HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2014-02-27 Part 2 J
AMENDED AND RESTATED
FACILITIES AGREEMENT
Table of Contents
Section1 . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section2. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . arm . . . memo . . arm . . . . . . . . . . . . . . . . . . arm . . . . man . . . . . . . . . . . . . . . . . . memo . . 7
Section 3 . Duties of the Commission. . . . . : . . . . . . . . . . . . . . . . . . . : . . . . . . motor . . . . . . . . . . . meant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4. Duties of the General Manager and NCPA Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section5 . Facilities Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6 . Project Services, Development and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7. Project Share Transfers, Sales, Assignments and Exchanges . . . . . . . . . . . . . . . . . . . . . . . . 25
Section8 . Billing and Payments . . . . . . . . . . . . . . . . . . . . . . . . . :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9 . Cooperation and Further Assurances . . . . . , . memo Does * * 31
Section 10. Participant Covenants and Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 11 . Facilities Schedules . . . . . . . . . . . . . . . . . . . . . . . . . :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s 36
Section 12. Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 13 . Potential Adverse Impact . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 14. Term and Termination . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 15. Admission and Withdrawal of Participants . . . . . . . 38
Section 16 . Reports and Records . . 0 a a a a a & 9 0 a a 0 0 0 a 0 a 0 0 0 a 0 0 6 9 0 0 42
Section 17. Settlement of Disputes and Arbitration . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section18 . Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . 0000 . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Facilities Schedule 1 . List of Participants . . . . . . at 900 emerge * * * 1
Facilities Schedule 2. NCPA Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 3 . Billing Procedures and NCPA Project Cost Determinants . . ... . . . . . . . . . . . 1
Facilities Schedule 4. Shared Facilities and Cost Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 5 . CT1 Project Operating Procedures . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 1
Facilities Schedule 6 . Geothermal Project Operating Procedures . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 7. Hydroelectric Project Operating Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 8 . STIG Project Operating Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . 1
Facilities Schedule 9 . Power Purchase Project Operating Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 10 . Reserve Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 11 , Project Phases . . 0 0 0 9 9 0 0 4 6 a 8,a 9 0 0 0 a a 0 8 6 8 a 0 a 0 0 a a a 0 0 0 0 a 0 0 6 4 6 a 0 0 0 0 6 0 t000poso 0 0 a 0 0 0 of a m # * a 0 1
Facilities Schedule 12. Federal Tax Guidelines Relating to Private Business Use . . . . . . . . . . . . . . 1
Facilities Schedule 13 . Reports to Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facilities Schedule 14. Participant Notice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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AMENDED AND RESTATED FACILITIES AGREEMENT
This AMENDED AND RESTATED FACILITIES AGREEMENT ("this
Agreement") is dated as of October 1, 2014 by and among the Northern
California Power Agency, a joint powers agency of the State of California
("NCPA"), and the signatories to this Agreement other than NCPA
("Participants" ) . NCPA and the Participants are referred to herein individually
as a "Party" and collectively as the "Parties" .
RECITALS
A . NCPA has heretofore been duly established as a public agency
pursuant to the joint Exercise of Powers Act of the Government Code of the State
of California and, among other things, is authorized to acquire, construct,
finance, and operate buildings, works, facilities and improvements for the
generation and transmission of electric capacity and energy for resale.
B . Each of the Participants other than the Turlock Irrigation District
("TID" ) is also a signatory to the joint Powers Agreement which created NCPA
and therefore is a .Member. The Participants other than TID are referred to as
"Member" or "Members" .
Co Each of the Participants to this Agreement has executed one or
more Project Agreements to participate in a NCPA Projector Projects .
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AMENDED AND RESTATED FACILITIES AGREEMENT
D . Each Participant is authorized by its Constitutive Documents to
obtain electric capacity and energy for its present or future requirements,
through contracts with NCPA or otherwise.
E. The Participants desire NCPA to establish facilities, staff and the
capability for planning for the addition of generation or transmission facilities,
and for entering into long-term transactions and transmission services .
F . NCPA has established facilities, staff and the capability for
planning for the addition of generation or transmission facilities, and for entering
into long-term transactions and transmission services .
G . The Participants desire NCPA to maintain, operate and schedule
the NCPA Projects in accordance with each respective Project Agreement,
applicable market rules and Good Utility Practices for the benefit of the
Participants .
H. The Members and NCPA have established and may again establish
NCPA Projects for the supply of electric capacity, energy, and related attributes,
and desire to clearly define and facilitate the activities of NCPA in connection
with such NCPA Projects.
I . This Agreement establishes the framework under which Project
Agreements are created for the development, design, financing, construction,
and operation of specific NCPA Projects.
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AMENDED AND RESTATED FACILITIES AGREEMENT
J Each of the Parties intends to observe the provisions of this
Agreement in good faith and shall cooperate with all other Parties in order to
achieve the full benefits of joint design, construction, and operation of facilities .
K. The Parties desire to equitably allocate costs of NCPA' s provision
of services under this Agreement among the Participants.
L. This Agreement amends, restates and replaces that certain Facilities
Agreement dated as of December 15, 1993, as amended by Amendment No . 1
dated as of April 1, 2011 (as amended, "the prior facilities agreement" ), and the
prior facilities agreement is hereafter of no further force or effect.
M. The Member Service Agreements between the Parties were
superseded by the prior facilities agreement, and continue to have no further
force or effect.
N. The Lodi Energy Center is independently governed pursuant to
separate agreements, and therefore the terms and conditions of this Agreement
do not apply to it.
O . The Participants further desire, insofar as possible, to insulate other
Members, whether or not such Members are also Participants, from risks
inherent in the services and transactions undertaken on behalf of any given
Participant or group of Participants .
NOW, THEREFORE, the Parties agree as follows .
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AMENDED AND RESTATED FACILITIES AGREEMENT
Section 1. Definitions,
141 Definitions. Whenever used in this Agreement (including the
Recitals hereto), the following terms shall have the following respective
meanings, provided, capitalized terms used in this Agreement (including the
Recitals hereto) that are not defined in Section 1 of this Agreement shall have the
meaning indicated in Section 1 of the Power Management and Administrative
Services Agreement:
1 . 1 . 1 "Administrative Services Costs" means that portion of
the NCPA administrative, general and occupancy costs and expenses,
including those costs and expenses associated with the operations, direction
and supervision of the general affairs and activities of NCPA, general
management, treasury operations, accounting, budgeting, payroll, human
resources, information technology, facilities management, salaries and wages
(including retirement benefits) of employees, facility operation and
maintenance costs, taxes and payments in lieu of taxes (if any), insurance
premiums, fees for legal, engineering, financial and other services, power
management services, general settlement and billing services and general risk
management costs, that are charged directly or apportioned to the
development, financing, construction, improvement, maintenance, operation
or decommissioning of a NCPA Project. Administrative Services Costs as
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AMENDED AND RESTATED FACILITIES AGREEMENT
separately defined herein and used in the context of this Agreement is
different and distinct from the term Administrative Services Costs as defined
in Section 1 of the Power Management and Administrative Services
Agreement.
1 . 1 .2 "Agreement" means this Amended and Restated
Facilities Agreement, including all Facilities Schedules.
1 . 1 .3 "Constitutive Documents" means, with respect to NCPA,
the Joint Powers Agreement and any resolutions or bylaws adopted
thereunder with respect to the governance of NCPA, and with respect to each
Participant, the California Government Code and other statutory provisions
applicable to such Participant, any applicable agreements, charters, contracts
or other documents concerning the formation, operation or decision making
of such Participant, including, if applicable, its City Charter, and any codes,
ordinances, bylaws, and resolutions adopted by such Participant' s governing
body.
1 . 1 .4 "Defaulting Participant" has the meaning set forth u1
Section 10.2 of this Agreement.
1 . 1 .5 "Event of Default" has the meaning set forth in Section
10 .2 of this Agreement.
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AMENDED AND RESTATED FACILITIES AGREEMENT
1 . 1 .6 "Facilities Schedules" are the principles and/or
procedures adopted by the Commission, which are appended to and made
part of this Agreement, and are subject to change or amendment from time to
time pursuant to Section 18 .7.2.
1 . 1 .7 "OSHA" means either the State or federal Occupational
Safety and Health Administration, or their respective successors .
1 . 1 .8 "Participant" has the meaning set forth in the recitals of
this Agreement. Each Participant, other than TID, shall be a Member.
Participants to this Agreement are listed in Facilities Schedule 1 .
1 .1 .9 "Party" or "Parties" has the meaning set forth in the
recitals hereto; provided that "Third Parties" are entities that are not Party to
this Agreement.
1 . 1 . 10 "Power Management and Administrative Services
Agreement" means the NCPA Power Management and Administrative
Services Agreement, dated as of October 1, 2014 between NCPA and the
Members who are signatories to that agreement by which NCPA provides
Power Management and Administrative Services.
1 . 1 . 11 "Project Costs" are costs associated with a NCPA Project
authorized pursuant to this Agreement and/or Project Agreements.
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AMENDED AND RESTATED FACILITIES AGREEMENT
1 . 1 . 12 "Third Party" means an entity (including a Member) that
is not a Party to this Agreement.
1 . 1 . 13 "Turlock Irrigation District" or "TID" means the Turlock
Irrigation District, a California Irrigation District.
1 . 1 . 14 "Withdrawing Participant" has the meaning set forth in
Section 15.2 of this Agreement.
1 .2 Rules of Interpretation. All words and references as used in this
Agreement (including the Recitals hereto), unless in any such case the context
requires otherwise, shall be interpreted pursuant to Section 1 .2 of the Power
Management and Administrative Services Agreement.
Section 2. Purpose. The purpose of this Agreement is to set forth the terms
and conditions under which NCPA may acquire, construct, finance and plan for
the addition of NCPA Projects, and manage, maintain, operate, schedule and
perform billing for NCPA Projects.
Section 3. Duties of the Commission.
391 Commission. The Commission is responsible for the
administration of this Agreement. Each Member shall be represented by its
Commissioner or their designated alternate Commissioner ("Alternate" )
pursuant to the Joint Powers Agreement. Each Commissioner shall have
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AMENDED AND RESTATED FACILITIES AGREEMENT
authority to act for the Participant represented with respect to matters pertaining
to this Agreement.
302 Duties and Authorities . In addition to the administration of this
Agreement, the duties and authorities of the Commission are as specified in the
Joint Powers Agreement, the NCPA Commission Bylaws, and all Project
Agreements between NCPA and Project Participants.
393 NCPA Projects . The Commission shall take all action required of it
in connection with NCPA Projects in a timely manner consistent with obligations
pursuant to Project Agreements, other agreements between NCPA and Project
Participants and as provided in this Agreement.
3 .4 Forum. Whenever any action anticipated by this Agreement is
required to be jointly taken by the Participants, such action shall be taken at
regular or special meetings of the NCPA Commission.
3 .5 Ouorum.
3 .5 . 1 General Administration. For purposes of acting upon
matters that relate . to general administration of this Agreement, such as, but
not limited to, establishment of common billing procedures, a quorum of the
Commission shall consist of those Commissioners, or their designated
Alternates, representing a numerical majority of the Member Participants.
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AMENDED AND RESTATED FACILITIES AGREEMENT
3 .5 .2 Relating to a NCPA Project. For purposes of acting upon
matters that relate to a NCPA Project, or more than a single NCPA Project, a
quorum of the Commission shall be established as provided for in the
applicable Project Agreement.
3 .6 Voting.
3 .6 . 1 General Administration. For acting upon matters that
relate to general administration of this Agreement, each Member Participant
shall have the right to cast one (1 ) vote. Actions of the Commission shall be
effective only upon a majority vote of the Member Participants .
3 .6 .2 Relating to a NCPA Project. For acting upon matters that
relate to a NCPA Project, or more than a single NCPA Project, voting shall be
in accordance with the applicable Project Agreement.
3 .7 Adoption and Amendment of Annual Budd Annually, the
Commission shall adopt an Annual Budget, which includes, but is not limited to,
all costs attributed to services provided under this Agreement, for at least the
next succeeding Fiscal Year in accordance with the NCPA Joint Powers
Agreement and. this Agreement. Provided, however, that the Commission may
in its discretion adopt a two-year budget if permitted to do so by the NCPA
Commission Bylaws or the Joint Powers Agreement.
Section 4. . Duties of the General Manager and NCPA Staff.
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AMENDED AND RESTATED FACILITIES AGREEMENT
4. 1 Reporting Authority. The General Manager shall report to, and be
supervised by, the Commission pursuant to the JPA.
4.2 NCPA Staff. The General Manager shall hire such staff or
consultants as necessary to carry out NCPA' s obligations pursuant to this
Agreement, within the constraints of the Annual Budget.
4.3 Duties and Authority. The General Manager, or NCPA staff
designated by the General Manager, shall:
(a) Carry out directions of the Commission with respect to matters
related to this Agreement;
(b) Direct, conduct, and administer First Phase Project studies;
(c) Direct and carry out all responsibilities of NCPA acting as project
manager or agent that operates the project pursuant to this
Agreement, Project Agreements, Facilities Schedules, Operating
Agreements, or any other agreement between NCPA and Project
Participants . Examples of said responsibilities include but are not
limited to:
(1) Acquisition of property, easements, and water rights as
necessary to construct and operate NCPA Projects;
(2) Obtaining federal, State, and local permits, licenses, opinions
and rulings, as well as any environmental permits, allowances
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AMENDED AND RESTATED FACILITIES AGREEMENT
or GHG Compliance Instruments, as necessary to construct
and operate NCPA Projects;
(3) Directing the design and construction of NCPA Projects;
(4) Recommending methods for NCPA Project financing;
(5) Providing for the operation and maintenance of NCPA
Projects, with contract support if necessary, in accordance
with all applicable reliability standards, requirements, criteria
and rules, and consistent with Good Utility Practice;
(6) Developing a billing system and invoicing Participants;
(7) Preparing and submitting proposed budgets for NCPA
Projects for the ensuing Fiscal Year to the Commission and
appropriate NCPA committees on such schedule as
established by the Commission;
(8) Installing and maintaining meters and metering equipment
for NCPA Projects in accordance with all applicable metering
requirements and standards, including but not limited to all
standards and requirements enforced in the CAISO Tariff;
(9) Providing Scheduling Coordination Services for NCPA
Projects in accordance with the Amended and Restated
Scheduling Coordination Program Agreement; and
(10) Presenting to the Facilities Committee proposed amendments
to this Agreement and the Facilities Schedules for the
Committee' s review and recommendations.
4.4 Goals and Objectives . Each year, the General Manager shall
propose to the Commission, specific goals and objectives for the NCPA staff as
such relate to this Agreement. NCPA shall provide periodic reports to the
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AMENDED AND RESTATED FACILITIES AGREEMENT
Commission regarding progress toward meeting the approved goals and
objectives. Those goals and objectives pertaining to NCPA Projects shall be
reviewed by the Facilities Committee.
Section 5. Facilities Committee.
5 . 1 Representation. The Facilities Committee is hereby established as
an advisory committee to the Commission. Each Participant shall be entitled to
identify a Primary Representative ("Primary Representative" ) to the Facilities
Committee and Alternate Representatives ("Alternate Representative" ) by
written notice from a Participant' s Commissioner, or their designee, to the
General Manager. Provided however, that TID's Primary Representative and
Alternative Representative shall be identified by written notice from its general
manager to the General Manager.
In the absence of the Primary Representative, the Alternate Representative
shall have all the rights of the Primary Representative with respect to matters
properly before the Facilities Committee under this Agreement. Primary and
Alternate Representatives shall serve until replaced by the Participant through
written notice from the Participant's Commissioner, or their designee (or, in the
case of TID, its general manager), provided to the General Manager.
5 .2 Officers and Staff. The Facilities Committee shall annually elect a
chair and a vice-chair to serve for the ensuing year. The chair of the Facilities
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AMENDED AND RESTATED FACILITIES AGREEMENT
Committee is responsible for managing Facilities Committee meetings, and in the
absence of the Facilities Committee chair, the vice-chair shall assume the duties
of the chair. Unless otherwise determined by vote of the Facilities Committee,
the vice-chair of the Facilities Committee will automatically become the chair of
the Facilities Committee following conclusion of the existing chair' s annual term.
The General Manager, or his or her designee, shall act as staff to the Facilities
Committee. The General Manager shall designate a NCPA staff person to act as
secretary of the Facilities Committee.
5.3 Recommendations. Recommendations of the Facilities Committee
shall be made to the Commission, Project Participants, and others, as
appropriate, h1 coordination with the General Manager.
5 .4 Meetings . Meetings of the Facilities Committee shall be held at
least quarterly and be conducted in accordance with the Ralph M. Brown Act.
The Facilities Committee shall adopt a meeting schedule for the next calendar
year prior to the end of each calendar year. The Facilities Committee secretary
shall be responsible for the posting of all agendas, for the provision of notice of
meetings to the Facilities Committee, and for the keeping of minutes reflecting
the discussions and decisions of the Facilities Committee .
5 .5 Ouorum.
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AMENDED AND RESTATED FACILITIES AGREEMENT
5 .5 . 1 Ouorum of the Facilities Committee. A quorum of the
Facilities Committee shall consist of those Primary Representatives, or their
designated Alternate Representatives, representing a numerical majority of
the Participants .
5 .5.2 Relating to a NCPA Project. Once a meeting of the
Facilities Committee has been established pursuant to Section 5 .5 . 1, for
purposes of acting upon matters relating to a NCPA Project pursuant to tl-ds
Agreement, a quorum of the Project Participants shall be required and shall
consist of those Primary Representatives, or their designated Alternate
Representatives, representing a numerical majority of a NCPA Project' s
Participants, or, in the absence of such, those Primary Representatives, or
their designated Alternate Representatives, representing a NCPA Project' s
Participants having a combined Project Participation Percentage greater than
50% .
5 .5 .3 Relating to More than One NCPA Project. Once a
meeting of the Facilities Committee has been established pursuant to Section
5.5. 1, for purposes of acting upon matters relating to more than one NCPA
Project pursuant to this Agreement, a quorum of the Project Participants for
each involved NCPA Project must be separately established, pursuant to
Section 5 .5 .2, before the Facilities Committee can take formal action.
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AMENDED AND RESTATED FACILITIES AGREEMENT
5 .6 Voting.
5 .6 . 1 General Administration. For acting upon matters not
directly related to a NCPA Project, the Primary Representatives, or their
designated Alternate Representatives, of each Participant shall have the right
to cast one (1) vote . Actions of the Facilities Committee shall be effective only
upon a majority vote of the Participants .
5 .6 .2 Relating to a NCPA Project. Each Primary
Representative, or designated Alternate Representative, to the Facilities
Committee shall have the right to cast one (1) vote with respect to actions
involving a NCPA Project in which such Project Participant has a Project
Participation Percentage. Actions of the Facilities Committee involving a
NCPA Project shall be effective and final upon a majority vote of the Project
Participants present, subject to the following exception:
a) Upon demand of any Project Participant in the involved
NCPA Project, at the meeting of the Facilities Committee,
the vote on any issue relating to such NCPA Project shall
be by Project Participation Percentage and sixty five
percent (65%) or greater affirmative vote shall be
required to take action.
5 .6 .3 Relating to More than One NCPA Project. For acting
upon matters relating to more than one NCPA Project, a separate vote of each
involved NCPA Project' s Participants shall be required, and the voting
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AMENDED AND RESTATED FACILITIES AGREEMENT
procedures specified in Section 5 .6 .2 shall apply. Actions of the Facilities
Committee involving more than one NCPA Project shall be effective only
upon an affirmative vote of the Project Participants for each affected NCPA
Project.
5 .6 .4 Lack of Quorum. If the Facilities Committee is unable to
_satisfy the quorum requirements of Section 5.5 prior to casting a vote
pertaining to matters involving general administration of this Agreement, a
NCPA Project, or more than one NCPA Project, the result of such vote shall
not be represented as an official vote of the Facilities Committee, but at the
request of one or more Participants a tally of the respective votes may be
collected, and presented to the Commission for informational purposes .
5 .6 .5 Matters Relating to TID. Notwithstanding any other
provision in this Agreement to the contrary; (1) TID shall be entitled to
designate a Primary Representative and Alternate Representative of TID to
the Facilities Committee for so long as TID shall remain a Project Participant
in Geothermal Generating Project Number 3, which representatives shall
have voting rights only with respect to those matters directly relating to said
project; and (2) amendments to this Agreement which do not impair the
rights of TID as provided in subsection (1) of this Section 5 .6 .5 shall not
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AMENDED AND RESTATED FACILITIES AGREEMENT
require the consent of TID, provided that TID shall be given written notice of
any amendment to this Agreement.
5 . 7 Responsibilities . The Facilities Committee shall provide
representation of Participants in connection with Project Agreements . The
Facilities Committee shall also review, make recommendations, or take other
actions pursuant to this Agreement concerning Project studies and other
activities or actions conducted by, or proposed by, NCPA in connection with
NCPA Projects or First Phase activities. Examples of such responsibilities
include but are not limited to:
(a) Review and make recommendations concerning Project studies
conducted by NCPA staff or consultants;
(b) Review and make recommendations concerning the proposed
acquisition of property, easements, and water rights by NCPA;
(c) Review and make recommendations concerning proposed NCPA
actions relative to obtaining federal, State, and local permits,
licenses, opinions and rulings, as well as any environmental
permits, allowances or GHG Compliance Instruments to the extent
permitted by law;
(d) Review and make recommendations concerning NCPA Project
designs;
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AMENDED AND RESTATED FACILITIES AGREEMENT
(e) Monitor the progress of each NCPA Project, and where
appropriate, recommend actions;
(f) Review and make recommendations concerning all plans,
procedures and contracts for the procurement of fuel, equipment,
materials and services related to NCPA Projects;
(g) Review, and make recommendations regarding the operation and
maintenance of NCPA Projects, including maintenance schedules
and operation plans;
(h) Review and make recommendations concerning remedial actions,
settlements of disputes, granting of relief, in accordance with the
dispute resolution provisions of this Agreement;
(i) Review and make recommendations regarding NCPA Project
billing procedures;
(j) Review and make recommendations concerning the Annual
Budget, and modifications thereto, proposed by the General
Manager; and
(k) Initiate, or review and make recommendations concerning
proposed amendments to this Agreement and to the Facilities
Schedules .
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AMENDED AND RESTATED FACILITIES AGREEMENT
5 .8 Goals and Objectives . The Facilities Committee may suggest
specific goals and objectives for NCPA concerning NCPA Projects, and shall
review and make recommendations concerning specific goals and objectives
proposed by the General Manager for NCPA Projects.
Section 6. Project Services, Development and Costs .
6 . 1 Scope of Services . NCPA shall act as project manager or agent that
operates the project on behalf of the Participants, and shall coordinate and
manage all phases of NCPA Project development. NCPA will operate, maintain,
schedule and perform billing for NCPA Projects as provided in this Agreement,
except as otherwise specified in a specific Project Agreement.
602 Designation of NCPA Projects . All Projects when so designated by
the Commission shall be known as NCPA Projects. All NCPA Projects subject to
the terms and conditions of this Agreement are listed in Facilities Schedule 2.
Facilities Schedule 2 shall be updated by NCPA upon the Commission' s
designation of a new NCPA Project.
6 .3 NCPA Project Development Phases. Any NCPA Project
undertaken by NCPA may proceed through one or more phases as provided in
this Section and Facilities Schedule 11 .
6 .3 . 1 First Phase. The "First Phase" of a Project consists of all
surveys and preliminary investigation work performed by NCPA regarding a
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AMENDED AND RESTATED FACILITIES AGREEMENT
proposed Project supported out of NCPA's general funds as required by the
JPA or provided voluntarily by one or more NCPA Members, pursuant to
Facilities Schedule 11, and prior to the time that the Commission declares it as
a NCPA Project. For the purpose of terminating the First Phase, the
Commission may declare a termination of investigations regarding the
proposed Project, or may declare the Project to be a NCPA Project by entering
into a Project Agreement with one or more NCPA Members desiring to
participate as indicated in Section 6.3 .2 or 6 .3 .3 .
6.3 .2 Second Phase. The "Second Phase" of a NCPA Project
consists of all work performed after one or more NCPA Members has signed
a Second Phase Agreement with NCPA for Project surveys, preliminary
investigations, study, design, or development, but before a Third Phase
Agreement for the NCPA Project becomes effective .
6 .3 .3 Third Phase. The "Third Phase" of a NCPA Project
consists of all work performed after one or more NCPA Members has
contracted with NCPA pursuant to a Third Phase Agreement to participate in
the financing, construction, operation, and maintenance, and/or rights to the
output, of the NCPA Project. Nothing herein prevents the combination of the
Second and Third Phases, if NCPA and the participating NCPA Members so
agree .
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AMENDED AND RESTATED FACILITIES AGREEMENT
Third Phase Agreements shall be written as "take-or-pay'
("hell-or-high-water" ) agreements to the greatest extent possible, so as to
insulate NCPA and all Members who are not Project Participants from
liability arising from the NCPA Project. Third Phase Agreements shall
obligate Project Participants to treat all Project Costs as operation and
maintenance expenses of their respective Electric Systems, and shall pledge
the Project Participant's obligation to raise electric rates and/or increase
Revenues upon demand of NCPA so as to pay such Project Costs.
6 .4 Project Participation. Any Member desiring to participate in a
NCPA Project by executing a Project Agreement must first become a Party to this
Agreement.
Member Participants may elect to finance and participate in the Second
Phase, Third Phase, or operation of a NCPA Project through execution of a
Project Agreement.
The Project Participation Percentage shall be based on participation in the
previous phase of the NCPA Project, unless the NCPA Project is not fully
subscribed, or as otherwise agreed. If the NCPA Project is not fully subscribed,
any unsubscribed portion of the NCPA Project shall be divided among Project
Participants electing to increase their share, in proportion to their original Project
21
AMENDED AND RESTATED FACILITIES AGREEMENT
Participation Percentages, unless otherwise unanimously agreed to by such
Project Participants .
Unless otherwise agreed, any Third Phase Agreement shall provide for
retirement of any preliminary financing and reimbursement of any expenditure
of Project Participants in the Second Phase of such NCPA Project, out of final
long-term financing of the NCPA Project or other funding method, including but
not limited to cash payment.
Unless otherwise agreed, those Participants not parties to the Second
Phase may participate in the Third Phase provided such Participant(s) agree to
assume, pro rata, all Second Phase obligations, that such Participants reimburse
. the Second Phase Participants for such pro rata share either as part of the long-
term financing of the NCPA Project or as otherwise agreed, and that all Second
Phase Project Participants agree to such participation in writing within forty-five
(45) Calendar Days after written notice of a desire to participate .
6 .5 Agreements. Agreements covering the several phases of NCPA
Projects are generally designated as follows .
(a) Second Phase Agreements or Licensing and Development
Agreements shall govern Second Phase NCPA Projects; and
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AMENDED AND RESTATED FACILITIES AGREEMENT
(b) Third Phase Agreements for Construction, Operation and
Financing, Participation Agreements or Power Purchase
Agreements shall govern Third Phase NCPA Projects; and
(c) Facilities Schedules established pursuant to this Agreement, Project
Agreements, including Operating Agreements, and other
agreements between NCPA and any Project Participant(s), shall
further govern operation and maintenance of NCPA Projects, after
completion.
6 .6 Project Development Procedures. Procedures, criteria, rules, and
standards relating to construction, operation and maintenance of NCPA Projects
shall be established by the Commission or the General Manager, as provided in
this Agreement and Project Agreements .
6 .7 Scheduling Coordination. Except as otherwise provided by a
separate agreement, NCPA shall provide Scheduling Coordination Services and
shall monitor, schedule, settle and dispatch capacity, energy and associated
attributes for delivery from each NCPA Project to the Project Participants in
accordance with this Agreement and the Amended and Restated Scheduling
Coordination Program Agreement. Therefore, each Project Participant shall
become a signatory to the Amended and Restated Scheduling Coordination
Program Agreement. Each Operating Entity shall coordinate with NCPA the
23
AMENDED AND RESTATED FACILITIES AGREEMENT
scheduling of its single or combined Project Participation Percentage share, of the
available capacity and energy from a NCPA Project, subject to all applicable
operating constraints, requirements and tariffs applicable to such activities,
including, but not limited to, the CAISO Tariff, unless otherwise specified in a
Project Agreement. Each Project Participant, or group of Project Participants.,
acting as an Operating Entity for the purpose of coordinating scheduling and
dispatching of their Project Participation Percentage share of a NCPA Project
with NCPA must comply with the scheduling criteria set forth in the Amended
and Restated Scheduling Coordination Program Agreement,
6 .8 Project Costs . All Project Costs attributed to a NCPA Project shall
be allocated to the Project Participants of said NCPA Project in accordance with
the provisions of the applicable Project Agreement, this Agreement, and/or the
Power Management and Administrative Services Agreement.
6 .9 Incidental Project Costs . Incidental costs that result from a NCPA
Project, or associated transmission or other facilities located within or directly
connected to the system of a Participant, will be treated as Project Costs and be
borne by the NCPA Project.
6. 10 Scheduling coordination Costs. All costs of Scheduling
Coordination Services, including, but not limited to, day-ahead scheduling costs,
schedule coordination costs, system control and load dispatch costs, real-time
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AMENDED AND RESTATED FACILITIES AGREEMENT
dispatch costs and settlement costs associated with monitoring, scheduling,
dispatching and settlement of each NCPA Project shall be treated as Project Costs
and be allocated to the Project Participants of said NCPA Project in accordance
with the provisions of the applicable Project Agreements, this Agreement, the
Power Management and Administrative Services Agreement, and/or the
Amended and Restated Scheduling Coordination Program. Agreement.
6 . 11 Administrative Services Costs . NCPA Projects are supported by
other common activities and services provided by NCPA. Administrative
Services Costs attributed to NCPA' s provision of such activities and services to a
NCPA Project shall be treated as a Project Cost and be allocated to each Project
Participant in accordance with the provisions of the applicable Project
Agreements, this Agreement, and/or the Power Management and Administrative
Services Agreement.
Section 7. Project Share Transfers, Sales, Assignments and Exchanges.
7. 1 Notice of Intent to Transfer Sell, Assign or Exchange Project
Participation Percentage Share or Associated Attributes . Prior to a Participant
entering into a transfer, sale, assignment or exchange of all or any portion of its
Project Participation Percentage share of a NCPA Projector its Project
Participation Percentage share of a specific NCPA Project attribute, a Participant
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AMENDED AND RESTATED FACILITIES AGREEMENT
shall provide written notice to the General Manager in accordance with Facilities
Schedule 14.
72 NCPA Project Participation Percentage Share Transfers, Sales,
Assignments or Exchanges by a Project Participant. Except where the applicable
Project Agreement provides otherwise, if a Participant desires to transfer, sell,
assign or exchange a portion, or its entire Project Participation Percentage share,
of a NCPA Project for a specific time interval, or permanently, and a Participant
directly makes the desired transfer, sale, assignment or exchange on its own
behalf, and does not request NCPA to arrange the desired transfer, sale,
assignment or exchange, such transfer, sale, assignment or exchange will not be
subject to the right of first refusal process contained in Section 7.3 .
7.3 NCPA Project Participation Percentage Share Transfers, Sales,
Assignments or Exchanges through NCPA. Except where the applicable Project
Agreement provides otherwise, if a Participant desires to transfer, sell, assign or
exchange a portion, or its entire Project Participation Percentage share, of a
NCPA Project for a specific time interval, or permanently, and a Participant
requests NCPA to consummate the desired transfer, sale, assignment or
exchange on behalf of the Participant, NCPA will use its best efforts in
accordance with this Section 7.3 to arrange the transfer, sale, assignment or
exchange of the portion of the Participant' s Project Participation Percentage share
26
AMENDED AND RESTATED FACILITIES AGREEMENT
of such NCPA Project on behalf of the Participant, following the right of first
refusal process listed below:
7.3. 1 Before NCPA may transfer, sell, assign or exchange a
Project Participation Percentage share to any person or entity other than a
Project Participant in the same NCPA Project, NCPA shall give all Member
Project Participants in the same NCPA Project the right to purchase or take
receipt of the share.
7.3 .2 Before NCPA may transfer, sell, assign or exchange a
Project Participation Percentage share to any person or entity other than a
Participant in this Agreement, NCPA shall give all Member Participants the
right to purchase or take receipt of the share .
7.3 .3 Before NCPA may transfer, sell, assign or exchange a
Project Participation Percentage share to any person or entity other than a
Member, it shall give all Members the right to purchase or take receipt of the
share.
7.3 .4 NCPA shall make all such transfers, sales, assignments or
exchanges on behalf of Participants on terms and conditions consistent with
the requirements of the applicable Project Agreement, and shall offer the
NCPA Project Participation Percentage share to NCPA Members and other
persons or entities on terms and conditions no more favorable than those on
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AMENDED AND RESTATED FACILITIES AGREEMENT
which it offered the share to the Project Participants in the same NCPA
Project.
7.4 Tax Exempt Status . All transfers, sales, assignments and exchanges
arranged by NCPA or directly undertaken by a Project Participant must be made
in accordance with the federal tax guidelines relating to private business use as
specified in Facilities Schedule 12. Notwithstanding any provision of this
Agreement to the contrary, NCPA shall not be obligated to arrange the transfer,
sale, assignment or exchange of a Participant' s Project Participation Percentage
share of a NCPA Project if such transfer, sale, assignment or exchange may, in
NCPA' s opinion, adversely affect the tax exempt status of any NCPA debt
obligation.
7.5 Facilities Committee Participation. Non-Member entities to whom
a Participant' s Project Participation Percentage share of a NCPA Project is
transferred, sold, assigned or exchanged are not thereby entitled to participate in
the activities of the Facilities Committee, including voting activities, other than as
members of the public, nor do such entities become a member of the Facilities
Committee .
7.6 Non-Participant Transferees. Neither NCPA nor a Participant
shall transfer, sell, assign or exchange a Participant' s Project Participation
Percentage share of a NCPA Project to a non-Participant Member without such
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AMENDED AND RESTATED FACILITIES AGREEMENT
non-Participant Member becoming a Participant to this Agreement prior to, or
concurrently with, the execution of such transfer, sale, assignment or exchange .
Section 8. Billing and Payments .
8 . 1 Invoices. NCPA will issue an invoice to each Participant for its
share of Project Costs, Administrative Services Costs, scheduling coordination
costs, and all other costs for services provided in accordance with this
Agreement. Such invoice may be either the All Resources Bill or separate special
invoice, as determined by NCPA. Such invoices will be made pursuant to the
requirements and procedures provided for in this Agreement, Project
Agreements, and all other applicable agreements . At NCPA' s discretion,
invoices may be issued to Participants using electronic media or physical
distribution.
8 .2 Payment of Invoices. All invoices delivered by NCPA (including
v
the All Resources Bill) are due and payable thirty (30) Calendar Days after the
date thereof; provided, however, that any amount due on a day other than a
Business Day may be paid on the following Business Day.
8 .3 Late Payments . Any amount due and not paid by a Participant in
accordance with Section 8.2 shall be considered late and bear interest computed
on a daily basis until paid at the lesser of (i) the per annum prime rate (or
29
AMENDED AND RESTATED FACILITIES AGREEMENT
reference rate) of the Bank of America NT&SA then in effect, plus two percent
(2%) or (ii) the maximum rate permitted by law.
8 .4 Billing Disputes. A Participant may dispute the accuracy of any
invoice issued by NCPA under this Agreement by submitting a written dispute
to NCPA, within thirty (30) Calendar Days of the date of such invoice;
nonetheless the Participant shall pay the full amount billed when due. If a
Participant does not timely question or dispute the accuracy of any invoice in
writing, the invoice shall be deemed to be correct. Upon review of a submitted
dispute, if an invoice is determined by NCPA to be incorrect, NCPA shall issue a
corrected invoice and refund any amounts that may be due to the Participant. If
NCPA and the Participant fail to agree on the accuracy of an invoice within
thirty (30) Calendar Days after the Participant has disputed it, the General
Manager shall promptly submit the dispute to the Commission for resolution. If
the Commission and the Participant fail to agree on the accuracy of a disputed
invoice within sixty (60) Calendar Days of its submission to the Commission, the
dispute may then be resolved under the mediation and arbitration procedures set
forth in Section 17 of this Agreement. Provided, however, that prior to resorting
to either mediation or arbitration proceedings, the full amount of the disputed
invoice must be paid.
8 .5 Billing/Settlement Data and Examination of Books and Records.
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AMENDED AND RESTATED FACILITIES AGREEMENT
8 .5 . 1 Settlement Data. NCPA shall make billing and
settlement data available to the Participants in the All Resources Bill, or other
invoice, or upon request. NCPA may also, at its sole discretion, make billing
and settlement support information available to Participants using electronic
media (e.g. electronic data portal) . Procedures and formats for the provision
of such electronic data submission may be established by the Commission
from time to time. Without limiting the generality of the foregoing, NCPA
may, in its reasonable discretion, require the Participants to execute a non-
disclosure agreement prior to providing access to the NCPA electronic data
portal.
8 .5 .2 Examination of Books and Records . Any Participant to
this Agreement shall have the right to examine the books and records created
and maintained by NCPA pursuant to this Agreement at any reasonable,
mutually agreed upon time .
Section 9. Cooperation and Further Assurances. Each of the Parties agree to
provide such information, execute and deliver any instruments and documents
and to take such other actions as may be necessary or reasonably requested by
any other Party which are consistent with the provisions of this Agreement and
which do not involve the assumption of obligations other than those provided
for in this Agreement, in order to give full effect to this Agreement and to carry
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AMENDED AND RESTATED FACILITIES AGREEMENT
out the intent of this Agreement. The Parties agree to cooperate and act in good
faith in connection with obtaining any credit support required in order to satisfy
the requirements of this Agreement.
Section 10. Participant Covenants and Defaults .
10 . 1 Each Participant covenants and agrees: (i) to make payments to
NCPA, from its Electric System Revenues, of its obligations under this
Agreement as an operating expense of its Electric System; (ii)' to fix the rates and
charges for services provided by its Electric System, so that it will at all times
have sufficient Revenues to meet the obligations of this Agreement, including the
payment obligations; (iii) to make all such payments due NCPA 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 exists; and (iv) to operate its Electric System,
and the business in connection therewith, in accordance with Good Utility
Practice.
10 .2 . 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 Participant
(the "Defaulting Participant" ) .
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AMENDED AND RESTATED FACILITIES AGREEMENT
(i) the failure of any Participant to make any payment in full to
NCPA when due, where such failure is not cured within thirty (30) Calendar
Days following receipt of a notice from NCPA demanding cure;
(ii) the failure of a Participant to perform any covenant or
obligation of this Agreement where such failure is not cured within thirty (30)
Calendar Days following receipt of a notice from NCPA demanding cure.
Provided, that this subsection shall not apply to any failure to make payments
specified by subsection 10 .2 (i));
(iii) if any representation or warranty of a Participant material to
the services provided hereunder shall prove to have been incorrect in any
material respect when made and the Participant does not cure the facts
underlying such incorrect representation or warranty so that the representation
or warranty becomes true and correct within thirty (30) Calendar Days of the
date of receipt of notice from NCPA demanding cure; or
(iv) 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.
10.3 Uncontrollable Forces. A Party shall not be considered to be in
default in respect of any obligation hereunder if prevented from fulfilling such
obligation by reason of Uncontrollable Forces. Provided, that in order to be
33
AMENDED AND RESTATED FACILITIES AGREEMENT
relieved of an Event of Default due to Uncontrollable Forces, a Party affected by
an Uncontrollable Force shall:
(i) first provide oral notice to the General Manager using telephone
communication within two (2) Business Days of the onset of the Uncontrollable
Force, and provide subsequent written notice to the General Manager and all
other Parties within ten (10) Business Days of the onset of the Uncontrollable
Force, describing its nature and extent, the obligations which the Party is unable
to fulfill, the anticipated duration of the Uncontrollable Force, and the actions
which the Party will undertake so as to remove such disability and be able to
fulfill its obligations hereunder; and
(ii) use due diligence to place itself in a position to fulfill its
obligations hereunder and if unable to fulfill any obligation by reason of an
Uncontrollable Force such Party shall exercise due diligence to remove such
disability with reasonable dispatch. Provided, that nothing in this subsection
shall require a Party to settle or compromise a labor dispute.
10 .4 Cure of an Event of Default. An Event of Default shall be deemed
cured only if such default shall be remedied or cured within the time periods
specified in Section 10.2 above, as may be applicable, provided, however, upon
request of the Defaulting Participant the Commission may waive the default at
its sole discretion, where such waiver shall not be unreasonably withheld .
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AMENDED AND RESTATED FACILITIES AGREEMENT
. 10 .5 Remedies in the Event of Uncured Default. Upon the occurrence of
an Event of Default which is not cured within the time limits specified in Section
10 .2, without limiting 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 NCPA may have against the
Defaulting Participant, NCPA may take any or all of the following actions:
(i) suspend the provision of services under this Agreement to such
Defaulting Participant;
(ii) demand that the Defaulting Participant provide further
assurances to guarantee the correction of the default, including the collection of a
surcharge or increase in electric rates, or such other actions as may be necessary
to produce necessary Revenues to correct the default; or
(iii) enforce all other rights or remedies available to it under any
Project Agreement in which the Defaulting Participant is a Project Participant,
10 . 6 Effect of Suspension.
10 .6 . 1 Generally. The suspension of this Agreement will not
terminate, waive, or otherwise discharge any ongoing or undischarged
liabilities, credits or obligations arising from this Agreement until such
liabilities, credits or obligations are satisfied in full.
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AMENDED AND RESTATED FACILITIES AGREEMENT
10 .6 .2 Suspension. If performance of all or any portion of this
Agreement is suspended by NCPA with respect to a Participant in accordance
with subsection 10 .5(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, or
other reasonable and necessary costs associated with such suspension and
any portion of the Project Costs, scheduling and dispatch costs, and
Administrative Services. Costs that were not recovered from such Participant
as a result of such suspension.
Section 11. Facilities Schedules.
11 . 1 Facilities Schedules . Facilities Schedules shall be established
relating to operations of NCPA Projects and administrative matters for the
implementation of this Agreement. All Facilities Schedules may be established,
repealed or amended by the Commission in accordance with this Agreement,
except as provided in Section 11 .3 with respect to Facilities Schedules applicable
to NCPA Projects for which a separate Operating Agreement exists. The
Commission shall consider any recommendation of the Facilities Committee.
11 .2 Scope of Facilities Schedules . Facilities Schedules include detailed
principles, descriptions and procedures for managing, operating, scheduling,
billing and settlement for the NCPA Projects .
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AMENDED AND RESTATED FACILITIES AGREEMENT
11 .3 Operating Agreements. For those NCPA Projects for which a
separate Operating Agreement has been or later is executed by NCPA and the
Project Parti cipants, the applicable Facilities Schedules will supplement the
Operating Agreement and shall include a note that an Operating Agreement
exists . To the extent a Facilities Schedule and Operating Agreement are
inconsistent, the Operating Agreement shall govern. An Operating Agreement,
whether or not it is appended to this Agreement as a Facilities Schedule, may
only be amended according to the terms contained therein.
Section 12. Other Agreements.
12. 1 Precedence of Agreements. Where there is any conflict between
this Agreement and the Joint Powers Agreement, a Project Agreement or a
NCPA Project Indenture of Trust, the provisions in the Joint Powers Agreement,
Project Agreement or NCPA Project Indenture of Trust shall control.
12.2 Member Services Agreement. The Member Service Agreements
between NCPA, the Cities of Alameda, Biggs, Gridley, Healdsburg, Lodi,
Lompoc, Palo Alto, Roseville, and Ukiah, and the Plumas-Sierra Rural Electric
Cooperative dated February 2, 1981, and the Member Service Agreement
between NCPA and the City of Santa Clara dated February 12, 1981, were
previously terminated and have no further force or effect. At such time as the
City of Redding may become a Participant, then this Agreement shall supersede
37
AMENDED AND RESTATED FACILITIES AGREEMENT
and replace the Member Service Agreement between NCPA and the City of
Redding dated February 12, 1981 .
Section 13. Potential Adverse Impact.
13 . 1 Notification. A Participant shall promptly notify the General
Manager in writing of any new or materially changed plan(s) for additions to,
retirements of, or changes in transmission or other facilities, which are subject to
the control of such Participant, including distribution level transmission or other
facilities, and which the Participant believes could affect the capacity or
deliverability of a NCPA Project located within the Participant's system. The
Facilities Committee shall review such plan(s) and may recommend remedial
actions .
Section 14. Term and Termination.
14. 1 Effective Date. This Agreement shall become effective on the first
day of the month after which it has been duly executed by all Participants, and
delivered to and executed by NCPA (the "Effective Date") . NCPA shall notify all
Participants in writing of the Effective Date.
14.2 Term and Termination. This Agreement shall continue in full
effect until terminated by consent of all Parties .
Section 15 . Admission and Withdrawal of Participants.
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AMENDED AND RESTATED FACILITIES AGREEMENT
15 . 1 Admission of a New Participant. Subsequent to the initial Effective
Date, a Member may become a Participant by executing this Agreement. Such
Member Participant will become a Participant effective on the date of its delivery
to NCPA of an executed counterpart of this Agreement.
15 .2 Withdrawal of Participants. Any Participant may withdraw from
this Agreement ("Withdrawing Participant") by: (1) submitting notice, in writing
to all Parties at least two (2) years in advance of the effective date of such
withdrawal, provided that such withdrawal shall only be effective on the last
day of a NCPA fiscal year and that the Withdrawing Participant has fully
satisfied all obligations it has incurred under this Agreement; and (2) divesting
its Project Participation Percentage share of all NCPA Projects through a
permanent transfer, sale, assignment or exchange, so that (i) the Withdrawing
Participant permanently disposes of its legal and contractual obligation to pay
for all Project Costs, and other related costs, including disposing of its obligations
specified in each respective Project Agreement and Project Indenture of Trust,
and (ii) the party (or parties) taking permanent transfer, sale, assignment or
exchange of the Withdrawing Participant' s Project Participation Percentage of a
NCPA Project is or becomes a Member Participant; provided, however, the
withdrawal requirements stated herein may be altered upon mutual agreement
between NCPA and the Withdrawing Participant whereby all un-discharged
39
AMENDED AND RESTATED FACILITIES AGREEMENT
liabilities, credits or obligations of the Withdrawing Participant, including any
contingent liabilities, credits or obligation, are fully satisfied . NCPA and the
Withdrawing Participant shall negotiate in good faith and shall cooperate in
reaching such mutual agreement. The two (2) year duration of the notice
requirement may be waived or reduced by the Commission in its sole discretion.
Withdrawal by any Participant shall not terminate this Agreement as to the
remaining Participants .
15 .3 No Effect on Prior Liabilities . Withdrawal by any Participant will
not terminate any ongoing or un-discharged liabilities, credits or obligations,
including any contingent liabilities, credits or obligations, resulting from this
Agreement until they are satisfied in full, or such Withdrawing Participant has
provided a mechanism acceptable to NCPA, for the satisfaction in full thereof.
A Withdrawing Participant shall not be obligated to compensate the
remaining Participants for loss of any benefits that would have accrued to the
remaining Participants if the Withdrawing Participant had continued its
participation. Nor shall the remaining Participants be obligated to compensate
the Withdrawing Participant for any benefits that accrue to the remaining
Participants because of the withdrawal. Reallocation of the costs and benefits of
continuing under this Agreement after a Participant has withdrawn shall not
give rise to any claim against a Withdrawing Participant by the remaining
40
AMENDED AND RESTATED FACILITIES AGREEMENT
Parties . Nor shall any of the remaining Parties be obligated to compensate the
Withdrawing Participant for any benefits that accrue to the remaining Parties
because of such a reallocation of costs and benefits.
Participant 15 .4 Associated Costs . A Withdrawing
P ant 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 liabilities, credits or obligations, including any contingent liabilities,
credits or obligations .
15 .5 Withdrawal of Participant from the TPA. Notwithstanding the
provisions of the Power Management and Administrative Services Agreement,
the Amended and Restated Scheduling Coordination Program Agreement, and
this Agreement, a Member Participant that terminates its membership in the joint
powers agency pursuant to the Joint Powers Agreement, but has not withdrawn ,
from this Agreement pursuant to Section 15 .2, shall continue its participation in
this Agreement as a non-Member Participant and remain obligated and liable to
pay its Project Participation Percentage share of all Project Costs, and other
related costs attributed to a NCPA Project in which the non-Member Participant
is a Project Participant, as specified in the applicable Project Agreements, the
Power Management and Administrative Services Agreement, the Amended and
41
AMENDED AND RESTATED FACILITIES AGREEMENT
Restated Scheduling Coordination Program Agreement, and this Agreement,
provided, however, the non-Member Participant is thereby no longer a Member
or a member of the Facilities Committee, and is not entitled to participate in the
activities of the Commission or the Facilities Committee, including voting
activities, other than as a member of the public. A non-Member Participant shall
remain obligated to take Scheduling Coordination Services provided by NCPA
for all NCPA Projects in which the non-Member Participant is a Project
Participant notwithstanding the fact that such non-Member Participant may no
longer be a signatory to the Amended and Restated Scheduling Coordination
Program Agreement.
Section 16. Reports and Records .
16 .1 Reports to Participants . NCPA shall prepare and make available to
each Participant the reports listed in Facilities Schedule 13 . The frequency of
distribution shall be as specified in Facilities Schedule 13 .
16.2 Records . Each Party shall keep such records as may be reasonably
required by the General Manager to carry out his or her duties pursuant to
Section 4.3 of this Agreement, and shall furnish to the General Manager such
records, reports, and other information as he or she may reasonably require.
16 .3 Reports to Other Agencies. NCPA will submit such reports and
records which are required or may be required by the California Energy
42
AMENDED AND RESTATED FACILITIES AGREEMENT
Commission, FERC, NERC, WECC, OSHA or such other local, State, regional or
federal agencies, as such reports and records are required for NCPA to fulfill its
obligations under this Agreement.
Section 17. Settlement of Disputes and Arbitration. The Parties agree to
make best efforts to settle all disputes among themselves connected with this
Agreement as a matter of normal business under this Agreement. The
procedures set forth in Section 10 of the Power Management and Administrative
Services Agreement shall apply to all disputes that cannot be settled by the
Participants themselves; provided, that the provisions of Section 8 .4 shall first
apply to all disputes involving invoices prepared by NCPA.
Section 18. Miscellaneous.
18 . 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. Confidential or trade secret information shall be
marked or expressly identified as such.
If a Party ("Receiving Party" ) receives a request from a Third Party for
access to, or inspection, disclosure or copying of, any of the other Party' s (the
"Supplying Party") confidential data or information ("Disclosure Request" ), then
the Receiving Party shall provide notice and a copy of the Disclosure Request to
43
AMENDED AND RESTATED FACILITIES AGREEMENT
the Supplying Party within three (3) Business Days of receipt of the Disclosure
Request. Within three (3) Business Days of receipt of such notice, the Supplying
Party shall provide notice to the Receiving Party either.
(i) that the Supplying Party believes there are reasonable legal
grounds for denying or objecting to the Disclosure Request, and the Supplying
Party requests the Receiving Party to deny or object to the Disclosure Request
with respect to identified confidential 'information. In such case, the Receiving
Party shall deny the Disclosure Request and the Supplying Party shall defend the
denial of the Disclosure Request at its sole cost, and it shall indemnify the
Receiving Party for all costs associated with denying or objecting to the
Disclosure Request. Such indemnification by the Supplying Party of the
Receiving Party shall include all of the Receiving Party' s costs reasonably
incurred with respect to denial of or objection to the Disclosure Request,
including but not limited to costs, penalties, and the Receiving Party' s attorney' s
fees; or
(ii) the Receiving Party may grant the Disclosure Request without
any liability by the Receiving Party to the Supplying Party.
18.2 Indemnification and Hold Harmless . Subject to the provisions of
Section 18 .4, each Participant agrees to indemnify, defend and hold harmless
NCPA and its Members, including their respective governing boards, officials,
44
AMENDED AND RESTATED FACILITIES AGREEMENT
officers, agents, and employees, from and against any and all claims, suits, losses,
costs, damages, expenses and, liability of any kind or nature, including
reasonable attorneys' fees and the costs of litigation, including experts, to the
extent caused by any acts, omissions, breach of contract, negligence (active or
passive), gross negligence, recklessness, or willful misconduct of that Participant,
its governing officials, officers, employees, subcontractors or agents, to the
maximum extent permitted by law.
18 .3 Several Liabilities . Except as otherwise provided herein or in an
applicable Project Agreement, no Participant shall be liable under this
Agreement for the obligations of any other Participant, each Participant shall be
solely responsible and liable for performance of its obligations under this
Agreement and the obligation of each Participant under this Agreement is a
several obligation and not a joint obligation with those of the other Participants .
18 .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
45
AMENDED AND RESTATED FACILITIES AGREEMENT
SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER
DAMAGES AND REMEDIES ARE HEREBY WAIVED . IN NO EVENT SHALL
NCPA OR ANY PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS,
ASSIGNS, REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR
EMPLOYEES BE LIABLE FOR ANY LOST PROFITS, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR 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.
46
AMENDED AND RESTATED FACILITIES AGREEMENT
18 .5 Waiver. No waiver of the performance by a Party of any obligation
under this Agreement with respect to any default or any other matter arising in
connection with this Agreement shall be effective unless given by the
Commission. Any such waiver by the Commission in any particular instance
shall not be deemed a waiver with respect to any subsequent performance,
default or matter.
18 .6 Division of Responsibility. Neither the General Manager, the
Parties to this Agreement, nor an entity acting on behalf of the Parties, shall be
responsible for the transmission, control, use, or application of capacity and
I
energy provided under this Agreement or the Facilities Schedules attached
hereto on the receiving Party's side of such Party' s point of interconnection and
shall not, in any event, be liable for damage or injury to any person or property
whatsoever, arising, accruing, or resulting from, in any manner, the receiving,
transmission, control, use, application, or distribution by NCPA, or the
i
Participants, or any Third Party acting on behalf of NCPA or the Parties, of said
capacity and energy on the receiving Party's side of such Party' s point of
i
interconnection.
18 .7 Amendments .
1
i
18 .7.1 Amendments in General. Except where this Agreement
specifically provides otherwise, this Agreement may be amended only by
47
AMENDED AND RESTATED FACILITIES AGREEMENT
written instrument executed by the Parties with the same formality as this
Agreement.
18 .7.2 Approval and Amendment of Facilities Schedules. Any
addition to, amendment to or termination of the Facilities Schedules attached
hereto shall take effect after being approved by the Commission in a manner
consistent with the voting procedures set forth in Section 3 .6 of this
Agreement, without the requirement of an approval of the individual
Participants' governing bodies.
18 .8 Assignment of Agreement.
18 .8 . 1 Binding Upon Successors. This Agreement, including the
Facilities Schedules, shall inure to the benefit of and shall be binding upon the
respective successors and assignees of the Parties to this Agreement.
18 .8 .2 No Assignment. This Agreement, nor any interest
herein, shall be transferred or assigned by a Party hereto except with the
consent in writing of the other Parties hereto, where such consent shall not be
unreasonably withheld . Without limiting the foregoing, this Agreement shall
not be assigned by Plumas-Sierra Rural Electric Cooperative without the
approval in writing of the Administrator of the Rural Electrification
Administration Utilities Service.
48
AMENDED AND RESTATED FACILITIES AGREEMENT
18 .9 . 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.
18 . 10 Governing Law. This Agreement shall be interpreted, governed by,
and construed under the laws of the State of California.
18 .11 Headings. All indices, titles, subject headings, section titles and
similar items are provided for the purpose of convenience and are not intended
to be inclusive, definitive, or affect the meaning of the contents of this Agreement
or the scope thereof.
18. 12 Notices . Any notice, demand or request required or authorized by
this Agreement to be given to any Party shall be in writing, and shall either be
personally delivered to a Participant' s Commissioner or Alternate, or in the case
of TID their Primary Representative or Alternate Representative, and to the
General Manager, or shall be transmitted to the Participant and the General
Manager at the addresses shown on the signature pages hereof. The designation
of such addresses may be changed at any time by written notice given to the
49
AMENDED AND RESTATED FACILITIES AGREEMENT
General Manager who shall thereupon give written notice of such change to each
Participant. All such notices shall be deemed delivered when personally
delivered, two (2) Business Days after deposit in the United States mail first class
postage prepaid, or on the first Business Day following delivery through
electronic communication.
18 . 13 Warranty of Authority. Each Party represents and warrants that it
has been duly authorized by all requisite approval and action to execute and
deliver this Agreement and that this Agreement is a binding, legal, and valid
agreement enforceable in accordance with its terms. Upon execution of this
Agreement, each Participant shall deliver to NCPA a resolution of the governing
body of such Participant evidencing approval of and authority to enter into this
Agreement.
18 . 14 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.
50
AMENDED AND RESTATED FACILITIES AGREEMENT
18 . 15 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.
18 . 16 Attorneys' Fees. If a Party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provisions of
this Agreement, each Party shall bear its own fees and costs, including attorneys'
fees, associated with the action.
18 .17 Counsel Representation. Pursuant to the provisions of California
Civil Code Section 1717 (a), each of the Parties were represented by counsel in
the negotiation and execution of this Agreement and no one Party is the author
of this Agreement or any of its subparts. Those terms of this Agreement which
dictate the responsibility for bearing any attorney' s fees incurred in arbitration,
litigation or settlement in a manner inconsistent with the provisions of Section
18 .2 were intentionally so drafted by the Parties, and any ambiguities in this
Agreement shall not be interpreted for or against a Party by reason of that Party
being the author of the provision.
18 . 18 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended by the Parties, nor shall any provision of this Agreement
be deemed or construed by the Parties, by any third person or any Third Parties,
51
AMENDED AND RESTATED FACILITIES AGREEMENT
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.
52
AMENDED AND RESTATED FACILITIES AGRIMMENT
IN WITNESS WHEREOF, NCPA and each Participant have, by the
signature of its duly authorized representative shown below, executed and
delivered a counterpart of this Agreement.
NORTHERN CALIFORNIA CITY OF ALAMEDA
POWER AGENCY 2000 Grand Street -
651 Commerce Drive P. O. Box H
Roseville, CA 95678 Alameda, CA 94501
C .,.
By: � By:
Title : 44 Title :
Date : 2Z 2 ZZq= Date :
Approved as to form: Approved as to form:
j
B By:
Its : General Counsel Its: City Attorney
Date : Ic E471f Date :
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 : City Attorney Its : City Attorney
Date : Date :
53
AMENDED AND RESTATED FACILITIES AGREEMENT
IN WITNESS WHEREOF, NCPA and each Participant have, by the
signature of its duly authorized representative shown below, executed and
delivered a counterpart of this Agreement.
NORTHERN CALIFORNIA CITY OF ALAMEDA
POWER AGENCY 2000 Grand Street
651 Commerce Drive P .O. Box H
Roseville, CA 95678 Alameda, CA 94501
! �v
By: By:
Title: Title: _lid r6 IN C431 X11 1%1106 '12-
Date : Date:6lel�114-
Approved as to form : Approved as to form:
By : By : 2
Its : General Counsel Its : City Attorney
Date: Date :
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 : City Attorney Its : City Attorney
Date: Date :
53
AMENDED AND RESTATED FACILITIES AGREEMENT
IN WITNESS WHEREOF, NCPA and each Participant have, by the
signature of its duly authorized representative shown below, executed and
delivered a counterpart of this Agreement.
NORTHERN CALIFORNIA CITY OF ALAMEDA
POWER AGENCY 2000 Grand Street
651 Commerce Drive P.O. Box H
Roseville, CA 95678 Alameda, CA 94501
By: By:
Title: Title:
Date : Dater
Approved as to form: Approved as to form:
By: By:
Its: General Counsel Its: Ci!y Attorney
Date ,
CITY OF BIGGS CITY OF GRIDLEY
465 " C" Street 685 Kentucky Street
Biggs, CA 95917 Gridley, CA 95948
By: By:
Title : ' Title:
Date : `�� Date :
Approv / s o form: Approved as to form:
r <, _, r By:
By:
Its: Citv Attorney Its: City Attorney
Date : �� l ` Date :
53
AMENDED AND RESTATED FACILITIES AGREEMENT
IN WITNESS WHEREOF, NCPA and each Participant have, by the
signature of its duly authorized representative shown below, executed and
delivered a counterpart of this Agreement.
NORTHERN CALIFORNIA CITY OF ALAMEDA
POWER AGENCY 2000 Grand Street
651 Commerce Drive P. O. Box H
Roseville, CA 95678 Alameda, CA 94501
By: By:
Title: Title:
Date : Date:
Approved as to form: Approved as to form:
By: By:
Its : General Counsel Its : City Attorney
Date: Date:
CITY OF BIGGS CITY OF GRIDLEY
465 "C" Street 685 Kentucky Street
Biggs, CA 95917 Gridley, CA 95 48
By: By:
Title : Title: G�
Date: Date: / 1111
Approved as to form : Ap loved as to
By: By:
Its : City Attorney Its : City Attorne
Date: Date: L' h I Li-
53
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF HEALDSBURG CITY OF LODI
401 Grove Street 221 W. Pine Street
ealdsburg, CA 9 48 Lodi, CA 95240
L
Y*. JV e ettus By;
Title : LkitY Manager _ Title:
Date: h` �?z - l ` Date:
Approved -t6 or Approved as to form:
G
By; Da id Warner By;
Its: City Attorney Its: City Attorney
Date : Date:
CITY OF LOMPOC CITY OF OAKLAND, acting
100 Civic Center Plaza by and through its
Lompoc, CA 93436 Board of Port Commissioners
530 Water Street
Oakland, CA 94607
By: By:
Title : Title :
Date : Date:
Approved as to form: Approved as to form:
By: By:
Its : City Attorney Its: Port General Counsel
Date : Date:
54
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF HEALDSBURG CITY OF LODI 7V61
401 Grove Street 221 W. Pine Street
Healdsburg, CA 95448 Lodi, CA 95240 JohI Olson
City Clerk tA
By: By: phen Schwabauer
Title: Title: Interim City Manager
Date : Date:
Approved as to form: Approved as to form:
$y; $ D . Magdich
Its: Citv Afire torney Its: Citv Attorney
Date: Date:
CITY OF LOMPOC CITY OF OAKLAND, acting
100 Civic Center Plaza by and through its
Lompoc, CA 93436 Board of Pori Commissioners
530 Water Street
Oakland, CA 94607
By: By:
Title : Title:
Date : Date:
Approved as to form: Approved as to form:
By: By:
Its: City Attorney Port General Counsel
Date : Date:
54
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF HEALDSBURG CITY OF LODI
401 Grove Street 221 W. Pine Street
Healdsburg, CA 95448 Lodi, CA 95240
By: By:
Title : Title:
Date: Date:
Approved as to form: Approved as to form:
By: By:
Its : City Attorney Its : City Attorney
Date: Date:
CITY OF LOMPOC CITY OF OAKLAND, acting
100 Civic Center Plaza by and through its
Lompoc, CA 93436 Board of Port Commissioners
530 Water Street
Oakland, CA 94607
By: p �ti By:
Title : Title:
Date: _� Date :
Approved as to form: Approved as to form:
/"By: By:
Its : City Attorney Its : Port General Counsel
Date : Ayri l �� , 0� Date:
54
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF HEALDSBURG CITY OF LODI
401 Grove Street 221 W . Pine Street
Healdsburg, CA 95448 Lodi, CA 95240
By: By:
Title: Title:
Date : Date:
Approved as to form: Approved as to form:
By : By:
Its : City Attorney Its : City Attorney
Date: Date :
CITY OF LOMPOC CITY OF OAKLAND, acting
100 Civic Center Plaza by and through its
Lompoc, CA 93436 Board of Port Commissioners
530 Water Street '
Oakland, CA 94607
By: Bya
Title : Title: 4!� ' �we. jo d .
Date : Date : - 1'1 z `-/
Approved as to form: Approved as to form:
By : By:
Its : City Attorney Its: tats a .
r
Date : Date:
54
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF PALO ALTO PLUMAS-SIERRA RURAL
250 Hamilton Avenue ELECTRIC COOPERATIVE
Palo Alto, CA 301 73233 Highway 70
Portola, CA 96122
A�
By : By:
Title : Title :
Date: Date :
Approved as to form: Approved as to form:
By:
'Its: City Attorney Its: General Counsel
Date : c'_r � C> l ' Date :
i 5
CITY OF ROSEVILLE CITY OF SANTA CLARA
311 Vernon Street 1500 Warburton Avenue
Roseville, CA 95678 Santa Clara, CA 95050
By : By:
Title : Title :
Date : Date :
Approved as to form: Approved as to form :
By : By:
Its: City Attorney Its : City Attorney
Date,
55
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF PALO ALTO PLUMAS-SIERRA RURAL
250 Hamilton Avenue ELECTRIC COOPERATIVE
Palo Alto, CA 94301 73233 Highway 70
Portola, CA. 96122
By: By:
Title: Title:
Date: D Vo 14, J
Approved as to form: Al r f7e as to r
By By ichak kergara
Its : City Attorney Its: General Counsel
Date: Date: June 27, 2014
CITY OF ROSEVILLE CITY F SANTA CLARA
311 Vernon Street 1500 arburton Avexiue
Roseville, CA 95678 Saz-ita Clara, CA 95050
By: By:
Title: Title:
Date: Date:
Approved as to form: Approved as to form:
By: By
Its : Citv Attorney Its : City Attorney
Date• Date:
55
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF PALO ALTO PLUMAS-SIERRA RURAL
250 Hamilton Avenue ELECTRIC COOPERATIVE
Palo Alto, CA 94301 73233 Highway 70
Portola, CA 96122
By: By:
Title: Title:
Date : Date :
Approved as to form: Approved as to form:
By: By:
Its: City Attorney Its: General Counsel
Date: Date : _
CITY OF ROSEVILLE CITY OF SANTA CLARA
311 Vernon Street 1500 Warburton Avenue
Roseville, CA 95678 Santa Clara, CA 95050
By: lRo Jensen By:
Title : 3w'Ilw eirf MhN-'L-, 6ll Title :
Date: April 17 , 2014 Dater
Approv as to form: Approved as to form:
y
BAe : Apri B , yless By:
It lo Ad Its: City Attorney
D � , 2014 Date:
55
AMENDED AND RESTATED FACILITIES AGREEMENT
CITY OF PALO ALTO PLUMAS-SIERRA RURAL
250 Hamilton Avenue ELECTRIC COOPERATIVE
Palo Alto, CA 94301 73233 Highway 70
Portola, CA 96122
By: By:
Title: Title:
Date: Date:
Approved as to form: Approved as to form:
By : By:
Its: City Attorney Its: General Counsel
Date: Date:
CITY OF ROSEVILLE CITY OF SANTA CLARA
311 Vernon Street 1500 Warburton Avenue
Roseville, CA 95678 Santa Clara, CA 95050
By: By. e
Title : Title: C t ' y �,Nt
Date: Date:
Approved as to form: Approved as to fo n:
gn)I.
u c v
By: By :
Its : City Attorney Its : City Attorney �� 4
Date: Date:
C-'
55
AMENDED AND RESTATED FACILITIES AGREEMENT
SAN FRANCISCO BAY AREA RAPID CITY OF UKIAH
TRANSIT DISTRICT 300 Seminary Avenue
300 Lakeside Drive, 161" Floor Ukiah, CA 95482
Oakland, CA 94612
By: j n By:
Title: — Title :
Date : 67 � e,Y owl fr jeI✓ Date:
Approved as to form: Approved as to form:
By: Marco Gomez By :
Its : Attorney Its : City Attorney
Date: Date:
TURLOCI< IRRIGATION DISTRICT
333 E . Canal Drive
Turlock, CA 95380
By:
Title :
Date :
Approved as to form:
By:
Its : General Counsel
Date,
62
AMENDED AND RESTATED FACILITIES AGREEMENT
SAN FRANCISCO BAY AREA RAPID CITY OF UKIAH
TRANSIT DISTRICT 300 Seminary Avenue
300 Lakeside Drive, 161h Floor Ukiah, CA 95482
Oakland, CA 94612 } /%
By: By: ane Chambers _
Title: it Cit Manager
Date. Date: vim°
Approved as to form: Approved as to form:
By: By: avid Rapport
Its: General Counsel Its: City Attorney ;
Date: Date:
/1
TURLOCK IRRIGATION DISTRICT
333 E. Canal Drive
Turlock, CA 95380
By:
Title:
Date:
Approved as to form:
By:
Its: General Counsel
Date:
56
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 1
LIST OF PARTICIPANTS
The following is a list of the Participants who are signatory to this Agreement:
City of Alameda
City of Biggs
City of Gridley
City of Healdsburg
City of Lodi
City of Lompoc
City of Oakland, acting by and through its Board of Port Commissioners
City of Palo Alto
City of Roseville
City of Santa Clara
City of Ukiah
Plumas-Sierra Rural Electric Cooperative
San Francisco Bay Area Rapid Transit District
Turlock Irrigation District
1
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 1
FACILITIES SCHEDULE 2
NCPA PROJECTS
Each of the following Projects have been designated by the Commission as a
NCPA Project, therefore subject to the terms and conditions of this Agreement:
North Fork Stanislaus River Hydroelectric Development Project
Combustion Turbine Project Number One
Combustion Turbine Project Number Two-Unit One
NCPA Geothermal Generating Unit #2 Project
Geothermal Generating Project Number 3
Seattle City Light Capacity and Energy Exchange Third Phase Agreement
Amended NCPA Green Power Project Third Phase Agreement
â– NCPA Solar PV Project
1
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 2
FACILITIES SCHEDULE 3
BILLING PROCEDURE AND NCPA PROJECT COST DETERMINANTS
Section 1. Billing Procedure . NCPA will issue invoices to each Participant
for its allocated share of Project Costs, Administrative Services Costs, scheduling
coordination costs, and all other costs for services provided in accordance with
this Agreement. Such invoices may be either the All Resources Bill or separate
special invoice, as determined by NCPA. Notwithstanding the provisions of this
Agreement, NCPA shall issue invoices to each Participant as further described in
this Facilities Schedule 3 .
161 Pre-Billing. Prior to each month, NCPA shall issue an invoice to
each Participant for its estimated share of Project Costs, Administrative Services
Costs, scheduling coordination costs, and all other costs for services provided in
accordance with this Agreement. Estimated costs shall be invoiced in advance
and are based on, but are not limited to, budgets, schedules, metering data,
forecasted net purchases or sales of energy, forecasted congestion costs and
estimates of power and related attribute prices, and charges from the CAISO
pursuant to the Amended and Restated Scheduling Coordination Program
Agreement.
1 .2 Adiustments and True-ups . From time to time, NCPA shall review
and compare its estimate of costs as set forth in the Annual Budget against actual
1
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 3
costs incurred during the same period of time. In the event estimated costs
invoiced to Participants substantially deviate from actual costs incurred by
NCPA, NCPA shall adjust the amounts to be invoiced or credited to the
Participants in subsequent billings, in the respective cost category, for the
balance of the Fiscal Year, to ensure NCPA collects sufficient funds to cover all
budgeted and actual costs.
A substantial deviation from cost estimates approved in the Annual
Budget means a permanent variation from a major objective or parameter of plus
or minus five percent (5%) or more, unless otherwise provided for in the Annual
Budget. A permanent variation is one that is not expected to reverse at a later
date during the same Fiscal Year.
1 .3 Annual Billing Truce At the end of each Fiscal Year, as soon as
actual data is available and the annual year-end audit is complete, NCPA shall
true-up all invoices based on actual cost data and actual billing determinates.
The amounts calculated to be over or under collected from the Participants
during the Fiscal Year, measured against actual costs, will be debited or credited
to Participants as follows.
(i) a lump sum on future invoices to the Participant;
(ii) applied to a Participant' s general operating reserve account;
or
2
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 3
as otherwise directed by the Commission.
Section 2. NCPA Project Costs and Billing. Project Costs, Administrative
Services Costs, scheduling coordination costs, and all other costs associated with
services provided pursuant to this Agreement shall be reflected in the Annual
Budget. The NCPA Project budgets included as part of the Annual Budget shall
categorize costs as fixed and variable . Fixed costs are those Project Costs
incurred that are not dependent on the output of the generating unit or plant
(e.g., debt service and operating labor expenses) . Variable costs are those Project
Costs which are dependent on the electrical output of the generating unit or
plant (e.g., fuel costs and operations and maintenance costs) .
291 Cost Recovery. NCPA shall invoice monthly one-twelfth (1/12) of
the budgeted costs for each NCPA Project to the Participants based on each
Participant' s Project Participation Percentage share; provided, however, costs
associated with fuel, GHG Compliance Instruments, or other costs that are
subject to market volatility and which may change substantially from month to
month during the Fiscal Year shall be invoiced based on actual costs for the
respective month, or NCPA' s best estimate of such costs if actual costs are not
known at the time the invoice is issued to the Participants. When estimated fuel,
GHG Compliance Instruments or other costs are used, final adjustments for
3
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 3
actual costs shall be made in the annual billing true-up as provided in Section 1
of the Facilities Schedule 3 .
Section 3. Uniform System of Accounts. NCPA shall keep accurate records
and accounts for all costs attributed to each NCPA Project and the services
provided under this Agreement. All Project Costs shall be kept in general
accordance with the Uniform System of Accounts ("USofA" ) for electric public
utilities and licensees prescribed by FERC.
4
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 3
FACILITIES SCHEDULE 4
SHARED FACILITIES AND COST SHARING
Section 1. Scope. Project Participants desire to equitably share and use
facilities and equipment common to two or more NCPA Projects, including the
Combustion Turbine Project No. 1, Combustion Turbine Project No . 2 and LEC,
for the purpose of reducing costs and improving efficiencies . Such Shared
Facilities and the methods for how costs are to be shared among Project
Participants shall be included in this Facilities Schedule 4.
Section 2. Definitions .
2.1 Definitions . Unless defined in this Facilities Schedule 4, all terms
used in this Facilities Schedule 4 with initial capitalization shall have the same
meaning as those contained in Section 1 of this Agreement.
2. 1 . 1 "PPC means the Participant Committee established in
accordance with Section 8 of the Lodi Energy Center Power Sales
Agreement.
2. 1 .2 "Shared Facilities" means the facilities as documented in
this Facilities Schedule 4 and which may be revised from time to time based
upon recommendations and approvals of the Facilities Committee, the PPC
and the Commission.
1
AMENDED AND RESTATED FACILITIES AGREEMENT .
FACILITIES SCHEDULE 4
Section 3. Toint Use of Facilities. NCPA and Project Participants may use,
operate and maintain the Shared Facilities, according to the terms and conditions
of this Agreement and the percentage allocation of costs associated with such
Shared Facilities detailed in this Facilities Schedule 4. Nothing in this Agreement
may be construed to create a lease, sale or other disposition of real or personal
property of NCPA.
Section 4. Use of Shared Facilities . As applicable, the Combustion Turbine
Project No . 1, Combustion Turbine Project No. 2 and LEC projects will utilize the
Shared Facilities and equipment as listed in this Facilities Schedule 4. In addition
thereto, the Combustion Turbine Project No . 1, Combustion Turbine Project No .
2 and LEC projects and personnel will have.
(i) vehicular and pedestrian access rights;
(ii) use of Shared Facilities for the purpose of locating, accessing,
operating, maintaining, repairing and replacing pipelines;
(iii) access for locating, accessing, operating, constructing,
maintaining, repairing and replacing the steam pipeline(s), natural gas
pipeline(s) and any associated equipment currently on the Combustion Turbine
Project No . 2 and/or LEC sites or to be installed in the future;
(iv) access to the office building currently on the Combustion
Turbine Project No. 2 site for the installation, use, maintenance, repair and
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 4
replacement of process control systems and related computer hardware
associated with the Combustion Turbine Project No . 1, Combustion Turbine
Project No. 2 and LEC projects;
(v) access to the Shared Facilities for the purpose of locating,
operating, repairing and replacing such improvements as may be necessary from
time to time; and
(vi) personnel associated with Combustion Turbine Project No. 1,
Combustion Turbine Project No . 2 and LEC shall provide reasonable notice, each
to the other, regarding any work to be conducted consistent with the above.
Section 5 . Shared Facilities Cost Allocation. Shared Facilities costs shall be
allocated among the Combustion Turbine Project No. 1, Combustion Turbine
Project No . 2 and LEC in one or more of the following ways, pursuant to this
Facilities Schedule 4.
(i) headcount allocated to each project;
(ii) project capacity;
(iii) actual usage of Shared Facilities; or
(iv) such other allocation methodology as may be determined in
this Facilities Schedule 4.
The Shared Facilities cost allocation set forth in this Facilities Schedule 4
may be revised from time to time when operational conditions or factors used for
3
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 4
the cost allocation(s) change. In such event, the PPC and the Facilities
Committee will provide their respective recommendations and approvals to the
Commission regarding any proposed modifications to the allocations set forth in
this Facilities Schedule 4. Until such revisions as proposed by the PPC and the
Facilities Committee are approved by the Commission, the cost allocation(s) set
forth in this Facilities Schedule 4 will be used to allocate Shared Facilities costs
among the Combustion Turbine Project No . 1, Combustion Turbine Project No . 2
and LEC projects, irrespective of the basis used for cost allocation as listed in this
Facilities Schedule 4, including those allocations that are based on estimated
usage.
Section 6. Other Costs. The Combustion Turbine Project No . 1, Combustion
Turbine Project No . 2 and LEC projects will each be solely responsible for the
payment of any and all taxes, insurance, utilities, maintenance, improvements
and labor directly attributable to the construction, operation and maintenance of
the respective projects . The Combustion Turbine Project No. 1, Combustion
Turbine Project No . 2 and LEC projects must pay the Shared Facilities cost
allocations imposed on such projects as detailed in this Facilities Schedule 4.
Section 7. Sale of Shared Facilities. In the event NCPA seeks to sell any of
the Shared Facilities the Combustion Turbine Project No. 1, Combustion Turbine
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 4
Project No . 2 and LEC projects must be given reasonable notice and an
opportunity to purchase such Shared Facilities.
Section 8. Shared Facilities and Allocation
Cost Allocation to NCPA Project %
Facility CT1 CT2 LEC Total
MW Capacity 75 .0 49.9 280.0 404.9
Capacity CT1, CT2, LEC % 18952% 12.32% 69015% 100. 00%
Capacity CT2, LEC % 0000% 15. 13% 84.87% 100.00%
Headcount for FT&2012 3.0 43 17.5 2500
Headcount % CT1, CT2, LEC 1100% 18.00% 70900% 100. 00%
Cooling Tower Usage CT2/LEC (based on
calculation below) 0600% 0000% 100000% 100600%
Vehicle Usage CT1/CT2/LEC (based on
estimated usage) 90900% 5 .00% 5 .00% 100.00%
Anhydrous Ammonia System
Fixed O&M, Capital (based on Capacity
CT2, LEC %) 0000% 15 .13% 84.87% 100. 00%
Variable O&M CT2/LEC (based on actual
Ammonia usage) Usage Usage
Administration / Warehouse Building
O&M, Capital (based upon Headcount %
CT1, CT2, LEC) 12.00% 18000% 70.00% 100.00%
Fire System
O&M, Capital (based on Capacity CT2,
LEC %) 0000% 15613% 84.87% 100.00%
230 KV Switchyard (Common Equip)
O&M, Capital (based on Capacity CT2,
LEC %) 0.00% 15 . 13% 84.87% 100.00%
Tooling and Special Equipment
(based on Headcount % CT1, CT2, LEC) 1100% 18000% 70 .00% 100.00%
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Cooling Tower/Closed Cooling Water/Injection Well Systems
O&M, Capital (based on Cooling
Tower Usage CT2/LEC) 0400% 0600% 100000% 100000%
Vehicle Usage
O&M, Capital (based on Vehicle
Usage CT1/CT2/LEC) 90000% 5.00% 5 .00% 100. 00%
Cooling Tower CT2/LEC Usage Calculation:
Inputs
Sh = Number of Operating Hours of CT2
Lh = Number of Operating Hours of LEC
Constants
Sr = Design flowrate for CT2 cooling water = 4,416 GPM
Lr = Design flowrate for LEC cooling water = 64,584 GPM
Formula
CT2 Percentage = S % _ (Sh * Sf) * 100
(Sh * S ) + (Lh * Lf)
LEC Percentage = L% = 100 - S %
6
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FACILITIES SCHEDULE 5
COMBUSTION TURBINE PROJECT N0. 1 OPERATING PROCEDURES
Section 1. General Operating Criteria. The following general operating
criteria are applicable to the operation of the Combustion Turbine Project No . 1
generation facilities (hereinafter referred to as the "CT1 Project" ) . The General
Manager, or his or her designee, shall act as project manager for the CT1 Project
on behalf of the Project Participants.
101 Good Utility Practice. The CT1 Project shall be operated in
accordance with Good Utility Practice .
1 .2 Licenses and Regulatory Criteria. The CT1 Project shall be
operated in accordance with all license and regulatory requirements that are
applicable to the CT1 Project (e. g., air permit restrictions) .
1 .3 CT1 Project Statistics. The following are general CT1 Project
statistics :
Resource Name Resource ID Pmax Pmin
Alameda GT Uiut 1 ALMEGT 1 UNIT 1 219 MW 22.8 MW
Alameda GT Unit 2 ALMEGT 1 UNIT 2 25.4 MW 2494 MW
Lodi Gas Turbine LODI25 2 UNIT 1 2593 MW 22.2 MW
Section 2. Scheduling Criteria,
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AMENDED AND RESTATED FACILITIES AGREEMENT
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2. 1 Schedule Coordination. NCPA shall act as Scheduling Coordinator
for the CT1 Project, and perform such duties in accordance with the Amended
and Restated Scheduling Coordination Program Agreement.
2.2 Scheduling_Criteria and Project Coordination. Each Project
Participant, acting as an Operating Entity, shall schedule and bid its Project
Participation Percentage share of capacity, energy, and/or other project attributes
in any manner, and shall coordinate the scheduling of its Project Participation
Percentage share of the CT1 Project with NCPA; provided, however, that such
schedules or bids shall be consistent with licensing and regulatory criteria,
operational limitations, all established scheduling requirements, including, but
not limited to, those requirements set forth in the CAISO Tariff and as
determined by NCPA pursuant to the Amended and Restated Scheduling
Coordination Program Agreement, and the provisions of the respective Project
Agreement. NCPA may act as Operating Entity on behalf of a Project Participant
or a group of Project Participants, pursuant to separate agreement.
2.3 Test Energy. All energy generated for testing purposes shall be
allocated in proportion to each Project Participant's Project Participation
Percentage share of the CT1 Project,
2.4 Allocation of Project Output. All output of the CT1 Project,
including capacity, energy and/or other project attributes shall be allocated
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 5
among the Project Participants in accordance with the Project Agreement and the
Amended and Restated Scheduling Coordination Program Agreement.
2.5 Outage Coordination. Prior to the beginning of each Fiscal Year the
project manager shall prepare and submit for approval to the Facilities
Committee a planned outage schedule for the CT1 Project. Changes or
modifications made to the planned outage schedule during the course of the
Fiscal Year shall be subsequently reported in a timely manner to each Project
Participant. NCPA shall provide outage coordination services to track and
report planned and unplanned outages pursuant to the Amended and Restated
Scheduling Coordination Program Agreement.
2.6 Emergency Operation. The City of Alameda or Lodi may request
that the CT1 Project unit or units physically located within their respective
distribution systems be operated in the case of an usual event (e.g ., approaching
distribution system loading limitations, loss of transmission services, etc.) . Such
request shall be made from the Project Participant to the NCPA dispatch center.
Prior to approving a submitted request, NCPA shall review the impact such
request may have on prior commitments of NCPA and/or the Project Participants
associated with the CT1 Project, including, but not limited to, Project Participant
own load requirements, contractual commitments, bids submitted to and awards
received from the CAISO, to determine the feasibility of such request. All costs
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AMENDED AND RESTATED FACILITIES AGREEMENT
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related to emergency operations of the CT1 Project shall be borne by the
requesting Project Participant.
Section 3 . Natural Gas Fuel Supply.
3 . 1 General. The CT1 Project consumes natural gas as a fuel in order to
generate electric power for the benefit of the Project Participants. Section 3 of
this Facilities Schedule 5 describes the terms and conditions under which NCPA
will procure natural gas fuel for the CT1 Project.
3 .2 Economic Dispatch and Daily Fuel Requirements. The CT Project
consists of three (3) peaking generators, two (2) of which are located in the City
of Alameda, and one (1 ) of which is located in the City of Lodi. Unless called
upon to insure reliability by the CAISO, each generator is economically
dispatched in accordance with this Facilities Schedule 5 . In either case the fuel
supply requirements of the CT1 Project are met though NCPA' s contractual
relationship with a supplier for index based gas delivery. The cost of fuel
procured for the CT1 Project will be allocated to the Project Participants in
accordance with the Project Agreement, this Agreement, and the Amended and
Restated Scheduling Coordination Program Agreement.
3 .3 Forward Natural Gas Procurement and Financial Hedging. In the
normal course of business NCPA does not execute forward natural gas
transactions for the potential fuel supply needs of the CT Project, due to the
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 5
inherent uncertainty in forecasting fuel supply requirements for small peaking
generators . No financial hedges for fuel supply costs associated with the CT
Project will be implemented pursuant to this Facilities Schedule 5 . NCPA may
assist any Project Participant that desires to procure natural gas in advance for
anticipated CT1 Project fuel supply requirements, upon written request of a
Project Participant, provided that NCPA and the requesting Project Participant
have executed a separate agreement for such purposes.
3 .4 Fuel Supply Management and Scheduling. Natural gas fuel
consumed by the CT1 Project must be scheduled and transported to each
generator site. To obtain necessary scheduling and transportation rights and
services the Commission may periodically authorize contracts with Third Parties
and/or authorize subscriptions for transportation and storage services under
pipeline tariffs in accordance with procurement policies and procedures
established by the Commission.
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FACILITIES SCHEDULE 5
FACILITIES SCHEDULE 6
GEOTHERMAL PROJECT OPERATING PROCEDURES
Section 1. General Operating Criteria. The following general operating
criteria are applicable to the operation of the Geothermal Project No. 2 and No . 3
generation facilities (hereinafter referred to as the "Geothermal Project") . The
General Manager, or his or her designee, shall act as project manager for the
Geothermal Project on behalf of the Project Participants,
1 . 1 Good Utility Practice . The Geothermal Project shall be operated in
accordance with Good Utility Practice,
1 .2 Licenses and Regulatory Criteria. The Geothermal Project shall be
operated in accordance with all license and regulatory requirements that are
applicable to the Geothermal Project,
1 .3 Geothermal Operating Agreement. The Geothermal Project shall
be operated in a manner consistent with the Amended and Restated Geothermal
Project Operating Agreement between Northern California Power Agency and
the Geothermal Project Participants, dated as of April 1, 2011 (hereinafter
referred to as the "Geothermal Operating Agreement" ) . The operating
procedures contained in this Facilities Schedule 6 are stated to further define and
clarify the principles and procedures contained in the Geothermal Operating
Agreement,
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AMENDED AND RESTATED FACILITIES AGREEMENT
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1 .4 Geothermal Project Statistics . The following are general
Geothermal Project statistics .
Resource Name Resource ID Pmax Pmin
NCPA Geo Plant 1 Unit 1 NCPA_7_GPIUNI 38085 MW 20 MW
NCPA Geo Plant 1 Unit 2 NCPA_7_GP1UN2 34 MW 20 MW
NCPA Geo Plant 2 Unit 3 NCPA_7_GP2UN3 42.42 MW 15 MW
NCPA Geo Plant 2 Unit 4 NCPA_7_GP2UN4 52.73 MW 15 MW
Section 2. Scheduling.
291 Schedule Coordination. NCPA shall act as Scheduling Coordinator
for the Geothermal Project, and perform such duties in accordance with the
Amended and Restated Scheduling Coordination Program Agreement.
202 Scheduling Criteria and Project Coordination. Each Project
Participant, acting as an Operating Entity, shall schedule and bid its Project
Participation Percentage share of capacity, energy, and/or other project attributes
in accordance with the Geothermal Operating Agreement, and shall coordinate
the scheduling . of its Project Participation Percentage share of the Geothermal
Project with NCPA; provided, however, that such schedules or bids shall be
consistent with licensing and regulatory criteria, operational limitations, all
established scheduling requirements, including, but not limited to, those
requirements set forth in the CAISO Tariff and as determined by NCPA pursuant
to the Amended and Restated Scheduling Coordination Program Agreement,
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 6
and the provisions of the Geothermal Operating Agreement and respective
Project Agreement. NCPA may act as Operating Entity on behalf of a Project
Participant or a group of Project Participants, pursuant to separate agreement.
23 Allocation of Project Output. All output of the Geothermal Project,
including capacity, energy and/or other project attributes shall be allocated
among the Project Participants u1 accordance with the Project Agreement, the
Geothermal Operating Agreement and the Amended and Restated Scheduling
Coordination Program Agreement.
2A Outage Coordination. Notwithstanding the provisions of the
Geothermal Operating Agreement, prior to the beginning of each Fiscal Year the
project manager shall prepare and submit for approval to the Facilities
Committee a planned outage schedule for the Geothermal Project. Changes or
modifications made to the planned outage schedule during the course of the
Fiscal Year shall be subsequently reported in a timely manner to each Project
Participant. NCPA shall provide outage coordination services to track and
report planned and unplanned outages pursuant to the Amended and Restated
Scheduling Coordination Program Agreement.
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FACILITIES SCHEDULE 6
FACILITIES SCHEDULE 7
NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT
PROJECT OPERATING PROCEDURES
Section 1. Definitions. Unless defined in this Facilities Schedule 7, all terms
used in this Facilities Schedule 7 with initial capitalization shall have the same
meaning as those contained in Section 1 of this Agreement.
1 . 1 "Big Trees Flow Requirement" means the quantity of flow which
must be maintained in the North Fork Stanislaus River at Big Trees State Park in
accordance with the provisions of the FERC License.
12 "Collierville Capacity" means the maximum generating capability
of the Collierville power plant at any time under then existing conditions.
193 "Collierville Minimum Generation" means the minimum loading
of one unit at the Collierville power plant necessary to supply the required
consumption of the motoring unit or station power consumption as determined
through testing.
1A "Dry Water Conditions" means the period of historic record during
which the Hydroelectric Project could produce minimum project generation
usable to supply Operating Entities' load requirements.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
1 .5 "FERC License" means the license awarded by FERC for
construction and operation of the North Fork Stanislaus River Hydroelectric
Development Project, FERC Project Number 2409 .
1 .6 "Forecast Project Inflow" means the amount of Project Inflow for a
period of one month or less based .on hydrometerologic forecast methods
considering current flows, antecedent flows, snow pack measurements,
antecedent precipitation, forecast precipitation, and forecast air temperatures.
1 .7 "McKays Inflow" means the total inflow to McKays Diversion Darn
including flows diverted from Beaver Creek via the Beaver Creek Diversion
Tunnel.
1 .8 "McKays Minimum Outflow Requirement" means the sum of the
following minimum flow obligations: (i) required minimum downstream flow
below McKays Diversion Dam, (ii) required diversions to Utica Water and Power
Authority ("UWPA") and Calaveras County Water District ("CCWD" ), and (iii)
supplemental releases below McKays Diversion Dam to satisfy minimum flow
requirements at the confluence of the North Fork Stanislaus River and Beaver
Creek.
1 .9 "McKays Minimum Pool" means the minimum levels to which
McKays Reservoir will be drawn down under various operating conditions.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
1 . 10 "McKays Non-Storage-Regulated Inflow" means the inflow to
McKays Diversion Dam from NSM Non-Storage-Regulated Releases.
1 . 11 "McKays Storage-Regulated Inflow" means the inflow to McKays
Diversion Dam from NSM Storage-Regulated Releases.
1 . 12 "McKays Pondage" means the amount of usable storage at McKays
Diversion Dam for reregulating McKays Inflow.
1 . 13 "NSM" means New Spicer Meadow.
1 .14 "NSM Capacity" means the maximum generating capability of the
NSM power plant at any time under then existing conditions .
1 . 15 "NSM Generation" is the total amount of capacity and energy
produced by the NSM power plant.
1 . 16 "NSM Minimum Flow Requirements" means the quantity of flow
which must be maintained in the North Fork Stanislaus River at NSM in
accordance with the provisions of the FERC License.
1 . 17 "NSM Minimum Release Rule Curve Storage" means the quantity
of water of NSM Storage which must be retained in NSM Storage to ensure that
the Project can satisfy NSM Minimum Release Requirements under Dry Water
Conditions.
1 .18 "NSM Minimum Release Requirements" means the amount of
water which must be released from NSM Storage to supply or supplement the
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
greater of (i) NSM Minimum Flow Requirements, (ii) Big Tree Flow
Requirements, or (iii) McKays Minimum Outflow Requirements .
1 . 19 "NSM Non-Storage-Regulated Release" means the quantity of
water which must be released from NSM Storage to supply the NSM Minimum
Release Requirement.
1 .20 "NSM Spill Prevention Rule Curve Storage" means the minimum
quantity of water in NSM Storage which the project manager determines can be
held in NSM Storage and assure refill based on conservative forecasts of runoff
using snow pack measurements and long-range precipitation forecasts. NSM
Spill Prevention Rule Curve Storage may be less than the NSM Minimum
Release Curve Storage.
1 .21 "NSM Storage" means the usable storage above NSM Dam for
reregulating Project Inflow.
1 .22 "NSM Storage-Regulated Release" means the quantity of water
released from NSM Storage in excess of NSM Non-Storage-Regulated Releases to
satisfy the generation schedules of the Operating Entities.
1 .23 "Project Capacity" means the sum of the Collierville Capacity and
the NSM Capacity.
1 .24 "Project Inflows" means each of the following inflows to the
Hydroelectric Project: (i) natural inflow to NSM reservoir from Highland Creek;
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
natural flows diverted from the North Fork Stanislaus River at the North Fork
Diversion Dam to NSM reservoir; (iii) bypassed flows and spill at the North Fork
Diversion Dam; (iv) natural inflows below NSM Dam on Highland Creek and
below the North Fork Diversion Dam to the McKays Diversion Darn on the
North Fork Stanislaus River; and (v) natural flows diverted from Beaver Creek to
the McKays Diversion Dam at the Beaver Creek Diversion Structure .
1 .25 "Project Obligations" means the obligations of the Hydroelectric
Project as defined in the FERC License and agreements with local water districts
and other governmental entities as applicable.
1 .26 "Project Minimum Flow Obligations" are the minimum flows to be
maintained at specified locations as provided in the FERC License.
1 .27 "Regulation Study" means a study to determine the maximum
monthly loads of an Operating Entity or of all Operating Entities which can be
supplied by monthly Project Inflows when such flows are regulated by NSM
Storage and the Hydroelectric Project is operated to satisfy Project Obligations
under the FERC License.
Section 2. General Operating Criteria. The following general operating
criteria are applicable to the operation of the North Fork Stanislaus River
Hydroelectric Development Project generation facilities (hereinafter referred to
as the "Hydroelectric Project" ) . The General Manager, or his or her designee,
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
shall act as project manager for the Hydroelectric Project on behalf of the Project
Participants.
2. 1 Good Utility Practice. The Hydroelectric Project shall be operated
in accordance with Good Utility Practice.
22 Licenses and Regulatory Criteria. The Hydroelectric Project shall
be operated in accordance with all license and regulatory requirements that are
applicable to the Hydroelectric Project, including the FERC License ,
2.3 Data Requirements . NCPA shall strive to maintain an accurate
accounting of all Hydroelectric Project measurements and data, as described in
this Facilities Schedule 7, which are used to manage and allocate the output of
the Hydroelectric Project; provided, however, if due to failure of equipment, data
transfer error or other condition in which Hydroelectric Project measurements
and data are found to be incorrect, NCPA will develop and use estimated
measurements and data pursuant to Good Utility Practice to perform its
obligations pursuant to this Facilities Schedule 7, until such deficiency can be
corrected .
2.4 Hydroelectric Project Statistics. The following are general
Hydroelectric Project statistics:
Resource Name Resource ID Pmax Pmin
Collierville Hydro Unit 1 & 2 Aggregation COLVIL_733X2 246986 MW 3 MW
Spicer Hydro Units 1-3 Aggregation SPICER_1_UNITS 6 MW 001 MW
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
Section 3 . Forecasting Project Storage and Use
301 Seasonal Runoff Forecasts . On or before the seventh (71") Business
Day of each month, December through May, the project manager will prepare a
forecast of spring runoff based on hydrometeorology data including
measurements of snow pack depth and water content and long-range forecasts of
future precipitation. An analysis will be made to determine NSM Spill
Prevention Rule Curve Storage required at the end of subsequent months
through June to assure NSM Storage refill. For the period June-November, the
project manager will provide a forecast based on historical information. NSM
Spill Prevention Rule Curve Storage may be less than the NSM Minimum
Release Rule Curve Storage. The project manager shall provide copies of all such
forecasts and NSM Spill Prevention Rule Curve Storage data to the Facilities
Committee for review and comment.
392 Long Term Schedules. Based on the information developed
pursuant to Section 3 . 1 of this Facilities Schedule 7, and at least 10 Calendar Days
prior to the start of each month for the periods described herein, each Operating ,
Entity shall, at the request of the project manager, submit to the project manager
forecasted monthly energy requirements as follows:
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
(i) before November of each year a schedule of monthly energy
requirements for the following 14 months;
(ii) in the storage refill period before each month from January
through June, changes in schedules of monthly energy requirements for the
remainder of the calendar year;
(iii) in the storage draft period before each month from July
through December, changes in schedules of its forecast monthly energy
requirements to the end of the calendar year or for the following four (4) months,
whichever is longer .
The project manager shall prepare a Regulation Study based on the
Forecast Project Inflows to determine the forecast Hydroelectric Project operation
of each Project Participant' s Project Participation Percentage share of NSM
Storage, and the total Hydroelectric Project generation for the following month
based on Forecast Project Inflows. The project manager shall transmit to each
Operating Entity the results of the Regulation Study for its respective Project
Participation Percentage share of the Hydroelectric Project, and for the total
Hydroelectric Project, within three (3) Business Days of receipt of the information
supplied by the Operating Entities, including any revision made thereto.
Section 4. Scheduling.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
4. 1 Schedule Coordination. NCPA shall act as Scheduling Coordinator
for the Hydroelectric Project, and perform such duties in accordance with the
Amended and Restated Scheduling Coordination Program Agreement.
4.2 Scheduling Criteria and Project Coordination. Each Project
Participant, acting as an Operating Entity, shall schedule and bid its Project
Participation Percentage share of capacity, energy, and/or other project attributes
in any manner, and shall coordinate the scheduling of its Project Participation
Percentage share of the Hydroelectric Project with NCPA; provided, however,
that such schedules or bid shall be consistent with licensing and regulatory
criteria, operational limitations, all established scheduling requirements,
including, but not limited to, those requirements set forth in the CAISO Tariff
and as determined by NCPA pursuant to the Amended and Restated Scheduling
Coordination Program Agreement, and the provisions of the respective Project
Agreement. NCPA may act as Operating Entity on behalf of a Project Participant
or a group of Project Participants, pursuant to separate agreement. The
following specific scheduling criteria shall also apply to the Hydroelectric
Project:
(i) each Operating Entity shall be entitled to schedule its Project
Participation Percentage share of the Hydroelectric Project using its Project
Participation Percentage share of Project Capacity, Project Inflow, NSM Storage,
9
AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
and McKays Pondage after satisfying its Project Participation Percentage share of
Project Obligations;
(ii) if the NSM Storage of an Operating Entity is equal to or less
than its Project Participation Percentage share of NSM Minimum Release Rule
Curve Storage, its generation schedule will be limited to its Project Participation
Percentage share of NSM Non-Storage-Regulated Releases;
(iii) each Operating Entity shall be responsible for supplying its
Project Participation Percentage share of NSM Non-Storage-Regulated Releases
from its Project Participation Percentage share of NSM Storage;
(iv) each Operating Entity shall schedule its allocation of NSM
Generation based on its NSM Non-Storage-Regulated Releases each day;
(v) each Operating Entity will be entitled to use its Project
Participation Percentage share of McKays Pondage to reregulate its allocations of
McKays Non-Storage-Regulated Inflow and McKays Storage-Regulated Inflow to
satisfy its load requirements or other commitments;
(vi) the project manager, from time to time, will work with the
Operating Entities and the Facilities Committee to identify McKays Minimum
Pool, the applicable operating conditions and the associated minimum reservoir
levels; the McKays Minimum Pool levels are established taking into account the
Hydroelectric Project operational limitations, Project Minimum Obligations, the
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
amount of useable entitlement possible in the reservoir, and other criteria as
appropriate; once established, Project Participants shall not draw down their
Project Participation Percentage share of the McKays Reservoir below their
Project Participation Percentage share of McKays Minimum Pool under any
circumstances;
(vii) the Operating Entities will coordinate the operation of the
NSM power plant and the Collierville power plant to maintain the McKays
Pondage to strive to maximize the value of energy and ancillary services from
the Hydroelectric Project.
4.3 NSM Minimum Release Obligations . The project manager shall
perform a Regulation Study to determine the NSM Minimum Release Rule
Curve Storage required to satisfy Project Minimum Flow Obligations under Dry
Water Conditions. An Operating Entity shall not draw on its Project
Participation Percentage share of NSM Storage below its Project Participation
Percentage share of NSM Minimum Release Rule Curve Storage except when the
established . NSM Spill Prevention Rule Curve Storage is below the NSM
Minimum Release Rule Curve Storage level. The Regulation Study and the NSM
Minimum Release Rule Curve Storage for each Operating Entity, and in total for
the Hydroelectric Project, shall be reviewed by the Facilities Committee.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
4.4 Minimum Flow Obligations . Each Operating Entity shall be
responsible for supplying its Project Participation Percentage share of Project
Minimum Flow Obligations. If the sum of the Collierville generation
preschedules of the Operating Entities during any interval of the day is less than
the sum of the Collierville Minimum Generation, the project manager will
coordinate with the Operating Entities and adjust the collective preschedules of
the Operating Entities to meet the Collierville Minimum Generation.
4.5 Unscheduled Generation. If an Operating Entity does not schedule
its Project Participation Percentage share of the Hydroelectric Project for use in
its own system, or for sale to others, with the permission of that Operating Entity
arranged through the project manager, the other Operating Entities may
schedule such generation for their respective systems, or for sale to others . If
more than one Operating Entity requests that such unscheduled generation be
added to its schedule, the unscheduled generation shall be allocated in
proportion to the each Operating Entity' s Project Participation Entitlement share
of the requesting Operating Entities.
4.6 Minimum Generation Transfers. At any time that the Hydroelectric
Project is being operated at the minimum generation level to meet regulatory or
operating requirements, and one Operating Entity has scheduled or is willing to
schedule generation associated with such minimum generation, any other
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Operating Entity may arrange with that Operating Entity to schedule output of
the Hydroelectric Project that such Operating Entity would otherwise be
required to schedule, upon agreement of the Operating Entities and appropriate
notification to the project manager.
The responsibility for all arrangements in connection with any such
transfers shall rest with the Operating Entities involved. Unless otherwise
agreed by the Operating Entities and the project manager, the project manager
shall have no obligation in connection with the transaction beyond operating the
Hydroelectric Project to meet schedules provided and authorized by the
Operating Entities.
4. 7 Outage Coordination. Prior to the beginning of each Fiscal Year the
project manager shall prepare and submit for approval to the Facilities
Committee a planned outage schedule for the Hydroelectric Project. Changes or
modifications made to the planned outage schedule during the course of the
Fiscal Year shall be subsequently reported in a timely manner to each Project
Participant. NCPA shall provide outage coordination services to track and
report planned and unplanned outages pursuant to the Amended and Restated
Scheduling Coordination Program Agreement,
Section 5 . Project Accounting,
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5. 1 General Considerations. The primary objective of project
accounting is to record and account for each Operating Entity' s use of its Project
Participation Percentage share of Project Inflow, NSM Storage, McKays Pondage,
and Hydroelectric Project generation to satisfy its share of Project Minimum
Flow Obligations as defined in the FERC License.
5 .2 Criteria. A generation account, a NSM Storage account, and a
McKays Pondage account will be established for each Operating Entity. The
generation account, the McKays Pondage account and the NSM Storage account
will following a 2400 clock hour.
5 .3 Required Models. Project accounting will include four basic
models as follows:
(i) Flow Calculation;
(ii) Generation Accounting;
(iii) NSM Storage Accounting;
(iv) McKays Pondage Accounting.
The four models will be run iin the above sequence and make the
following determinations :
5 .3 . 1 Flow Calculation. Flow calculations will determine the
non-storage-regulated and storage-regulated flows available for power
generation at the NSM power plant and at the Collierville power plant.
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AMENDED AND RESTATED FACILITIES AGREEMENT
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Non-storage-regulated flows include releases from NSM Storage t
the project FERC License requirements and unregulated flows ent -
North Fork Stanislaus River below the NSM Dam and above the 1\
Diversion Dam. Flow calculations will be made in accordance wi
Appendix A of this Facilities Schedule 7.
5 .3 .2 Generation Accounting. Generation accounti
determine the quantity of project generation produced by each Op
Entity. Generation accounting will be calculated in accordance wi
Appendix B of this Facilities Schedule 7.
5 .3 .3 NSM Storage Accounting. Storage accountin
determine the amounts of NSM Storage for each Operating Entity.
accounting will be calculated in accordance with Appendix C of th
Facilities Schedule 7.
5.3 .4 McKays Pondage Accounting. McKays Pond - - -
accounting will determine the amounts of McKays Pondage for ea
Operating Entity based on.
(i) the Operating Entity' s allocation of McKays Non-Stor
Regulated Inflow;
(ii) the Operating Entity' s allocation of McKays Storage-I
Inflow; and
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Non-storage-regulated flows include releases from NSM Storage to satisfy
the project FERC License requirements and unregulated flows entering the
North Fork Stanislaus River below the NSM Dam and above the McKays
Diversion Dam. Flow calculations will be made in accordance with
Appendix A of this Facilities Schedule 7.
5 .3.2 Generation Accounting. Generation accounting will
determine the quantity of project generation produced by each Operating
Entity. Generation accounting will be calculated in accordance with
Appendix B of this Facilities Schedule 7.
5 .3.3 NSM Storage Accounting. Storage accounting will
determine the amounts of NSM Storage for each Operating Entity. Storage
accounting will be calculated in accordance with Appendix C of this
Facilities Schedule 7.
5 .3 .4 McKays Pondage Accounting. McKays Pondage
accounting will determine the amounts of McKays Pondage for each
Operating Entity based on.
(i) the Operating Entity's allocation of McKays Non-Storage-
Regulated Inflow;
(ii) the Operating Entity' s allocation of McKays Storage-Related
Inflow; and
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AMENDED AND RESTATED FACILITIES AGREEMENT
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the Operating Entity' s allocation of Collierville generation.
McKays Pondage accounting will be calculated in accordance with
Appendix D of this Facilities Schedule 7.
5 .4 Project Flow Determinations . Each day the project manager will
determine Hydroelectric Project flows required for NSM Storage accounting as
described in Appendix A of this Facilities Schedule 7, and will provide to each
Operating Entity a report on Hydroelectric Project flow determination including
the following items:
(a) UPA and CCWD project diversions;
(b) McKays downstream releases including spill;
(c) McKays Minimum Outflow Requirements (a + b);
(d) Collierville discharge;
(e) total McKays outflow (c + d);
(f) McKays Pondage change:
(g) McKays Inflow (e + f);
(h) McKays Storage-Regulated Inflow;
(i) McKays Non-Storage-Regulated Inflow;
(j) Beaver Creek diverted flow;
(k) Big Trees Flow Requirements (g - h);
(1) NSM power plant discharge;
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(m) NSM outlet works discharge,
(n) total NSM release (1 + m);
(o) NSM Storage change;
(p) NSM inflow (n + o);
(q) total NSM Non-Storage-Regulated Release; and
(r) total NSM Storage-Regulated Release.
Additionally, any two (2) Operating Entities, by mutual consent, may
trade water in McKays Reservoir, and make a simultaneous offsetting reverse
trade of their NSM Storage. The quantity of the offsetting trade at NSM is
reduced by eight percent (8%) to compensate the Operating Entity trading away
at NSM for the loss of the opportunity to generate with that water through the
NSM power plant.
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FACILITIES SCHEDULE 7
APPENDIX A
FLOW CALCULATIONS
Section 1. Definitions. Unless defined in this Appendix A of Facilities
Schedule 7, all terms used in this Appendix A of Facilities Schedule 7 with initial
capitalization shall have the same meaning as those contained in Section 1 or
Facilities Schedule 7 of this Agreement.
101 "Bank Storage" means the storage within the banks. of a river
stretch resulting from the change in river stage at different flows. Filling and
emptying of Bank Storage results in time delays between changes in discharge at
NSM Dam and the corresponding changes in observed flow at McKays . Bank
Storage in all stretches of the river below NSM is represented as an imaginary
pondage reservoir above McKays .
1 .2 "NSM Storage-Regulated-Flows" means releases into Bank Storage
from NSM Reservoir exclusively to produce power at the NSM power plant or to
produce power or ancillary services at the Collierville power plant.
103 "NSM Non-Storage-Regulated-Flows" means releases into Bank
Storage from the NSM Reservoir to satisfy Project Minimum Flow Obligations
including: (i) minimum flows below NSM Dam, (ii) minimum flows at Big Trees
State Park, (iii) required Mill Creek Tap Diversion; (iv) minimum flows below
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McKays Point Dam, (v) minimum flows below the confluence of Beaver Creek
and the North For Stanislaus River, and (vi) NSM spill.
1 .4 "Unregulated Flow" means unregulated flow into McKays
including the following: (i) inflow to the North Fork Stanislaus River below NSM
Dam and below the North Fork Diversion Structure, (ii) North Fork Diversion
Structure spill and fish release, and (iii) Beaver Creek diverted flows .
Section 2. Basic Hydro Data. All flow calculations will be based on the
following measurements:
(i) NSM releases include the following:
a. NSM power plant discharge;
b . NSM outlet works discharges and
c. NSM spill;
(ii) NSM Reservoir elevation;
(iii) McKays Pondage inflows, including:
a. Avery gauge; and
b . Beaver Creek diverted flow measurement;
(iv) McKays Pondage outflows, including:
a. Collierville power plant discharge;
b . Mill Creek Tap diversions;
c. McKays downstream fish release; and
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d . McKays spill;
(v) Stream gauge below McKays Dam - indirect spill calculation
only;
(vi) McKays Pond elevation.
Section 3. General Procedure.
(i) All flows will be calculated and routed through the system using
the model described herein.
(ii) The model will be considered to comprise three subsystems as
follows :
a. NSM subsystem;
b. McKays subsystem; and
c. Bank Storage subsystem.
(iii) The Bank Storage subsystem will serve as a substitute for the
effect of natural bank storage within the river system between NSM Dam and
McKays Dam to represent travel time.
Section 4. Routing.
4. 1 Routing Interval. A basic routing interval of one-half hour is used.
Computations will be based on average water and power flows recorded over
the routing interval.
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42 Routing_Criteria. The following criteria will be used in flow
routing.
(i) Bank Storage outflow will be assumed to come:
a. First from Bank Storage of NSM Non-Storage-Regulated
Flow; and
b . Second from Bank Storage of NSM Storage-Regulated
Flow.
(ii) Big Trees flow in excess of available Bank Storage will be
assumed to be Unregulated Inflow into McKays.
Section 5 . Flows .
561 McKays Flows.
(i) Determine McKays outflow from McKays Pondage as the sum of
Collierville discharge, Mill Creek Tap diverted flow, McKays fish release and
McKays spill.
(ii) Determine McKays Inflow as the sum of McKays outflow plus
the change in McKays Pondage.
(iii) McKays minimum outflow is the sum of the flow diverted from
the Mill Creek Tap and the McKays fish release.
(iv) Determine Big Trees flows as McKays Inflow less Beaver
Creek diverted flow.
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5.2 NSM Flows.
(i) Determine NSM release as the sum of NSM power plant
discharge, NSM outlet works discharge and NSM spill.
(ii) Determine NSM inflow as the sum of NSM release and the
change in NSM Storage.
5 .3 Bank Storage Flows.
(i) Bank Storage inflow is equal to the sum of NSM Storage less
NSM Storage-Regulated Releases and NSM Non-Storage-Regulated Releases.
(ii) Bank Storage is accumulated in those routing intervals when
Bank Storage inflow is greater than Big Trees flow. Bank Storage for each
Operating Entity will be classified and accumulated as non-storage-regulated or
storage-regulated, in accordance with the classification of the release from NSM.
(iii) Bank Storage outflow is used to supply Big Trees flow.
(iv) If there is not sufficient Bank Storage to supply all of the Big
Trees flow, then the balance of the Big Tree flow is assumed to be Unregulated
Inflow directly into McKays and not through Bank Storage .
(v) In accordance with the routing criteria stated herein, all non-
storage-regulated water in Bank Storage is depleted before any storage-regulated
water is released.
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FACILITIES SCHEDULE 7
r
APPENDIX B
GENERATION ACCOUNTING
Section 1. General Considerations. Project generation may be placed in three
principal categories.
1 . 1 Generation which must be produced at the Collierville power
plant:
(i) to discharge unregulated flows entering the North Fork
Stanislaus River below NSM Dam or below the North Fork Diversion Structure
including Beaver Creek Diversion discharge; or
(ii) to discharge North Fork Diversion Dam spill or NSM spill
through the Collierville power plant.
1 .2 Generation produced at the NSM power plant resulting from the
release of NSM Storage to satisfy minimum release requirements of the FERC
License.
1 .3 Generation produced at the NSM and Collierville power plant
resulting from the release of storage to meet the energy and ancillary service
requirements of the Operating Entities.
Section 2. Generation Accounting.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
2. 1 Operating Entity Responsibilities. Each Operating Entity is
responsible for submitting NSM water release schedules, NSM energy schedules,
Collierville energy schedules, ancillary service self-provision schedules and bids
to the project manager in the time frames as specified in the Amended and
Restated Scheduling Coordination Program Agreement. Each Operating Entity' s
pre-scheduled daily NSM water release schedules will be developed by the
project manager based on each Operating Entity' s estimate of Collierville energy
use for that day. Each Operating Entity shall provide an estimate of total daily
Collierville energy use no later than 07:00 each pre-scheduling day. NSM water
release schedules can be adjusted for future hours, but not for the currently
active hour, and not retroactively. Energy and ancillary service schedules must
follow the scheduling protocols of the CAISO Tariff and the Amended and
Restated Scheduling Coordination Program Agreement, and are therefore not
changeable after having been processed through the CAISO scheduling process .
2.2 NSM Generation. Generation actually produced at the NSM power
plant will be allocated to the Operating Entities in proportion to their water
release schedules, as specified in Appendix B of the Amended and Restated
Scheduling Coordination Program Agreement. This allocation means that it is
the NSM water release schedules, and not the NSM energy schedules, that form
the basis for the allocation of power at NSM. The NSM energy schedules are
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
needed to determine CAISO energy balancing purposes in the day-ahead
market, and should correspond appropriately to the NSM water release
schedules, but ultimately it is the NSM water release schedules that dictate the
allocation.
203 Collierville Generation. Collierville discharge through the power
plant is allocated to the Operating Entities in the same proportion as the metered
energy allocation results described in Appendix B to the Amended and Restated
Scheduling Coordination Program Agreement (commonly referred to as the Unit
Energy Allocation or ("UEA" )) .
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APPENDIX C
NSM STORAGE ACCOUNTING
Section 1. General Considerations . Each Operating Entity will be allocated
its Project Participation Percentage share of NSM Storage. Storage accounting
will determine the amount of NSM Storage drafted by each Operating Entity
each day and the status of the Operating Entity's allocation of NSM Storage at the
end of each day.
An Operating Entity may utilize the Project Participation Percentage share
of NSM Reservoir storage of other Operating Entities, provided that, if it is
necessary to spill at NSM Dam, such spill will be assumed to be first from water
stored by the Operating Entity who is using the Project Participation Percentage
share of NSM Reservoir storage of other Operating Entities. The allocation of
spill will be based on the amount the Operating Entities are "over-filled" relative
to their respective Project Participation Percentage shares of NSM Reservoir
storage . If more than one Operating Entity is over-filled, the initial allocation of
spill will be pro-rata to each based on the amount each is over-filled . Once all
water stored in the Project Participation Percentage share of others is spilled, any
remaining spill is allocated based on Project Participation Percentage shares.
Section 2. NSM Storage Accounting.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
FACILITIES SCHEDULE 7
APPENDIX C
NSM STORAGE ACCOUNTING
Section 1. General Considerations, Each Operating Entity will be allocated
its Project Participation Percentage share of NSM Storage. Storage accounting
will determine the amount of NSM Storage drafted by each Operating Entity
each day and the status of the Operating Entity's allocation of NSM Storage at the
end of each day.
An Operating Entity may utilize the Project Participation Percentage share
of NSM Reservoir storage of other Operating Entities, provided that, if it is
necessary to spill at NSM Dam, such spill will be assumed to be first from water
stored by the Operating Entity who is using the Project Participation Percentage
share of NSM Reservoir storage of other Operating Entities. The allocation of
spill will be based on the amount the Operating Entities are "over-filled" relative
to their respective Project Participation Percentage shares of NSM Reservoir
storage . If more than one Operating Entity is over-filled, the initial allocation of
spill will be pro-rata to each based on the amount each is over-filled . Once all
water stored in the Project Participation Percentage share of others is spilled, any
remaining spill is allocated based on Project Participation Percentage shares.
Section 2. NSM Storage Accounting.
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AMENDED AND RESTATED FACILITIES AGREEMENT
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291 NSM Inflow Allocation. Each Operating Entity will be allocated its
NSM Inflow (as determined in accordance with Appendix A of this Facilities
Schedule 7, Flow Calculations) by Project Participation Percentage share .
202 NSM Release Allocation. Each Operating Entity shall provide a
NSM water release schedule for each interval of each day. The actual NSM water
releases, calculated as described in Appendix A of this Facilities Schedule 7, will
be pro-rated to the Operating Entities based on the water release schedules . The
Facilities Schedule 7 model algorithm will automatically allocate the actual NSM
water releases by Operating Entity in each interval first to satisfy each Operating
Entity' s share of the NSM Minimum Release . These are classified in accordance
with Appendix A of this Facilities Schedule 7 as non-storage-regulated flows .
The remainder of each Operating Eritity' s water release will be considered
storage-regulated flows.
2.3 NSM Storage Chance The change in NSM Storage of each
Operating Entity will be equal to the Operating Entity' s allocation of NSM Inflow
minus each Operating Entity' s storage-regulated and non-storage-regulated
releases.
204 End-of-Interval NSM Storage. The end-of-interval- NSM Storage of
each Operating Entity will be the algebraic sum of the Operating Entity' s
beginning-of-interval NSM Storage and its NSM Storage change.
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
FACILITIES SCHEDULE 7
APPENDIX D
MCKAYS PONDAGE ACCOUNTING
Section 1. General Considerations. Determinations of McKays Pondage
accounts for each Operating Entity will be made each day.
Section 2. McKays Pondage Accounting.
201 McKays Entitlement. Each Operating Entity will be allocated an
entitlement amount of the total useable McKays Pondage in accordance with this
Appendix D of Facilities Schedule 7.
2.2 Storage in Excess of Entitlement. An Operating Entity may utilize
the McKays Pondage entitlements of other Operating Entities, provided that if it
is necessary to spill at McKays Dam, such spill will be assumed to be first from
water stored by the Operating Entity who is using the entitlement of other
Operating Entities . The allocation of spill will be based on the amount the
Operating Entities are "over-filled" relative to their Project Participation
Percentage share of McKays Pondage. If more than one Operating Entity is over-
filled, the initial allocation of spill will be pro-rata to each Operating Entity based
on the amount each Operating Entity is over-filled. Once all water stored in the
entitlements of others is spilled, any remaining spill is allocated based on Project
Participation Percentage shares.
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AMENDED AND RESTATED FACILITIES AGREEMENT
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23 Allocation of Flows. Flows are allocated to each Operating Entity
as follows :
(i) Unregulated inflow, non-storage regulated inflow, inflow from
Beaver Creek, Mill Creek Tap Outflow and McKays Fish Release are allocated
based on Project Participation Percentage shares;
(ii) Storage-regulated inflow is allocated in accordance with the
bair-Lk storage routing criteria specified in Appendix A of this Facilities Schedule
7, and the accumulated Operating Entity Project Participation Percentage shares
of the storage-regulated water in bank storage, based on each Operating Entity' s
NSM water release schedules;
(iii) Spill is allocated as specified in Section 2.2 of this Appendix D;
and
(iv) Collierville discharge through the power plant is allocated to
the Operating Entities in the same proportion as the metered energy allocation
results described in Appendix B of the Amended and Restated Scheduling
Coordination Program Agreement (commonly referred to as the Unit Energy
Allocation ("UEA"), and which allocates NSM energy based on the NSM water
release schedules) .
2.4 Operating Entity Pondage. At the end of each interval, each
Operating Entity's McKays Pondage is determined by algebraically summing the
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 7
Operating Entity' s allocation of inflows and outflows with the ending McKays
Pondage from the previous interval.
2.5 Water Trades Between McKays and NSM Pondae. Any two
Operating Entities, by mutual consent, may trade water in McKays, and make a
simultaneous offsetting reverse trade of their Pondage at NSM. The quantity of
the offsetting trade at NSM is reduced to compensate the Operating Entity
trading away at NSM for the loss of the opportunity to generate with that water
through the NSM power plant. The trade at NSM will be reduced by 8% (based
on the historical generation water duty ratio for NSM releases) relative to the
trade at McKays .
Water trades are effective as of 0001 of the agreed-upon trade day (since
the Facilities Schedule 7 algorithm re-calculates each interval of the current day
every half-hour, this means that there will be no retroactive computer re-runs
required) . A trade can be arranged to apply no earlier than 0001 of the current
day. Once agreed by the trading Operating Entities, the trade will be scheduled
by the project manager. Trades are of water only with no corresponding
financial payments . If there is no willing partner to a proposed trade, then each
Operating Entity's Pondage results are unchanged, and all Facilities Schedule 7
results, including the allocation of spill, remain unchanged.
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AMENDED AND RESTATED FACILITIES AGREEMENT
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FACILITIES SCHEDULE 8
COMBUSTION TURBINE PROJECT NO . 2 OPERATING PROCEDURES
Section 1. Definitions. Unless defined in this Facilities Schedule 8, all terms
used in this Facilities Schedule 8 with initial capitalization shall . have the same
meaning as those contained in Section 1 of this Agreement.
101 "Pool" or "Pooling" has the meaning as defined in the Second
Amended and Restated Pooling Agreement.
Section 2. General Operating Criteria. The following general operating
criteria are applicable to the operation of the Combustion Turbine Project No . 2
generation facilities (hereinafter referred to as the "STIG Project" ) . The General
Manager, or his or her designee, shall act as project manager for the STIG Project
on behalf of the Project Participants .
2. 1 Good Utility Practice. The STIG Project shall be operated in
accordance with Good Utility Practice.
2.2 Licenses and Regulatory Criteria. The STIG Project shall be
operated in accordance with all license and regulatory requirements that are
applicable to the STIG Project (e .g., air permit restrictions) .
2.3 Project Operation. The project manager shall normally operate the
STIG Project in accordance with day ahead and active day schedules. The project
manager may deviate from the scheduled operation due to system economics or
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AMENDED AND RESTATED FACILITIES AGREEMENT
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other operating conditions, provided that such deviations shall be coordinated
among the Operating Entities.
284 STIG Project Statistics. The following are general STIG Project
statistics :
Resource Name Resource ID Pmax Prnin
Lodi STIG Unit STIGCT_2_LODI 49.9 MW 25 MW
Section 3 . Scheduling Criteria,
301 Schedule Coordination. NCPA shall act as Scheduling Coordinator
for the STIG Project, and perform such duties in accordance with the Amended
and Restated Scheduling Coordination Program Agreement.
302 Scheduling Criteria and Project Coordination. Each Project
Participant, acting as an Operating Entity, may schedule and bid its Project
Participation Percentage share of capacity, energy, and/or other project attributes
in any manner, and shall coordinate the scheduling of its Project Participation
Percentage share of the STIG Project with NCPA; provided, however, that such
schedules or bid shall be consistent with licensing and regulatory criteria,
operational limitations, all established scheduling requirements, including, but
not limited to, those requirements set forth in the CAISO Tariff and as
determined by NCPA pursuant to the Amended and Restated Scheduling
Coordination Program Agreement, and the provisions of the respective Project
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 8
Agreement. NCPA may act as Operating Entity on behalf of a Project Participant
or a group of Project Participants, pursuant to separate agreement.
Notwithstanding the foregoing, upon mutual agreement of the STIG
Project Operating Entities NCPA may, acting as project manager, schedule and
bid the entire STIG Project on behalf of the Project Participants for capacity,
energy, and/or other project attributes into the CAISO markets and shall strive to
maximize the economic value of the STIG Project while taking full consideration
of other regulatory costs (e. g., GHG compliance obligations) .
393 Load Following. The STIG Project may be utilized by NCPA to
provide load following capacity, provided that Project Participants are
compensated for such operation in accordance with this Facilities Schedule 8 .
3 .4 Allocation of Project Output. All output of the STIG Project,
including capacity, energy and/or other project attributes .shall be allocated
among the Project Participants in accordance with the Project Agreement, this
Facilities Schedule 8, and the Amended and Restated Scheduling Coordination
Program Agreement.
15 Outage Coordination. Prior to the beginning of each Fiscal Year the
project manager shall prepare and submit for approval to the Facilities
Committee a planned outage schedule for the STIG Project. Changes or
modifications made to the planned outage schedule during the course of the
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 8
Fiscal Year shall be subsequently reported in a timely manner to each Project
Participant. NCPA shall provide outage coordination services to track and
report planned and unplanned outages pursuant to the Amended and Restated
Scheduling Coordination Program Agreement.
Section 4. Natural Gas Fuel Supply.
4. 1 General. The STIG Project consumes natural gas as a fuel in order
to generate electric power for the benefit of the Project Participants. Section 4 of
this Facilities Schedule 8 describes the terms and conditions under which NCPA
will procure natural gas fuel for the STIG Project.
4.2 Economic Dispatch and Daily Fuel Requirements. The STIG
Project consists of one generator. Unless called upon by the CAISO for
emergency conditions, the STIG Project is economically dispatched or self-
scheduled in accordance with the operating procedures defined in this Facilities
Schedule 8 . In either case the fuel supply requirements of the STIG Project are
primarily met though NCPA' s contractual relationship with a primary supplier
under a gas management agreement and supplemented with North American
Energy Standards Board ("NAESB" ) agreements with various Third Parties to
encourage competitive fuel supplies . The cost for natural gas fuel procured for
the STIG Project will be allocated to the Project Participants in accordance with
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AMENDED AND RESTATED FACILITIES AGREEMENT
FACILITIES SCHEDULE 8
the Project Agreement, this Agreement, and the Amended and Restated
Scheduling Coordination Program Agreement,
4.3 Forward Natural Gas Procurement and Financial Hedin NCPA
is permitted to procure natural gas fuel in advance of generation provided that
the term of the purchase does not exceed one month with delivery occurring
within the next calendar month following the transaction. No financial hedges
for fuel supply costs associated with the STIG Project will be implemented
pursuant to this Facilities Schedule 8 . NCPA may assist any Project Participant
that desires to procure natural gas in advance for anticipated STIG Project fuel
supply requirements, upon written request of a Project Participant, provided that
NCPA and the requesting Project Participant have executed a separate
agreement for such purposes.
4.4 Fuel Supply Management and Schedulin&. Natural gas fuel
consumed by the STIG Project must be scheduled and transported to the
generator site. To obtain necessary scheduling and transportation rights and
services the Commission may periodically authorize contracts with Third Parties
and/or authorize subscriptions for transportation and storage services under
pipeline tariffs in accordance with procurement policies and procedures
established by the Commission.
Section 5. Unused Project Participation Percentage Share,
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AMENDED AND RESTATED FACILITIES AGREEMENT
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5 . 1 Unused Project Participation Percentage Share.
5 :11 Day Ahead Scheduling. If an Operating Entity does not
elect to schedule and bid its Project Participation Percentage share of the
STIG Project in the day ahead market, pursuant to Section 3 of this Facilities
Schedule 8, the remaining Operating Entities may request the entire output
of the STIG Project. If the remaining Operating Entities desire to take energy
from the STIG Project, they must take the entire minimum economic
operating output as determined by the project manager. An Operating
Entity that did not take their Project Participation Percentage share in the
day ahead scheduling process cannot request their Project Participation
Percentage share in the active day where other Operating Entities have
requested to take the entire output of the STIG Project, unless otherwise
mutually agreed. Any Operating Entity that does not take their Project
Participation Percentage share shall be compensated for their Project
Participation Percentage share by the other Operating Entities in accordance
with this Facilities Schedule 8 . If the STIG Project is not scheduled for any
Operating Entity, the STIG Project will remain available for active day
scheduling for any Operating Entity.
5 . 1 .2 Active Day Scheduling . If an Operating Entity does not
elect to schedule and bid its Project Participation Percentage share of the
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0.
STIG Project in the active day market, pursuant to Section 3 of this Facilities
Schedule 8, the remaining Operating Entities may request the entire output
of the STIG Project. If the remaining Operating Entities desire to take energy
from the STIG Project, they must take the entire minimum economic
operating output as determined by the project manager. Once an Operating
Entity communicates to the project manager that it does not desire to take its
Project Participation Percentage share in the active day scheduling process,
they cannot request their Project Participation Percentage share in any hours
of the active day where other Operating Entities have requested to take the
entire output of the STIG Project, unless otherwise mutually agreed . Any
Operating Entity that does not take their Project Participation Percentage
share shall be compensated for their Project Participation Percentage share
by the other Operating Entities in accordance with this Facilities Schedule 8 .
If the STIG Project is not scheduled for any Operating Entity, the STIG
Project is available for use by the project manager.
Section 6. Coordinated Settlements, Cost Recovery, and Reimbursement of
Margin (Between Pool and non-Pool Project Participants) ,
L
6. 1 General Considerations.
(i) the objective of settlements and cost recovery is to ensure that
Project Participants pay actual operating costs, and provide the process that will
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ensure scheduling and operation by an Operating Entity does not have any
adverse economic impact on another Operating Entity; and
(ii) the objective of reimbursement of margin is to ensure that if the
STIG Project is scheduled to operate and an Operating Entity cancels the
operation, due to economic conditions or load following, such cancellation does
not adversely affect another Operating Entities' ability to receive its expected
margin from the planned operation of the STIG Project.
662 Settlements.
(i) whenever the STIG Project is operated, Project Participants shall
pay the variable costs of generation including any associated CAISO costs and
uninstructed energy costs, according to their Project Participation Percentage
shares
(ii) associated CAISO costs and uninstructed energy costs will be
allocated and settled in accordance with Appendix B of the Amended and
Restated Scheduling Coordination Program Agreement,
(iii) Project Participants shall be paid for project output pursuant to
the CAISO Tariff and project output shall be allocated according to their Project
Participation Percentage share; and
(iv) for non-Pool Operating Entities receiving energy through an
inter-scheduling coordinator trade, such Operating Entity shall pay for the inter-
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scheduling coordinator trade pursuant to the CAISO Tariff and Appendix B of
the Amended and Restated Scheduling Coordination Program Agreement.
6 .3 Cost Recovery.
(i) an Operating Entity that is taking energy greater than their
Project Participation Percentage share shall compensate the other Operating
Entities to ensure that those whose Project Participation Percentage share was
consumed by others are, at a minimum, financially neutral;
(ii) in the context of this Facilities Schedule, financial neutrality
means, if the Operating Entity scheduling less than their Project Participation
Percentage share has a net cost for those hours of the day that their Project
Participation Percentage share was being used by others, taking into account the
costs and payments under this Facilities Schedule 8, the Operating Entity using
the Project Participation Percentage share shall pay the Operating Entity whose
entitlement was used an amount to ensure the net cost is zero for the Operating
Entity whose Project Participation Percentage share was used by others; and
(iii) the STIG Project may be used for load following; in such case,
the Pool Operating Entity shall compensate the non-Pool Operating Entity to
ensure that the non-Pool Operating Entity is financially neutral or so that its
contribution to margin from CAISO market awards is maintained.
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FACILITIES SCHEDULE 9
POWER PURCHASE PROJECTS OPERATING PROCEDURES
Section 7. Definitions. Unless defined i11 this Facilities Schedule 9, all terms
used in this Facilities Schedule 9 with initial capitalization shall have the same
meaning as those contained in Section 1 of this Agreement.
791 "Power Purchase Project" means a power purchase contract or
contracts which are individually or collectively deemed to be NCPA Projects .
Section 8. General Operating Criteria. The following general operating
criteria are applicable to the operation of each Power Purchase Project. The
General Manager, or his or her designee, shall act as project manager for the
scheduling and operation of each Power Purchase Project.
861 Good Utility Practice. Power Purchase Projects shall be operated in
accordance with Good Utility Practice .
8 .2 Licenses and Regulatory Criteria. Power Purchase Projects shall be
scheduled and operated in accordance with all license and regulatory
requirements that are applicable to the Power Purchase Projects, if any.
Section 9. Scheduling_Criteria,
901 Schedule Coordination. NCPA shall act as Scheduling Coordinator
for each Power Purchase Project, and perform such duties in accordance with the
Amended and Restated Scheduling Coordination Program Agreement.
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92 Scheduling Criteria and Project Coordination. Each Project
Participant, acting as an Operating Entity, shall schedule and bid its Project
Participation Percentage share of capacity, energy, and/or other project attributes
in any manner, and shall coordinate the scheduling of its Project Participation
Percentage share of each Power Purchase Projects with NCPA, provided,
however, that such schedules or bids shall be consistent with licensing and
regulatory criteria, operational limitations, all established scheduling
requirements, including, but not limited to, those requirements set forth in the
CAISO Tariff and as determined by NCPA pursuant to the Amended and
Restated Scheduling Coordination Program Agreement, and the provisions of
the respective Project Agreement. NCPA may act as Operating Entity on behalf
of a Project Participant or a group of Project Participants, pursuant to separate
agreement.
9 .3 Allocation of Project Output. All output of a Power Purchase
Project, including capacity, energy and/or other project attributes shall be
allocated among the Project Participants in accordance with the Project
Agreement and the Amended and Restated Scheduling Coordination Program
Agreement.
9 .4 Outage Coordination. Prior to the beginning of each Fiscal Year the
project manager shall prepare and submit for approval to the Facilities
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Committee a planned outage schedule for each Power Purchase Project, if
applicable. Changes or modifications made to the planned outage schedule
during the course of the Fiscal Year shall be subsequently reported in a timely
manner to each Project Participant. NCPA shall provide outage coordination
services to track and report planned and unplanned outages pursuant to the
Amended and Restated Scheduling Coordination Program Agreement.
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RESERVE FUNDS
I
Reserve funds shall be established by the Commission for each NCPA Project as
set forth in this Facilities Schedule 10 . Reserve Funds shall be classified as either
"Mandatory Reserve Funds" or "Additional Reserve Funds."
Section 1. Mandatory Reserve Funds. Each NCPA Project that is financed by
I
the issuance of notes, bonds, or other public debt ('Bonds" ) is secured by the
provisions of a Project Indenture of Trust. Each Project Indenture of Trust
establishes, among other things, various interrelated reserve funds for the
protection of the holders of the Bonds. The following Mandatory Reserve Funds
are governed by the provisions of the applicable Project Indenture of Trust:
1 . 1 Debt Service Reserve Fund . A reserve equal to the maximum
annual debt service over the life of the outstanding debt. This reserve fund may
be used to pay debt service in the event that amounts in the debt service fund are
not sufficient.
1 .2 Reserve and Contingency Fr und . The renewal and replacement
account is a subaccount of the reserve and contingency fund used to pay the cost
of acquisition and construction relating to any capital improvement. In general,
a capital improvement is a repair, addition, improvement, modification or
betterment to a NCPA Project that is : (i) consistent with Good Utility Practice
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and determined necessary by the Commission to keep the NCPA Project in good
operating condition or to prevent a loss of revenue therefrom; (ii) required by
any governmental agency having jurisdiction over the NCPA Project; or (iii) not
any generating unit in addition to those included in the NCPA Project. (See the
appropriate Project Indenture of Trust for specific definition) .
The reserve account is a subaccount of the reserve and contingency fund
used to pay the cost of the following to the extent not provided for in the Annual
Budget or by an operating reserve in the operating fund : (i) acquisition and
construction relating to capital improvements to the extent amounts in the
renewal and replacement account are not sufficient, and (ii) items related to
extraordinary operations and maintenance costs and contingencies, including
payments to prevent or correct any unusual loss or damage to the NCPA Project.
Any increase or decrease in the balance to be on deposit in this account must be
recommended by the consulting engineer as provided in the applicable Project
Indenture of Trust.
1 .3 General Reserve . The general reserve is a subaccount of the general
reserve used to pay any deficiencies in any other funds and accounts established
by the Project Indenture of Trust and for any other purpose related to the NCPA
Project. The rate stabilization account is a subaccount of the general reserve used
to provide revenues so that Participant rates may be stabilized.
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1 .4 Operating Fund. A fund used to pay current NCPA Project
operating expenses. This fund also contains any amounts set aside as working
capital or operating reserves . In its Annual Budget process, the Commission will
determine and establish appropriate purposes for. and levels of operating
reserves to be held and maintained in the operating fund of the applicable NCPA
Project. Such operating reserves may include, but are not limited to, the
following:
(i) the working capital reserve is a reserve equal to the average
amount of capital required for operating purposes to fund expenditures made
prior to receipt of revenue collections; and
(ii) the maintenance reserve is a reserve for anticipated periodic
operating costs including, but not limited to, scheduled and unscheduled
maintenance other than ordinary repairs and replacements, e . g., overhaul,
inspection, etc.
Upon completion of construction of the applicable NCPA Project, interest
income on such reserves is considered a revenue for Project Indenture of Trust
purposes, and therefore treated as an operating revenue to NCPA to be allocated
back to the applicable NCPA Project.
Section 2. Additional Reserve Funds. Additional Reserve Funds may be
established by the Commission from time to time, provided their establishment
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does not affect the funding, maintenance, or operation of any Mandatory Reserve
Fund .
Funding mechanisms for all Additional Reserve Funds will be determined
on a case by case basis by the Commission upon the recommendation of the
Facilities Committee, but unless such Additional Reserve Fund is limited to a
specific project, may not be funded under a Project Agreement. If the additional
Reserve Fund is designated for capital improvements, the recommendation of
the NCPA Finance Committee will also be requested .
NCPA shall maintain separate accounts for all Additional Reserve Funds .
Unless otherwise required by a Project Indenture of Trust, at the time an
Additional Reserve Fund is established, the Commission shall determine
whether the interest accrued on the balance of the fund shall be treated and
accounted for as : (i) operating revenue to NCPA to be allocated back to the
applicable NCPA Project, or (ii) an addition to the balance of the fund. NCPA
shall maintain records and provide reports for each Additional Reserve Fund as
provided in this Agreement.
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PROJECT PHASES
Pursuant to Section 6 of this Agreement, any NCPA Project undertaken by
NCPA may have one or more phases. Facilities Schedule supplements the
description of each phase provided in Section 6 of this Agreement.
Section 1. First Phase Projects . Review and recommendations regarding First
Phase Project activities shall be made by the Facilities Committee . Each Member
obtains a right to participate in any Project identified by First Phase activity
proportional to its contribution to First Phase costs at the time a Project is
identified and becomes a candidate for Second Phase activity. First Phase
activity includes the following typical scope of work.
(i) make general investigations and obtain currently available
background, technical, economic and other preliminary data concerning the
feasibility of a specific Project, and
(ii) hold initial discussions to gain sufficient understanding of data
and circumstances surrounding the proposed Project to enable staff to report,
and/or recommend Participant participation in Second Phase activity and
execution of a Second Phase Agreement enabling such activity.
Section 2. Second Phase NCPA Projects. Second Phase development activity
begins upon the identification of a Project in substantial detail to allow
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proceeding with participation agreements resulting from investigations pursuant
to First Phase activities .
Subject to the provisions of this Agreement, Second Phase participation
rights are based a Participant' s share of funding First Phase activities . Final
Second Phase Project Participation Percentages will be determined by election by
those Project Participants desiring to participate pursuant to the Second Phase
Agreement. A Second Phase project must be fully subscribed to proceed with
the scope of work for the project. Limitations in scope of work, off ramps or
conditions of participation in Second Phase projects will be addressed in the
language of the associated Second Phase Agreement.
Funding for Second Phase projects may proceed in two steps :
2. 1 Step 1 . Step 1, is defined as the period from identification of a
Second Phase project, up to the final execution of a Second Phase Agreement for
all Participants desiring participation. Step 1 funding sources will be determined
at the discretion of the Project Participants . Typically, funding for Step 1 costs
will be by direct assessments to Participants or by withdrawals from Participants'
Second Phase funds, in accordance with each Participant's Project Participation
Percentage at the time of authorization of Step 1 .
Step 1 is optional and is provided in order to maintain continuity in the
project or to advance the project to some gain not otherwise obtainable without
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implementing Step 1 . All Step 1 costs will be included for ultimate
reimbursement and accounted for in the final Second Phase Agreement executed
by the Project Participants . Project Participation Percentages may change from
Step 1 to Step 2. In the event that the Second Phase project is terminated before
final execution of a Second Phase Agreement, each Project Participant will absorb
those costs expended, up to and including termination costs. No refunds are
anticipated for Step 1 costs associated with a terminated project.
2.2 Step 2. Step 2 is defined as the period beginning at final execution
of a Second Phase Agreement and ending either when the Third Phase
Agreement for the NCPA Project becomes effective, or in the case where an
NCPA Project does not progress to the Third Phase, upon termination of the
Second Phase Agreement.
Step 2 costs will be funded at the discretion of the Project Participants.
Typical funding for Step 2 costs will be by direct assessment, temporary
financing or permanent financing, depending on the needs of the project and
Project Participants . Second Phase costs will consist of all Step 1 costs (optional)
and all Step 2 costs. All Second Phase costs will be included for ultimate
reimbursement and accounted for in the final Third Phase Agreement executed
by the Project Participants . Project Participation Percentages may change from
the Second Phase to Third Phase of a project. In the event that the Second Phase
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AMENDED AND RESTATED FACILITIES AGREEMENT
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of a project is terminated prior to the final execution of a Third Phase Agreement,
each Project Participant will absorb those costs expended, up to and including
termination costs. No refunds are anticipated for Second Phase costs associated
with a terminated project. Second Phase activity includes the following typical
scope of work.
(i) licensing/permitting of a project;
(ii) preparation of design or turn-key specification documents for
construction or a project; and
(iii) negotiation of contracts .
Section 3. Third Phase NCPA Projects, Third Phase activities are described
in Section 6 of this Agreement.
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FEDERAL TAX GUIDELINES RELATING TO PRIVATE BUSINESS USE
NCPA has issued a number of Bond issues (the "Bonds" ) for the NCPA Projects
which have been "traditional" tax exempt bond or Build America Bond
obligations, which are "tax advantaged" under provisions of the Internal
Revenue Code (the "Tax Status") . This Facilities Schedule 12. summarizes and
documents the various federal tax restrictions approved by the Commission to be
used as guidelines relating to private business use of the NCPA Projects and the
capacity and energy from the NCPA Projects required to qualify and maintain
the Tax Status of the Bonds. Failure to comply with the private business use
requirements set forth in this Facilities Schedule 12 may adversely affect the Tax
Status of the Bonds.
Section 1. Definitions. Unless defined in this Facilities Schedule 12, all terms
used in this Facilities Schedule 12 with initial capitalization shall have the same
meaning as those contained in Section 1 of this Agreement.
101 'Bonds" means bonds, notes or other evidences of indebtedness of
NCPA (including, without limitation, contracts relating to letters of credit or
other credit enhancement devises, interest rate swap and other agreements
relating to interest rate or other cash-flow exchanges such as those authorized by
the Public Finance Contracts Law, and other contracts which are characterized as
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debt by NCPA at or prior to the execution thereof) issued to finance or refinance
a NCPA Project and to finance or refinance any contributions-in-aid-of-
construction for construction necessary for the adjacent electric system to
interconnect with a NCPA Project and includes additional bonds to complete a
NCPA Project and may consist of that portion of an issue of NCPