renewable energy generation from units that register in the
WREGIS system, or other commonly accepted renewable energy generation
tracking system or program, which can be used to verify compliance with
state and provincial regulatory requirements such as Renewable Portfolio
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Standards. A REC may or may not include associated Environmental
Attributes as specified in a Contract Transaction.
1.1.64 "Renewable Portfolio Standard" or "RPS" means the
California Renewable Energy Resources Act, SB 2 (1X) (Simitian, Chapter 1,
Statutes of 2011, First Extraordinary Session), as may be amended from time
to time.
1.1.65 "Replacement Commodity Costs" means the costs billed
to NCPA by a Third Party or Participant for an Approved Product acquired
by NCPA as an alternative supply of Approved Product in order to complete
a Contract Transaction.
1.1.66 "Resource Adequacy Capacity" is that capacity in MW
that has been approved by each Participant, acting as a local regulatory
authority, as capacity available to ensure that adequate resources are
available to meet peak demand and planning reserves for the purposes of
local area and system reliability.
1.1.67 "Revenues" means with respect to each Participant other
than BART, all income, rents, rates, fees, charges and other revenues derived
by the Participant from the ownership or operation of its Electric System,
including, without limiting the generality of the foregoing: (a) all income,
rents, rates, fees, charges or other moneys derived from the sale, furnishing
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
and supplying of electric capacity and energy and other services, facilities,
and commodities sold, furnished, or supplied through the facilities of its
Electric System; (b) the earnings on and income derived from the investment
of such income, rents, rates, fees, charges or other moneys to the extent that
the use of such earnings and income is limited by or pursuant to law to its
Electric System; and (c) the proceeds derived by the Participant 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 (i) customers'
deposits or any other deposits subject to refund until such deposits have
become the property of the Participant; or (ii) contributions from customers
for the payment of costs and construction of facilities to serve them. Should
BART become a Participant, with reference to BART, Revenues means, all
income, rents, rates, fees, charges, grants, fares or tariffs, subventions and
other moneys derived from its operations including, without limiting the
generality of the foregoing, (i) the earnings on and income derived from the
investment of such income, rents, rates, fees, charges, grants, fares or tariffs,
subventions or other moneys and (ii) the proceeds derived directly or
indirectly from the sale, lease or other disposition of all or a part of its assets,
but the term Revenues shall not include any moneys derived from sources the
use of which is limited by law to expenditures other than operating expenses.
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.68 "Request for Proposal" or "RFP" means the issuance of a
request for offers and or bids to purchase or sell Approved Products.
1.1.69 "Scheduling Protocols" means the applicable provisions
of the Scheduling Coordinator Program Agreement and any other contractual
or other arrangements between NCPA and the relevant Participant
concerning the scheduling, delivery and metering of a Contract Transaction
approved by the Parties.
1.1.70 "Sector -Based Offset Credit" means a credit issued from
a sector -based crediting program once the crediting baseline for a sector has
been reached.
1.1.71 "Security Deposit" means funds deposited by
Participants with NCPA that are irrevocably committed and held in the
General Operating Reserve in accordance with Section 9.4. Such funds are
available for use by NCPA in accordance with the terms and conditions
hereof.
1.1.72 "Sale" or "Sell" and other forms of such verb, including
Selling and Sold, means to transfer Approved Products through Contract
Transactions to Third Parties or Participants.
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1.1.73 "Subscription Percentage" means that proportion of a
Contract Transaction that a Participant subscribes to through a Participant
Authorization, in accordance with the terms of this Agreement.
Section 4.
1.1.74 "Term" has the meaning set forth in Section 12.
1.1.75 "Transaction Conditions" has the meaning set forth in
1.1.76 "Transaction Confirmation" has the meaning given to it
in the Master Agreement used to transact Approved Products through a
Contract Transaction.
Section 5.
1.1.77 "Transaction Instrument" has the meaning set forth in
1.1.78 "Transaction Specific Costs" means any and all costs,
except for Commodity Costs, directly or indirectly incurred by NCPA arising
due to the execution of a Contract Transaction. Transaction -Specific Costs
include, but are not limited to, termination payments, counterparty requests
for assurances, related legal fees, option premiums and associated staff time.
1.1.79 "Unbundled REC" means a REC procured or sold as a
separate commodity, apart from the underlying renewable Energy that was
generated to create the REC.
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.80 "Utility Director' means the most senior employee of a
Participant with authority and duty to direct, manage, and control operations
of the Participant's electric utility; or, if the Participant does not have an
electric utility, the most senior employee with authority and duty to direct,
manage, and control acquisition and use of electric power on behalf of that
Participant.
1.1.81 "Variable MPP Costs" are those costs that are common to
all Participants under this Agreement but are expected to vary with the size
and scope of the MPP established under this Agreement, including NCPA
staff time.
1.1.82 "WECC" means the Western Electricity Coordinating
Council, or its successor organization.
1.1.83 "Withdrawing Participant" means a Participant that has
withdrawn from the Agreement as set forth in Section 11.2.1.
1.1.84 "WREGIS" means the Western Renewable Energy
Generation Information System which is the independent, renewable energy
tracking system for the region covered by WECC, established by the
California Energy Commission pursuant to Section 399.25 of the California
Public Utilities Code, as the same may be amended from time to time.
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1.2 Rules of Interpretation. As used in this Agreement (including the
Recitals hereto), unless in any such case the context requires otherwise: the terms
"herein," "hereto," "herewith" and "hereof" are references to this Agreement
taken as a whole and not to any particular provision; the term "include,"
"includes" or "including" shall mean "including, for example and without
limitation;" and references to a "Section," "subsection,"' "clause," or "Exhibit"
shall mean a Section, subsection, clause or Exhibit of this Agreement, as the case
may be. All references to a given agreement, instrument or other document shall
be a reference to that agreement, instrument or other document as modified,
amended, supplemented and restated through the date as of which such
reference is made, and reference to a law, regulation or ordinance includes any
amendment or modification thereof. A reference to a "person" includes any
individual, partnership, firm, company, corporation, joint venture, trust,
association, organization or other entity, in each case whether or not having a
separate legal personality and includes its successors and permitted assigns. The
singular shall include the plural and the masculine shall include the feminine,
and vice versa.
Section 2. Effectiveness of Agreement. This Agreement shall be in force as to
each Participant on the first day of the month following the Effective Date,
subject to the provisions for new Participants in Section 11.1 below.
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Section 3. Authority. NCPA has the authority to purchase and sell Approved
Products using Contract Transactions in accordance with the terms of this
Agreement. Participants shall have the authority to subscribe to Contract
Transactions pursuant to the terms and conditions set forth in this Agreement.
Section 4. Transaction Conditions. All Contract Transactions consummated
in accordance with this Agreement shall satisfy the following conditions
("Transaction Conditions"):
4.1.1 Contract Transactions shall be made in accordance with
all requirements and conditions set forth in NCPA's Energy Risk
Management Policy and Energy Risk and Counterparty Risk Management
Regulations, including, but not limited to, those limiting the term and volume
of Contract Transactions; and
4.1.2 Contract Transactions shall be limited to those Approved
Products listed in NCPA's Energy Risk Management Policy and Energy Risk
and Counterparty Risk Management Regulations; and
4.1.3 The Contract Price for a Contract Transaction shall not
exceed the Maximum Contract Price for the relevant product.
Section 5. Transaction Instruments.
5.1 NCPA shall negotiate and enter into all necessary agreements and
related or incidental documents required to consummate a Contract Transaction;
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
provided, however, that all Contract Transactions undertaken by NCPA
pursuant to this Agreement may only be initiated using one or more of the
following Commission -approved instruments ("Transaction Instruments"):
5.1.1 Contract Transactions may be initiated through the use of
a Commission -approved Master Agreement. Commission -approved Master
Agreements are listed in Exhibit D.
5.1.2 Contract Transactions may be initiated through the use of
a Commission -approved Bilateral Agreement. Commission -approved
Bilateral Agreements are listed in Exhibit E.
5.1.3 Contract Transactions may be initiated through the use of
a Commission -approved Exchange. Commission -approved Exchanges are
listed in Exhibit F.
5.1.4 Contract Transactions may be initiated through the use of
a Commission -approved Auction.
The relevant Exhibits of the Agreement shall be amended from time to
time to reflect the addition of and removal of Commission -approved Transaction
Instruments in accordance with Section 14.5.2.
5.2 Amendments to Transaction Instruments. The Commission -
approved Master Agreements and Commission -approved Bilateral Agreements
utilized to consummate Contract Transactions may, in any given instance, be
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
modified in the discretion of the NCPA General Manager and NCPA General
Counsel, after consultation with the Participants, to include additional terms and
conditions approved by the Parties' Designated Representative and approved as
to form, procedure and authorization by the Parties' Principal Counsel, or to
delete previously approved Commission modifications to the form of the Master
Agreement(s) and Bilateral Agreement(s), where such modifications are
reasonably required in order to transact under the MPP.
Section 6. Transaction Process and Participant Subscription to a Contract
Transaction. From time -to -time, NCPA may propose that one or more
Participants subscribe to a Contract Transaction, or one or more Participants may
request NCPA to initiate a Contract Transaction in accordance with the terms
and conditions of the Agreement. All Contract Transactions undertaken
pursuant to the Agreement shall be initiated: (i) through the use of a Request for
Proposal initiated by NCPA, or in response to a Request for Proposal initiated by
a Third Party or Participant, (ii) through use of direct and/or bilateral
negotiations with a Third Party or Participant, or (iii) on a Commission approved
Exchange or Auction. At NCPA's sole discretion, a Contract Transaction may be
centrally cleared or entered into through the use of a Broker.
6.1 Contract Transaction Subscription Process. To initiate a Contract
Transaction NCPA shall deliver a Participant Authorization for the proposed
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Contract Transaction to each Participant who is seeking to transact Approved
Products. Each such Participant Authorization shall be substantially in the form
of Exhibit A, B or C, as applicable, and shall specify, among other things, the
quantity and price (or not -to -exceed price) for the Approved Product(s)
contemplated to be consummated through a Contract Transaction. Each
Participant shall promptly review such proposed Participant Authorization, and
upon such review may elect to subscribe to a Contract Transaction by delivering
an executed Participant Authorization to NCPA.
6.2 NCPA Obligations. Upon receipt of a duly executed Participant
Authorization, NCPA shall use reasonable efforts to attempt to consummate a
Contract Transaction through use of a corresponding Transaction Instrument, as
specified in a Participant Authorization, on behalf of one or more Participants;
provided, however, that NCPA shall not enter into a Contract Transaction for
any Participant that: (i) has failed to maintain sufficient Security Deposits as
required by Section 9.4, (ii) is otherwise in default under the terms of this
Agreement, or (iii) has not met the Transaction Conditions set forth in Section 4
of this Agreement.
Upon consummation of a Contract Transaction, NCPA shall notify and
report the transaction results to each Participant that has a Subscription
Percentage in said Contract Transaction.
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
6.3 Participant Obligations. By executing this Agreement, each
Participant acknowledges and agrees to be bound by their Designated
Representatives' execution and Principal Counsel's approval as to form,
procedure and authorization of a Participant Authorization substantially in the
form of Exhibit A, B, or C hereto, as applicable, for each corresponding Contract
Transaction. Each Participant also: (i) acknowledges and approves the terms of
the corresponding Transaction Instrument(s) utilized by NCPA to consummate a
Contract Transaction, and agrees to take any and all actions necessary for NCPA
to comply in a timely manner with any terms and conditions of said Transaction
Instrument(s), (ii) agrees to pay for and take delivery of its Subscription
Percentage share, or to take receipt of payment for and deliver its Subscription
Percentage share of Approved Products, and (iii) agrees to pay its Subscription
Percentage share of all fees, costs, or other amounts payable in connection with
the execution, arrangement, maintenance, and termination or liquidation of
Contract Transactions.
6.4 Subscription Percentages. The Subscription Percentages of each
Participant for each Contract Transaction shall be maintained in NCPA's Deal
Capture System, and summary reports therefrom will be provided to
Participants upon request.
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Section 7. Delivery and Receipt of a Contract Transaction. Approved
Products shall be delivered to or collected from Participants in accordance with
each Participant's Subscription Percentage of a Contract Transaction.
7.1 Deliveries to Participants. Any Approved Products delivered to
NCPA from a Contract Transaction shall be delivered to each Participant in
proportion to such Participant's Subscription Percentage, and each Participant
shall accept and pay for its Subscription Percentage share of such Contract
Transaction.
7.2 Delivery from Participants. Any Approved Products delivered by
NCPA to a Third Party from a Contract Transaction shall be supplied by each
Participant in proportion to such Participant's Subscription Percentage, and each
Participant shall accept payment for its Subscription Percentage share of such
Contract Transaction.
7.3 Failure to Take Delivery or Deliver. To the extent a Participant is
unable to accept delivery of any Approved Products in full, or a Participant is
unable to make delivery of any Approved Products in full, NCPA shall either: (i)
dispose of such surplus Approved Products, in its sole discretion, in such a
manner as to attempt to maximize Participant value, or (ii) purchase an
alternative supply of equivalent Approved Products, in its sole discretion, in
such a manner as to attempt to minimize Participant cost, in order to complete
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full delivery of the Contract Transaction, or terminate the Contract Transaction
with respect to that Participant. If a Participant fails to deliver Approved
Products to NCPA, NCPA, in its sole discretion, may seek to purchase an
alternative supply of Approved Products to deliver Participant's relevant supply
obligation in full under the Contract Transaction, in such a manner as to attempt
to minimize Participant cost. A Participant that fails to deliver Approved
Products to NCPA in accordance with its Subscription Percentage shall be
responsible for all costs incurred by NCPA in connection with Approved
Products replacement, or Contract Transaction termination, including any
associated Replacement Commodity Costs. If a Participant fails to provide
NCPA with Approved Products in accordance with its Subscription Percentage,
and NCPA is unable to purchase an equivalent alternative supply of Approved
Products to deliver Participant's relevant supply obligations in full under the
Contract Transaction, or otherwise terminates the Contract Transaction, all
damages assessed to NCPA that are attributed to Participant's failure to deliver
the Approved Product will be charged to and paid by that Participant.
7.4 Scheduling. Contract Transactions shall be scheduled for the
Participants in accordance with the Scheduling Protocols.
7.5 REC Transfers. Transferring RECs as required pursuant to a
Contract Transaction made in accordance with the Agreement shall be
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performed in accordance with: (i) the rules and procedures established by
WREGIS, or (ii) the rules and procedures adopted by other commonly accepted
renewable energy generation tracking systems or programs, as applicable.
7.6 GHG Compliance Instrument Transfers. Transferring GHG
Compliance Instruments as required pursuant to a Contract Transaction made in
accordance with the Agreement shall be performed in accordance with: (i) the
Cap and Trade Program, (ii) the Mandatory Reporting Regulations, or (iii) the
rules and procedures adopted by other commonly accepted GHG Compliance
Instrument tracking systems or programs, as applicable.
Section 8. Cooperation and Further Assurances. Each of the Parties agree to
provide such information, execute and deliver any instruments and documents
and to take such other actions as may be necessary or reasonably requested by
any other Party which are not inconsistent with the provisions of this Agreement
and which do not involve the assumption of obligations other than those
provided for in this Agreement, in order to give full effect to this Agreement and
to carry out the intent of this Agreement. Further, the Parties agree to cooperate
and act in good faith in connection with obtaining any credit support required in
order to transact in an Approved Product using a Contract Transaction,
including with respect to negotiating and executing any agreements to
implement any credit support arrangements.
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Section 9. Financial Obligations, Invoicing and Security Deposit
Administration.
9.1 Participant Payment Obligations. Each Participant agrees to pay to
NCPA each month the sum of the following:
9.1.1 Estimated Fixed MPP Costs of $900 (estimated Fixed
MPP Costs may be adjusted each Fiscal Year, as approved by the
Commission, during the Annual Budget process); and
9.1.2 One -twelfth (1/12) of Participant's allocated share of
estimated Variable MPP Costs for the Fiscal Year as determined in Section 9.2;
and
9.1.3 Transaction Specific Costs for each Contract Transaction
in accordance with Participant's Subscription Percentage share; and
9.1.4 Commodity Costs for each Contract Transaction in
accordance with Participant's Subscription Percentage share.
In addition to the aforementioned monthly payment obligations, each
Participant is obligated to fund: (i) any and all required Security Deposits
calculated in accordance with Section 9.4, and (ii) the working capital
requirement for the Market Purchase Program maintained by NCPA as set forth
in the Annual Budget.
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9.2 Calculation of Variable MPP Costs. Participants' payment
obligations for Variable MPP Costs under Section 9.1 shall be calculated as
follows. For each Fiscal Year, NCPA shall estimate the total Variable MPP Costs
to be incurred under this Agreement. A share of the estimated total Variable
MPP Costs will be allocated to each Participant based on each Participant's
proportionate share of the total Participants' Contract Transaction volumes for
all Approved Products forecasted to be transacted during the Fiscal Year, as
estimated by NCPA in its sole discretion.
9.3 True -Up of Budgeted vs. Actual Fixed MPP Costs and Variable
MPP Costs. Upon the conclusion of each Fiscal Year, NCPA, as part of its
Annual Budget settlement process, shall compare each Participant's payment of
estimated Fixed MPP Costs and Variable MPP Costs during the Fiscal Year with
actual Fixed MPP Costs and Variable MPP Costs incurred on behalf of
Participant. Overpayments and/or underpayments of Fixed MPP Costs and
Variable MPP Costs will be credited and/or debited to Participants as directed by
the Commission in the Annual Budget settlement process.
9.4 Security Deposit Requirements. Each Participant agrees that any
funds deposited at NCPA to satisfy Participant's Security Deposit requirements
pursuant to this Agreement shall be irrevocably committed and held by NCPA in
the General Operating Reserve, and that such funds may be used by NCPA in
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accordance with Section 9.4.4. Each Participant's Security Deposit will be
accounted separately from and in addition to any other security accounts or
deposits maintained pursuant to any other agreement between NCPA and the
Participant, or any other such security account or deposits required of Members.
In connection with fulfilling the Security Deposit requirements of this
Agreement, Participant may elect to use its uncommitted funds held in the
General Operating Reserve to satisfy in whole or in part its Security Deposit
required under Section 9.4. If Participant chooses to satisfy in whole or in part its
security requirements using its uncommitted funds held in the General
Operating Reserve, Participant is required to execute and deliver to NCPA an
Irrevocable Letter of Direction, as set forth in Exhibit I, directing NCPA to utilize
Participant's uncommitted General Operating Reserve funds for such purposes,
and the designated funds will thereafter be irrevocably committed and held by
NCPA to satisfy the requirements of this Agreement.
9.4.1 Initial Amounts. Prior to subscribing to a Contract
Transaction a Participant shall insure that sufficient Security Deposit funds
have been deposited with and are held by NCPA equal to the highest three
(3) months of estimated Commodity Costs for all Contract Transactions in
which Participant has or will subscribe to purchase Approved Products, as
estimated by NCPA. Such Security Deposit requirement may be satisfied by
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Participant in whole or part either in cash, through irrevocable commitment
of its uncommitted funds held in the General Operating Reserve in
accordance with Section 9.4, or through a clean, irrevocable letter of credit
satisfactory to NCPA's General Manager. Commodity Revenues resulting
from a Contract Transaction may not be counted against or netted with a
Participant's Security Deposit requirements; hence Commodity Revenues
may not be used in lieu of Security Deposit funds, or a letter of credit, to
reduce a Participant's obligations under Section 9.4 of this Agreement.
9.4.2 Additional Security Deposit Amounts. In addition to a
Security Deposit amount equal to the highest three (3) months of estimated
Commodity Costs for all Contract Transactions in which Participant has or
will subscribe, incremental funds may be required from a Participant to
commence a transaction, satisfy a margin call or terminate and liquidate a
Contract Transaction. Prior to executing a Contract Transaction, NCPA's
Chief Financial Officer, or designee, will notify each subscribing Participant
of the necessary incremental Security Deposit amount to be funded and
deposited with NCPA by inserting such amount in the relevant portion of the
Participant Authorization.
9.4.3 Subsequent Deposits. Periodically, and at least quarterly,
NCPA shall review and revise its estimate of all costs for which Participant
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shall be obligated to pay under this Agreement. Following such review,
NCPA shall determine whether each Participant has a sufficient Security
Deposit balance at NCPA. To the extent that any Participant's Security
Deposit balance is greater than one hundred and ten percent (110%) of the
amount required herein, NCPA shall credit such amount as soon as
practicable to the Participant's next following All Resources Bill, or by
separate special invoice. To the extent that any Participant's Security Deposit
balance is less than ninety percent (90%) of the amount required herein,
NCPA shall add such amount as soon as practicable to such Participant's next
All Resources Bill, or as necessary, to a special invoice to be paid by
Participant upon receipt. Credits or additions shall not be made to
Participants who satisfy these Security Deposit requirements in whole
through the use of a letter of credit, provided that the amount of the letter of
credit shall be adjusted, as required from time to time, in a like manner to
assure an amount equal to the highest three (3) months of estimated
Commodity Costs is available to NCPA.
9.4.4 Use of Security Deposit Funds. NCPA may use any and
all Security Deposit funds held by NCPA (or utilize a letter of credit provided
in lieu thereof) to pay any costs it incurs hereunder, including making
payments to counterparties under any Transaction Instrument used to
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consummate a Contract Transaction, replacing Approved Products not
delivered by a Participant that subscribes to a Contract Transaction, or for
termination payments, requests for assurances by Third Parties, credit
support, and related expenses incurred pursuant to a Contract Transaction,
without regard to any individual Participant's Security Deposit balance or
proportionate share of MPP Costs, and irrespective of whether NCPA has
issued an All Resources Bill or special invoice for such costs to the
Participants or whether a Participant has made timely payments of All
Resources Bills or special invoices. Should Participant have satisfied its
Security Deposit requirements in whole or part through a letter of credit,
NCPA may draw on such letter of credit to satisfy Participant's obligations
hereunder at NCPA's sole discretion.
9.4.5 Accounting. If Security Deposit funds or a letter of credit
are used by NCPA to pay any costs it incurs hereunder as described in
Section 9.4.4, NCPA will maintain a detailed accounting of each Participant's
shares of funds withdrawn, and upon the collection of all or a part of such
withdrawn funds, NCPA will credit back to each non -defaulting Participant
the funds collected in proportion to such non -defaulting Participant's share of
funds initially withdrawn.
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9.4.6 Emergency Additions. In the event that funds are
withdrawn pursuant to Section 9.4.4, or if the Security Deposit held by NCPA
is otherwise insufficient to allow for NCPA to pay any invoice, demand,
request for further assurances by Third Parties, or Claims, NCPA shall notify
all Participants of the deficiency. In conjunction with such notice, NCPA
shall send a special or emergency assessment invoice to the Participant or
Participants that caused or are otherwise responsible for the deficiency. Each
Participant of such an invoice shall pay to NCPA such assessment when and
if assessed by NCPA within two (2) Business Days of the invoice date of the
assessment, or shall consent to and direct NCPA to draw on any existing
letter of credit Participant has established for such purposes. In the event that
the Participant or Participants that caused or are otherwise responsible for the
deficiency cannot, does not or will not pay to NCPA the special or emergency
assessment within two (2) Business Days of the invoice date, NCPA shall
immediately submit a special or emergency invoice to all remaining
Participants in accordance with Section 14.3.2, and such remaining
Participants shall pay to NCPA such assessment within two (2) Business Days
of the invoice date of the assessment, or shall consent to and direct NCPA to
draw on any existing letter of credit that Participant has established for such
purposes.
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9.4.7 Security Deposit Interest. NCPA shall maintain a
detailed accounting of each Participant's Security Deposits, and withdrawals
of such funds, held by NCPA. Security Deposits held by NCPA shall be
invested by NCPA in accordance with the General Operating Reserve policies
and investment policies adopted by the NCPA Commission. Interest earned
on the Security Deposit funds shall be proportionately credited to the
Participants in accordance with their weighted average balances held therein.
Any Security Deposit losses caused by early termination of investments shall
be allocated among the Participants in accordance with the General
Operating Reserve provisions and guidelines approved by the Commission,
as the same may be amended from time to time; provided, however, to the
extent that either the General Operating Reserve provisions and guidelines do
not apply or the Security Deposit is not adequate to cover the losses, then
such losses shall be allocated among the Participants in accordance with their
proportionate Security Deposit balances.
9.4.8 Return of Funds. Upon termination or a permitted
withdrawal of a Participant in accordance with this Agreement, the affected
Participant may apply to NCPA for the return of their share of Security
Deposit funds ninety (90) days after the effective date of such termination or
withdrawal. However, NCPA shall, in its sole but reasonable discretion, as
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determined by the NCPA General Manager, estimate the then outstanding
liabilities of the Participant, including any estimated contingent liabilities and
shall retain all such funds, if any, until all such liabilities have been fully paid
or otherwise satisfied in full. After all such liabilities have been satisfied in
full, as determined by NCPA's General Manager, any remaining balance of
the Participant's share of the Security Deposit will be refunded to the
Participant within sixty (60) days thereafter
9.5 Contract Transactions Removed from the MPP. Any Contract
Transaction shall no longer be included in the calculation of a Participant's
obligations set forth in Section 9.1 or the Security Deposit requirements set forth
in Section 9.4 on the date its Transaction Confirmation terminates or expires and
Participant's obligations under this Agreement attributed to such a Contract
Transaction have been satisfied in full; provided, however, that all other
obligations set forth in this Agreement shall remain effective and applicable to
such Participant, including but not limited to this Agreement's Indemnity and
Hold Harmless obligation set forth in Section 14.2 and Joint Liability obligation
set forth in Section 14.3.2. All other Contract Transactions shall continue to be
included in the calculation of a Participant's obligations set forth in Section 9.1
and the Security Deposit requirements set forth in Section 9.4, until such time as
NCPA approves otherwise. NCPA may, in its sole discretion, remove a
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Contract Transaction from the calculation of a Participant's obligations through
alternate means including assignment, book -out, offsetting transaction, or
termination. Any proceeds or costs associated with removing a Contract
Transaction from use in the calculation of Participants' obligations herein shall
be allocated among the Participants in accordance with their Subscription
Percentages unless otherwise agreed upon in writing by the Participants.
9.6 Invoicing.
9.6.1 Invoices. As part of NCPA's regular, monthly, advance
billing (the "All Resources Bill") or by separate special invoice, as required in
the circumstances, NCPA will issue an invoice to each Participant that will
include its Subscription Percentage share of the Commodity Costs,
Commodity Revenues, MPP Costs and Transactions Specific Costs due or
payable (or any adjustments thereto) in accordance with Section 9. Each
invoice shall include, but is not limited to the following:
(i) The total Transaction Specific Costs and Commodity Costs
attributable to Procurement of Approved Products under this Agreement for
such month and the relevant Participant's share thereof;
(ii) The total Transaction Specific Costs and Commodity
Revenues collected from Selling Approved Products under this Agreement for
such month and the relevant Participant's share thereof;
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(iii) The total MPP Costs attributable to program services for
such month and the relevant Participant's share thereof;
(iv) The quantity of Approved Products, by Contract
Transaction, delivered to or supplied from such Participant (or an estimate
thereof) and the unit price for such Approved Products;
thereof);
(v) Appropriate settlement and meter data (or an estimate
(vi) Any adjustments to prior invoices required based on actual
data received that was estimated in a previous invoice;
(vii) Notice of the amount, if any, that NCPA has paid or expects
to pay using Security Deposit funds; and
Section 9.4.3.
(viii) Amounts due from (or credited to) such Participant under
9.6.2 Payment of Invoices. All non -emergency invoices
delivered by NCPA in the normal course of billing hereunder (including the
All Resources Bill and special invoices) are due and payable within thirty (30)
days of the invoice date; provided, however, that any amount due on a day
other than a Business Day may be paid on the following Business Day.
NCPA may apply a Participant's Security Deposit share to the payment of all
or any portion of an invoice issued to such Participant (including that portion
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of an invoice relating to the MPP), provided that application of such Security
Deposit funds shall not relieve the Participant from any late payment charges
pursuant to Section 9.6.3. To the extent that NCPA applies Security Deposit
funds to pay an amount due under an invoice, following receipt of payment
of such invoice by the relevant Participant, NCPA shall deposit the relevant
portion of the payment to the General Operating Reserve and credit such
Security Deposit to such Participant. Emergency invoices shall be due as
indicated in Section 9.4.6 above.
9.6.3 Late Payments. Any amount due and not paid by a
Participant in accordance with Section 9.6.2 and 9.4.6 shall bear interest
computed on a daily basis until paid at the lesser of: (i) the per annum prime
rate (or reference rate) of the Bank of America NT&SA then in effect, plus two
percent (2%), or (ii) the maximum rate permitted by law.
9.7 Settlement Data and Examination of Books and Records.
9.7.1 Settlement Data. NCPA will make metering and
settlement data available to the Participants, as applicable. Procedures and
formats for the provision of such data will be as established by the NCPA
Commission from time to time.
9.7.2 Examination of Books and Records. Any Participant to
this Agreement shall have the right to examine the books and records created
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and maintained by NCPA pursuant to this Agreement at any reasonable,
mutually agreed upon time.
9.7.3 Revenue Covenant. Any failure of a Participant to meet
its obligations hereunder or to cure such failure in a timely manner shall
constitute an Event of Default and the Defaulting Party shall be subject to
such remedies of NCPA as provided for herein. Each Participant covenants
and agrees:
(i) To continue to pay or advance to NCPA, from its Revenues
only, provided that such sources shall not include any sums derived from
sources the use of which is limited by law to expenditures other than operating
expenses, and its obligations under this Agreement. Each Participant further
agrees that it will fix the rates and charges for services provided by its Electric
System so that it will at all times have sufficient money in its department revenue
funds to meet this obligation;
(ii) To make payments under this Agreement from the
Revenues of, and as an operating expense of, its Electric System;
(iii) To 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, such payments not being subject to any
reduction, whether by offset or otherwise, and regardless of whether any dispute
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exists provided such interruption, interference or reduction in services is caused
by forces constituting an Act of God and not reasonably contemplated by the
Parties; and
(iv) To operate its Electric System and the business in connection
therewith in an efficient manner and at reasonable cost and to maintain its
Electric System in good repair, working order, and condition.
Section 10. Administration of Agreement.
10.1 General. Except as otherwise specified in this Agreement, the
NCPA Commission has sole overall responsibility and authority for the
administration of this Agreement. Any acts, decisions or approvals taken, made
or sought by NCPA under this Agreement shall be taken, made or sought, as
applicable, in accordance with NCPA's Constitutive Documents and Section 10.2.
10.2 Action by Participating Members.
10.2.1 Forum. Whenever any action anticipated by this
Agreement is required to be taken by the Participants, such actions shall be
taken at a regular or special meeting of the NCPA Commission, but shall be
participated in only by those Commissioners, or their designated alternates,
who represent Participants.
10.2.2 Quorum. A quorum at NCPA Commission meetings for
purposes of acting upon matters relating to this Agreement shall consist of
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Commissioners, or their designated alternates, representing the majority of
Participants to the extent not inconsistent with Section 10.2.3(i), provided that
as to matters related to a specific Contract Transaction a quorum shall consist
of Commissioners, or their designated alternatives, representing a majority
interest in the Contract Transaction based upon their Subscription
Percentages.
10.2.3 Voting. Each Participant shall have the right to cast one
vote with respect to matters pertaining to this Agreement, with a majority
vote of the Participants required for action subject to the following
exceptions:
(i) Upon request of any Participant representative with a
Subscription Percentage in a specific Contract Transaction, the voting on an issue
related to a specific Contract Transaction shall be by Participant Subscription
Percentage with a 65% or more favorable vote necessary to carry the action.
(ii) After any decision related to this Agreement, other than for a
specific Contract Transaction, is taken by the affirmative vote of less than 65% of
the Participants, the action can be reviewed and revised if a Participant gives
notice of intention to seek such review and revision to NCPA and each of the
other Participants within ten (10) days following the date on which such action
was taken. Upon receipt of such a request for reconsideration, the Chairman of
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the Commission shall agendize the matter for reconsideration at the next regular
meeting of the Commission or at a special meeting if the circumstances so
warrant. The action shall be upheld upon a majority vote of the authorized
representatives of the Participants, where each Participant will have the right to
cast one vote as to the matter presented for reconsideration. Any action taken
upon reconsideration shall be final.
Section 11. Admission and Withdrawal of Participants.
11.1 Admission of New Participants. Following the Effective Date of
this Agreement, a Member may execute this Agreement and become a
Participant provided that such joinder is approved by the NCPA Commission in
accordance with Section 10.2, and the new Participant: (i) reimburses existing
Participants for a proportionate share of the applicable costs identified during
NCPA's Annual Budget process and any MPP Costs incurred to establish and
administer this MPP Program as determined by existing Participants, and (ii)
satisfies all Security Deposit requirements under this Agreement.
A new Participant shall not be entitled to receive any Approved Products
or be obligated to provide any Approved Products in connection with a Contract
Transaction entered into prior to the date it becomes a Participant unless one or
more Allocating Participants formally elect to allocate a portion of its
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Subscription Percentage share of an existing Contract Transaction to such new
Participant.
Upon execution of such formal agreement therefore and affirmative vote
thereon by all Allocating Participants, NCPA shall prepare and distribute to each
Participant the written agreement between the new Participant and the
Allocating Participant(s) indicating the agreed upon change in the Subscription
Percentage(s) for the designated Contract Transaction(s), a counterpart of this
Agreement executed by the new Participant, and a report from NCPA's Deal
Capture System reflecting the revised Subscription Percentages. Any reduction
in any Allocating Participant's Security Deposit share shall be credited to the
Allocating Participants in accordance with Section 9.4.3.
11.2 Withdrawal of Participants.
11.2.1 Requirements and Process. A Participant may
voluntarily withdraw from this Agreement by providing two (2) years'
advance written notice to NCPA and the other Participants. Notwithstanding
the aforementioned, such Withdrawing Participant's liability pursuant to
Section 14.3.2 will not be eliminated or reduced after Withdrawing
Participant formally withdraws unless Withdrawing Participant no longer
has a Subscription Percentage in an outstanding Contract Transaction, or
Withdrawing Participant has assigned all its outstanding Contract
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Transaction Subscription Percentage to an Adjusting Participant. If
Withdrawing Participant has no Subscription Percentage in an outstanding
Contract Transaction or has otherwise assigned all its outstanding Contract
Transaction Subscription Percentage to an Adjustment Participant, such
Withdrawing Participant shall continue to be considered a non -defaulting
Participant with no outstanding Contract Transactions for the purposes of
Section 14.3.2 from the time Withdrawing Participant provides two (2) years'
advance written notice of its intent to withdraw from this Agreement to the
time that Participant formally withdraws. Upon the mutual agreement of
two or more Participants, the Withdrawing Participant may assign all, or a
portion of, its Subscription Percentage share of its Contract Transactions to an
Adjusting Participant, if such withdrawal and assignment does not violate
any applicable credit support conditions contained in any of the relevant
agreements to which the Withdrawing Participant and/or Adjusting
Participant is a party. The Withdrawing Participant shall provide to NCPA
the applicable assignment agreement between the Withdrawing Participant
and the Adjusting Participant(s) regarding any such assignments and NCPA
shall reflect the change in its Deal Capture System recording the new
allocation of Subscription Percentages.
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11.2.2 Associated Costs. A Withdrawing Participant shall
reimburse NCPA for any and all costs resulting from the withdrawal,
including but not limited to the legal, accounting, and administrative costs of
winding up and assuring the complete satisfaction and discharge of the
Withdrawing Participant's obligations. A Withdrawing Participant will
continue to be liable for all Contract Transactions entered into on its behalf,
including all Security Deposit requirements set forth in Section 9.4, that are
not otherwise assumed by an Adjusting Participant.
11.2.3 No Effect on Prior Liabilities. Withdrawal by any
Participant will not terminate any ongoing or un -discharged contingent
liabilities or obligations resulting from this Agreement until they are assigned
to an Adjusting Participant, or are otherwise satisfied in full, or such
Withdrawing Participant has provided a mechanism reasonably acceptable to
NCPA and the remaining Participants, for the satisfaction in full thereof.
Section 12. Term and Termination. The Term of this Agreement shall
commence on the Effective Date, and shall continue through the end of the then
current Fiscal Year plus five (5) years�(the "Initial Term"), so the Initial Term of
this Agreement is coincident with the Fiscal Year. After the Initial Term has
expired, this Agreement shall remain in effect until NCPA terminates this
Agreement upon two (2) years' advance written notice to all Participants.
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Section 13. Default and Remedies.
13.1 Events of Default. An Event of Default under this Agreement shall
exist upon the occurrence of any one or more of the following by a Party in
default of its obligations hereunder ("Defaulting Party"):
13.1.1 If any Party fails to make any payment or to provide
assurances as required pursuant to this Agreement or to a Contract
Transaction when due hereunder within two (2) Business Days after receipt
of notice given by NCPA of such non-payment; or
13.1.2 The failure of the Defaulting Party to perform any other
covenant or obligation under this Agreement where such failure is not cured
within ten (10) calendar days following receipt of a notice from NCPA
demanding cure (provided that this shall not apply to any failure to make
payments (which is covered by Section 13.1.1); or
13.1.3 If any representation or warranty of the Defaulting Party
material to the transactions contemplated hereby shall prove to have been
incorrect in any material respect when made and the Defaulting Party does
not cure the facts underlying such incorrect representation or warranty so
that the representation or warranty becomes true and correct within ten (10)
calendar days of the date of receipt of notice from any other Party demanding
cure; or
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13.1.4 If a Participant is in default or in breach of any of its
covenants under any other agreement with NCPA and such default or breach
is not cured within the time periods specified in such agreement; or
13.1.5 The failure of NCPA to perform any covenant or
obligation under this Agreement following a ten (10) calendar day notice to
cure by any non -defaulting Participant.
13.2 Cure of an Event of Default. An Event of Default shall be deemed
cured only if such default shall be remedied within the time period specified in
Section 13.1, above, as may be applicable, after written notice has been sent to the
Defaulting Party from NCPA specifying the default and demanding that the
same be remedied; provided, however, that failure of a Party to provide such
notice shall not be deemed a waiver of such default.
13.3 Participation Rights Of DefaultingParty. Notwithstanding
anything herein to the contrary, upon the occurrence of an Event of Default and
until such Event of Default is cured, the Participant that is the Defaulting Party
shall not have the right to participate under Section 10.2 on any matters with
respect to this Agreement.
13.4 Remedies in the Event of Default.
13.4.1 Remedies of NCPA. Upon the occurrence of an Event of
Default where a Participant is the Defaulting Party, without limiting its other
1834887.5
50
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
rights or remedies available under this Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action NCPA may have against the Defaulting Party
Participant, NCPA may:
(i) Suspend the provision of services under this Agreement to
such Defaulting Party, including the delivery or sale of Approved Products
pursuant to any Contract Transactions until the Event of Default is cured; and
(ii) Demand that the Defaulting Party provide further
assurances to compel the correction of the default, including the collection of a
surcharge, or such other actions as may be necessary to produce Revenues to
secure the cure of the Event of Default; and
(iii) Terminate this Agreement as to the Defaulting Party, on ten
(10) calendar days' prior written notice to the Defaulting Party and following
approval of the non -defaulting Participants.
13.4.2 Sale/Transfer of Participants Account Upon Default.
Upon any default of a Participant caused by the failure of such Participant to
pay any sums due, and provided that such default is not cured in a timely
manner, then NCPA shall use its best efforts to sell and transfer for the
Defaulting Party's account all or a portion of the Defaulting Party's Contract
Transactions for the remainder of the term of this Agreement.
1834887.5
51
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Notwithstanding that all or any portion of the Defaulting Party's Contract
Transactions is so sold or transferred, the Defaulting Party shall remain liable
for all of its obligations not otherwise satisfied by the sale or transfer of
Defaulting Party's Contract Transactions hereunder unless released
therefrom by NCPA upon assumption by a transferee or assignee.
13.4.3 Remedies of Participants. Upon the occurrence of an
Event of Default where NCPA is the Defaulting Party, and following the
applicable cure periods, the Participants may, without limiting their other
rights or remedies available under this Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action the Participants may have against NCPA, terminate
this Agreement in whole, subject to the provisions of Section 13.5.4.
13.4.4 Special Covenants Regarding Security Deposit. In the
event that a Participant's Security Deposit balance is insufficient to cover all
invoices for costs incurred under this Agreement sent to such Participant,
then, without limiting NCPA's other rights or remedies available under this
Agreement, at law or in equity, such Participant 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,
raising rates and charges to its customers to increase its Revenues to replenish
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
its share of the Security Deposit requirements as provided herein, 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 with all due haste.
13.5 Effect of Termination or Suspension.
13.5.1 Generally. The suspension or termination of this
Agreement will not terminate, waive, or otherwise discharge any ongoing or
undischarged contingent liabilities or obligations arising from this Agreement
until such obligations are satisfied in full, and all of the costs incurred by
NCPA in connection with such suspension or termination, including
reasonable attorney fees, the fees and expenses of other experts, including
auditors and accountants, other costs and expenses that NCPA is entitled to
recover under this Agreement, and other reasonable and necessary costs
associated with any and all of the remedies, are paid in full.
13.5.2 Suspension by NCPA. If performance of all or any
portion of this Agreement is suspended by NCPA with respect to a
Participant in accordance with Section 13.4.1(1), such Participant shall pay any
and all costs incurred by NCPA as a result of such suspension including
reasonable attorney fees, the fees and expenses of other experts, including
auditors and accountants, other reasonable and necessary costs associated
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
with such suspension and any portion of the MPP Costs that were not
recovered from such Participant as a result of such suspension.
13.5.3 Termination by NCPA. If this Agreement is terminated
by NCPA with respect to a Participant in accordance with Section 13.4.1(iii),
such Participant shall pay any and all costs incurred by NCPA as a result of
such termination, including reasonable attorney fees, the fees and expenses of
other experts, including auditors and accountants, other reasonable and
necessary costs associated with such termination and any portion of the MPP
Costs that were not, or will not be, recovered from such Participant as a result
of such termination; provided, however, if NCPA terminates this Agreement
with respect to the last Participant, then this Agreement shall terminate.
13.5.4 Termination by Participants. If this Agreement is
terminated by all Participants in accordance with Section 13.4.3, or by
unanimous consent of all of the Parties hereto, then the Participants shall pay
to NCPA all previously unpaid MPP Costs incurred as of the date of such
termination, and following such termination, the Participants shall cooperate
and act in good faith to negotiate and agree upon the method of allocating
among the Participants in proportion to their respective Subscription
Percentages the costs and benefits of the Contract Transactions, all
Transaction Instruments then in effect, and any financing agreements or
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
commitments and any matters pertaining to the administration, management,
control, operation and maintenance of the Contract Transactions. NCPA shall
reasonably cooperate with the Participants in connection with implementing
the foregoing and the Participants shall indemnify NCPA for any costs
incurred in connection therewith, including reasonable attorney fees, fees and
expenses of other experts, including auditors and accountants and other
reasonable and necessary costs. If the parties are unable to reach agreement
as to the foregoing, then the parties agree to submit the matter to mediation
with a mutually agreed upon mediator. If the parties are still unable to reach
agreement following mediation, then the matter shall be submitted to binding
arbitration subject to the rules of the American Arbitration Association, the
costs of such arbitration being borne proportionally among the Participants.
Section 14. Miscellaneous.
14.1 Confidentiality. The Parties will keep confidential all confidential
or trade secret information made available to them in connection with this
Agreement, to the extent possible, consistent with applicable laws, including the
California Public Records Act. It shall be the responsibility of the holder of the
claim of confidentiality or trade secret to defend at its expense against any
request that such information be disclosed. Confidential or trade secret
information shall be marked or expressly identified as such.
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
14.2 Indemnification and Hold Harmless. Subject to the provisions of
Section 14.4, each Participant agrees to indemnify, defend and hold harmless
NCPA and its Members, including their respective governing officials, officers,
agents, and employees, from and against any and all claims, suits, losses, costs,
damages, expenses and liability of any kind or nature, including reasonable
attorneys' fees and the costs of litigation, including experts ("Claims"), to the
extent caused by any acts, omissions, breach of contract, negligence (active or
passive), gross negligence, recklessness, or willful misconduct of a Participant, its
governing officials, officers, employees, subcontractors or agents, to the
maximum extent permitted by law.
14.3 Several Obligations and Joint Liabilities.
14.3.1 Several Obligations. No Participant shall, in the first
instance, be liable under this Agreement for the obligations of any other
Participant or for the obligations of NCPA incurred on behalf of other
Participants. Each Participant shall be solely responsible and liable for
performance of its obligations under this Agreement, except as otherwise
provided for herein. The obligation of each Participant under this Agreement
is, in the first instance, a several obligation and not a joint obligation with
those of the other Participants.
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Notwithstanding the foregoing, the Participants acknowledge
that any debts or obligations incurred by NCPA under this Agreement on
behalf of any of them shall be borne solely by such Participants, and not by
non -Participant Members of NCPA, pursuant to Article IV, Section 3(b) of the
Joint Powers Agreement.
14.3.2 Joint Liabilities. Notwithstanding the provisions of the
Joint Powers Agreement and the general nature of the liabilities in this
Agreement as several, the Participants agree that, if a Participant defaults
under this Agreement, the non -defaulting Participants will be jointly liable
for the obligations of such defaulting Participant in proportion to each non -
defaulting Participant's share of the total cost of all outstanding Contract
Transactions entered into by all non -defaulting Participants during the five
(5) years prior to the date of the default, unless and until NCPA is able to
fully recover from the defaulting Participant. Provided, however, that any
non -defaulting Participant with no outstanding Contract Transactions for the
five (5) years prior the date of the default shall nonetheless have an obligation
equal to one-half (1/2) that of the non -defaulting Participant with the lowest
outstanding Contract Transactions during such five (5) year period, and that
if no non -defaulting Participant has outstanding Contract Transactions
during such five (5) year period, then each non -defaulting Participant shall
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
share the obligation equally. In the event that the date of default occurs
within five (5) years of the Effective Date, then such five (5) year period shall
be shortened to include the time from the effective date of this Agreement
until the date of the default.
14.3.3 Non -Defaulting Participant Rights as to Defaulting
Participant. Should NCPA impose joint liability in accordance with Section
14.3.2, this Agreement shall in no way limit, restrict or preclude a non -
defaulting Participant from independently seeking equitable contribution, at
its sole expense, from any defaulting Participant.
14.4 No Consequential Damages. FOR ANY BREACH OF ANY
PROVISION OF THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED IN THIS AGREEMENT, THE
LIABILITY OF THE DEFAULTING PARTY SHALL BE LIMITED AS SET
FORTH IN SUCH PROVISION, AND ALL OTHER DAMAGES OR REMEDIES
ARE HEREBY WAIVED. IF NO REMEDY OR MEASURE OF DAMAGE IS
EXPRESSLY PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY
SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER
DAMAGES AND REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL
NCPA OR ANY PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS,
ASSIGNS, REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR
1834887.5
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EMPLOYEES BE LIABLE FOR ANY LOST PROFITS, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR INCIDENTAL LOSSES OR
DAMAGES, INCLUDING LOSS OF USE, LOSS OF GOODWILL, LOST
REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NCPA AND EACH PARTICIPANT EACH HEREBY WAIVES SUCH
CLAIMS AND RELEASES EACH OTHER AND EACH OF SUCH PERSONS
FROM ANY SUCH LIABILITY.
The Parties acknowledge that California Civil Code section 1542 provides
that: "A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her settlement
with the debtor." The Parties waive the provisions of section 1542, or other
similar provisions of law, and intend that the waiver and release provided by
this section of this Agreement shall be fully enforceable despite its reference to
future or unknown claims.
14.5 Amendments.
14.5.1 Amendments in General. Except where this Agreement
specifically provides otherwise, this Agreement may be amended only by
1834887.5
6��
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
written instrument executed by the Parties with the same formality as this
Agreement.
14.5.2 Approval and Amendment of Exhibits. Notwithstanding
the provisions of Section 14.5.1, any addition to, amendment to or termination
of the Exhibits attached hereto shall take effect after being approved by the
Commission in a manner consistent with the voting procedures set forth in
Section 10.2.3 of this Agreement, without the requirement of an approval of
the individual Participants governing body.
14.6 Severability. In the event that any of the terms, covenants or
conditions of this Agreement or the application of any such term, covenant or
condition, shall be held invalid as to any person or circumstance by any court
having jurisdiction, all other terms, covenants or conditions of this Agreement
and their application shall not be affected thereby, but shall remain in force and
effect unless the court holds that such provisions are not severable from all other
provisions of this Agreement.
14.7 Governing Law. This Agreement shall be interpreted, governed by,
and construed under the laws of the State of California.
14.8 Headings. All indices, titles, subject headings, section titles and
similar items are provided for the purpose of convenience and are not intended
1834887.5
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
to be inclusive, definitive, or affect the meaning of the contents of this Agreement
or the scope thereof.
14.9 Notices. Any notice, demand or request required or authorized by
this Agreement to be given to any Party shall be in writing, and shall either be
personally delivered to a Participant's Designated Representative and the
Secretary of the Commission or transmitted to the Participant and the Secretary
of the Commission at the address shown on the signature pages hereof. The
designation of such address may be changed at any time by written notice given
to the Secretary of the Commission who shall thereupon give written notice of
such change to each Participant.
14.10 Warranty of Authority. Each Participant, and NCPA, represents
and warrants that it has been duly authorized by all requisite approval and
action to execute and deliver this Agreement and that this Agreement is a
binding, legal, and valid agreement enforceable in accordance with its terms as to
the Participant and as to NCPA. Upon execution of this Agreement, each
Participant shall deliver to NCPA a resolution of the governing body of such
Participant evidencing approval of and authority to enter into this Agreement
and an opinion of legal counsel that such authority was duly exercised in
accordance with such Participant's Constitutive Documents.
1834887.5
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AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
14.11 Counterparts. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect
as an original instrument and as if all the signatories to all of the counterparts
had signed the same instrument. Any signature page of this Agreement may be
detached from any counterpart of this Agreement without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart of
this Agreement identical in form hereto but having attached to it one or more
signature pages.
14.12 Assignment. Except as provided by Section 11 no Participant may
assign or otherwise transfer their interest in their Subscription Percentage, or any
other rights and obligations under this Agreement, without the express written
consent of NCPA.
14.13 Venue. In the event that a Party brings any action under this
Agreement, the Parties agree that trial of such action shall be vested exclusively
in the state courts of California in the County of Placer or in the United States
District Court for the Eastern District of California.
14.14 Attorneys' Fees. If a Party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provision 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
1834887.5
62
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
may set such fees in the same action or in a separate action brought for that
purpose.
14.15 Interpretation. Each Party to this Agreement is sophisticated in the
operation of its respective Electric System, and in the purchasing and selling of
Approved Products. Each Party to this Agreement was represented by counsel
during the negotiation of this Agreement. Hence, this Agreement shall be
interpreted as being equally drafted by all Parties and without reference to Civil
Code Section 1654 requiring interpretation against Parties causing an ambiguity.
14.16 No Third Party Beneficiaries. Nothing contained in this Agreement
is intended by the Parties, nor shall any provision of this Agreement be deemed
or construed by the Parties or by any third person, to be for the benefit of any
Third Party, nor shall any Third Party have any right to enforce any provision of
this Agreement or be entitled to damages for any breach by the Parties of any of
the provisions of this Agreement.
14.17 List of Exhibits. The Exhibits referenced herein shall be denoted as
follows:
Exhibit A: Participant Authorization - Energy
Exhibit A-1: Additional Transaction Terms and Conditions - Energy
Exhibit B: Participant Authorization - RECs
Exhibit B-1: Additional Transaction Terms and Conditions - RECs
1834887.5 63
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Exhibit C: Participant Authorization - Resource Adequacy Capacity
Exhibit C-1: Additional Transaction Terms and Conditions - Resource
Adequacy Capacity
Exhibit D: Participant Authorization - GHG Compliance Instruments
Exhibit D-1: Additional Transaction Terms and Conditions - GHG
Compliance Instruments
1834887.5
Exhibit E: NCPA Commission -Approved Master Agreements
Exhibit F: NCPA Commission -Approved Bilateral Agreements
Exhibit G: NCPA Commission -Approved Exchanges
Exhibit H: NCPA Commission -Approved Auctions
Exhibit I: NCPA Commission -Approved Brokers
Exhibit J: Irrevocable Letter of Direction - Market Purchase Program
64
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
IN WITNESS WHEREOF, each Participant has executed this Agreement
with the approval of its governing body, and NCPA has authorized this
Agreement in accordance with the authorization of its Commission.
NORTHERN CALIFORNIA
POWER AGENCY
651 Commerce Drive
Roseville, CA 95678
I, A,), , ' �
By: 0
Title: General Manager
Date:
Approved as to form:
By:
Its: General C unsel
Date:
1834887.5
CITY OF ALAMEDA
2000 Grand Street
Alameda, CA 94501
By:
Title:
Date:
Approved as to form:
By:
Its:
Date:
N7
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
IN WITNESS WHEREOF, each Participant has executed this Agreement
with the approval of its governing body, and NCPA has authorized this
Agreement in accordance with the authorization of its Commission.
NORTHERN CALIFORNIA
POWER AGENCY
651 Commerce Drive
Roseville, CA 95678
By:
Title: General Manager
Approved as to form:
By:
Its: General Counsel
Date•
1834887.5
CITY OF ALAMEDA
2000 Grand Street
Alameda, CA 94501
65
Approved as to form:
By:
Its:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF BIGGS
465 "C" Street
Biggs, CA 95917
By: e!jf
Title: a^l A -'r C
Date: 7-10 —1 -7 --
Approved
/Z
Approved as to
By. G .�
Its: Afjur
Date: -711511-2—
CITY
7`31/2--
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
CITY OF GRIDLEY
685 Kentucky Street
Gridley, CA 95948
By:
Title:
Date:
Approved as to form:
By:_
Its:
Date:
CITY OF LODI
221 W. Pine Street
Lodi, CA 95240
By:
By:_
Title:
Title:
Date:
Date:
Approved as to form:
By:
Its:
Date:
1834887.5
Approved as to form:
By:_
Its:
Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF BIGGS
465 "C" Street
Biggs, CA 95917
By:
Title:
Date:
Approved as to form:
By:_
Its: _
Date:
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
CITY OF GRIDLEY
685 Kentucky Street
Gridley, CA 95948
w
By:—�Iji
Its:
Date:
as to form:
CITY OF LODI
221 W. Pine Street'
Lodi, CA 95240
IME
By: By:
Title: Title:
Date: Date:
Approved as to form: Approved as to form:
By:_
Its:
Date:
By:_
Its:
Date:
1834887.5 66
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF BIGGS CITY OF GRIDLEY
465 "C" Street 685 Kentucky Street
Biggs, CA 95917 Gridley, CA 95948
By:
By:
Title:
Title:
Date:
Date:
Approved as to form:
Approved as to form:
By:
By:
Its:
Its:
Date:
Date:
Y OF HEALDSBURG CITY OF LODI
Grove Street 221 W. Pine Street
.ldsburg, CA 96448 Lodi, CA 95240
Title:"
Date: -
Approved as to form:
Its: -f
Date:
1834887.5
By:_
Title:
Date:
Approved as to form:
By:_
Its: _
Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF BIGGS
465 "C" Street
Biggs, CA 95917
CITY OF GRIDLEY
685 Kentucky Street
Gridley, CA 95948
By: By:_
Title: Title:
Date:
Approved as to form:
Date:
Approved as to form:
By: By:
Its: Its:
Date:
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
By:_
Title:
Date:
Approved as to form:
By:_
Its:
Date:
1834887.5
Date:
CITY OF LODI
221 W. Pine Street
Lodi, CA 95240
By: Konradt Bartlam
Title: City Manager
Date: �',,_5— C Z
Approved as to f m:
C�
By:e hen ht abauer
Its: City Attorney
Date:
ATTE
: : ;
RANDT 3,0HL, C' Clerk
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF LOMPOC
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
---- UV��-
Title:
Date: Z—
Approved as to form:
��Zls
W-�3t�'
Its: Attorney
Date: /)V,
1834887.5
CITY OF UKIAH
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
Date:
Approved as to form:
By:
Its:
Attorney
Date:
67
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF LOMPOC
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
Date:
Approved as to form:
1834887.5
67
CITY OF UKIAH
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
� _V, e"L - 'L
By: ane Chambers
T' I : Citv Manner
er
Date: r3—� 2�
Approved to form:
By: Da ' ap12or
Its: City of Ukiah Attorney
Date: b 1 Z- 5 111 -'Z-
67
z
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF LOMPOC CITY OF UKIAH
100 Civic Center Plaza 300 Seminary Avenue
Lompoc, CA 93436 Ukiah, CA 95482
By:
By:
Title:
Title:
Date:
Date:
Approved as to form:
Approved as to form:
By:
By:
Its:
Its:
Date:
Date:
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT
300 Lakeside, 1611, Floor
Oakland, CA 94612
Approved as to form:
lk!�f AZ
By:_A,MOA G o rye 7 -
Its:—
Its: -a &6"
Date:,
1834887.5
.eY
67
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT A
PARTICIPANT AUTHORIZATION — ENERGY
The undersigned Participant hereby subscribes to the following Contract
Transaction and agrees to transact Energy designated as an Approved Product
pursuant to the Amended and Restated Market Purchase Program Agreement
and the Transaction Instrument designated below, supplemented and modified
as follows:
(a) Seller:
(b) Purchaser:
(c) Period of Delivery: Beginning Ending
(d) Schedule (Days and Hours):
(e) Maximum Delivery Rate:
(f) Delivery Point(s):
(g) Type of Product:
(h) Contract Quantity: MWhrs / MW
(i) Contract Price: See Attachment A-1
(j) Transmission Path for the Transaction:
(k) Form of Transaction Instrument:
(1) Special Terms and Exceptions: See Attachment A-1
(m) Security Deposit Amount Required
(n) Transfer from GOR
(o) Pay by Check or Wire (specify)
Except to the extent herein provided for, no amendment or modification
to the Agreement shall be enforceable unless reduced to writing and executed by
both Parties. Those persons executing this Participant Authorization and the
Parties hereby warrant that they are authorized to do so.
Participant
Jane Chambers, City Manager
Date:
Approved as to Legal Form,
Procedure and Authorization
M.
David Rapport, City Attorney
1834887.5 A-1
NCPA
in
General Manager
Date:
Approved as to Legal Form
General Counsel
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT A-1
ATTACHMENT A-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
ENERGY
(Attach Buyer's/Seller's completed Attachment A-1 to the Participant Authorization)
1834887.5
A-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT B
PARTICIPANT AUTHORIZATION - RECs
The undersigned Participant hereby subscribes to the following Contract Transaction and agrees
to transact RECs designated as an Approved Product pursuant to the Amended and Restated Market
Purchase Program Agreement and the Transaction Instrument designated below, supplemented and
modified as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1)
(k)
(1)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
Seller:
Purchaser:
Type of REC:
Applicable Program:
Product Type:
Certifier:
Contract Quantity: MWhrs/ RECs
Vintage:
Reporting Year:
Renewable Energy Resource (if applicable):
Resource Type (if applicable):
Contract Price: See Attachment B-1
Delivery Term: Beginning Ending
Alternate Payment Terms: See Attachment B-1
Allocation of Change in Law Risk:
Delivery Point:
Alternate Title Transfer:
Form of Transaction Instrument:
Special Terms and Exceptions: See Attachment B-1
Security Deposit Amount Required
Transfer from GOR
Pay by Check or Wire (specify)
Except to the extent herein provided for, no amendment or modification to the Agreement shall
be enforceable unless reduced to writing and executed by both Parties. Those persons executing this
Participant Authorization and the Parties hereby warrant that they are authorized to do so.
Participant
Jane Chambers, City Manager
Date:
Approved as to Legal Form,
Procedure and Authorization
David Rapport, City Attorney
1834887.5
NCPA
General Manager
Date:
Approved as to Legal Form
Is
General Counsel
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT B-1
ATTACHMENT B-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
RECs
(Attach Buyer's/Seller's completed Attachment B-1 to the Participant Authorization)
1834887.5
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT C
PARTICIPANT AUTHORIZATION — RESOURCE ADEQUACY CAPACITY
The undersigned Participant hereby subscribes to the following Contract Transaction
and agrees to transact Resource Adequacy Capacity designated as an Approved Product
pursuant to the Amended and Restated Market Purchase Program Agreement and the
Transaction Instrument designated below, supplemented and modified as follows:
Seller:
Purchaser:
Period of Delivery: Beginning Ending
Contract Quantity NQC: MW
Resource Name:
CAISO Resource ID:
Resource Type:
Resource Category (if applicable):
Delivery Point(s):
Path 26 (North, South or None):
Local Area/System Capacity:
Deliverability/NQC Restrictions: See Attachment C-1
Contract Price: See Attachment C-1
Transmission Path for the Transaction:
Form of Transaction Instrument:
Special Terms and Exceptions: See Attachment C-1
Security Deposit Amount Required
Transfer from GOR
Pay by Check or Wire (specify)
Except to the extent herein provided for, no amendment or modification to the
Agreement shall be enforceable unless reduced to writing and executed by both Parties.
Those persons executing this Participant Authorization and the Parties hereby warrant that
they are authorized to do so.
Participant
Jane Chambers, City Manager
Date:
Approved as to Legal Form,
Procedure and Authorization
an
David Rapport, City Attorney
1834887.5
C-1
NCPA
General Manager
Date:
Approved as to Legal Form
as
General Counsel
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT C-1
ATTACHMENT C-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
RESOURCE ADEQUACY CAPACITY
(Attach Buyer's/Seller's completed Attachment C-1 to the Participant Authorization)
1834887.5
C-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT D
PARTICIPANT AUTHORIZATION — GHG COMPLIANCE INSTRUMENTS
The undersigned Participant hereby subscribes to the following Contract Transaction and agrees
to transact GHG Compliance Instruments designated as an Approved Product pursuant to the Amended
and Restated Market Purchase Program Agreement and the Transaction Instrument designated below,
supplemented and modified as follows:
Seller:
Purchaser:
Type of GHG Compliance Instrument:
Applicable Program:
Issuing Body:
Certifier:
Contract Quantity: Compliance Instrument
Vintage:
Reporting Year:
Source (if applicable):
Resource Type (if applicable):
Contract Price: See Attachment B-1
Delivery Term: Beginning Ending
Alternate Payment Terms: See Attachment B-1
Allocation of Change in Law Risk (if applicable):
Delivery Point (if applicable):
Special Terms and Exceptions: See Attachment B-1
Security Deposit Amount Required:
Transfer from GOR:
Pay by Check or Wire (specify):
Except to the extent herein provided for, no amendment or modification to the Agreement shall
be enforceable unless reduced to writing and executed by both Parties. Those persons executing this
Participant Authorization and the Parties hereby warrant that they are authorized to do so.
Participant
rtm
Jane Chambers, City Manager
Date:
Approved as to Legal Form,
Procedure and Authorization
David Rapport, City Attorney
1834887.5 D-1
NCPA
General Manager
Date:
Approved as to Legal Form
General Counsel
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT D-1
ATTACHMENT D-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
GHG COMPLIANCE INSTRUMENTS
(Attach Buyer's/Seller's completed Attachment D-1 to the Participant Authorization)
1834887.5
D-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT E
NCPA COMMISSION APPROVED MASTER AGREEMENTS
This Exhibit E contains the list of Commission approved Master
Agreements that may properly be used as Transaction Instruments to
consummate Contract Transactions pursuant to Section 5.1.1 of this Agreement.
1. EDISON ELECTRIC INSTITUE (EEI) MASTER POWER PURCHASE &
SALE AGREEMENT VERSION 2.1 (MODIFIED 4/25/00); INCLUDING
NCPA PREFERRED TERMS
2. WSPP AGREEMENT, AS MOST RECENTLY AMENDED AT THE TIME
OF THE TRANSACTION.
1834887.5
E-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT F
NCPA COMMISSION APPROVED BILATERAL AGREEMENTS
This Exhibit F contains the list of Commission approved Bilateral
Agreements that may properly be used as Transaction Instruments to
consummate Contract Transactions pursuant to Section 5.1.2 of this Agreement.
1. NONE
1834887.5
F-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT G
NCPA COMMISSION APPROVED EXCHANGES
This Exhibit G contains the list of Commission approved Exchanges that
may properly be used to consummate Contract Transactions pursuant to Section
5.1.3.
1. NEW YORK MERCANTILE EXCHANGE ("NYMEX")
2. INTERCONTINENTAL EXCHANGE ("ICE")
1834887.5
G-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT H
NCPA COMMISSION APPROVED AUCTIONS
This Exhibit H contains the list of Commission approved Auctions that
may properly be used to consummate Contract Transactions pursuant to Section
5.1.4.
1. NONE
1834887.5
H-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT I
NCPA COMMISSION APPROVED BROKERS
This Exhibit I contains the list of Commission approved Brokers that may
be used to consummate Contract Transactions.
1. NONE
1834887.5
I-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EXHIBIT J
IRREVOCABLE LETTER OF DIRECTION
MARKET PURCHASE PROGRAM
To: Chief Financial Officer, Northern California Power Agency
From:
Name of Participant ("Participant")
Subject: IRREVOCABLE LETTER OF DIRECTION
I hereby certify that I have been duly authorized on behalf of Participant's
governing body to irrevocably authorize and direct Northern California Power
Agency ("NCPA") to pay any and all obligations incurred by NCPA on behalf of
Participant, as a Party to the AMENDED AND RESTATED MARKET
PURCHASE PROGRAM AGREEMENT, as the same may be amended from time
to time, from any funds held by NCPA for such purposes, including any funds
held and committed in Participant's General Operating Reserve account as
security deposits for such obligations.
Authorized, Approved, and
Directed by:
Designated Representative
Approved As to Legal Form, Procedure and Authorization:
1834887.5
Principal Counsel
J-1
Date:
Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT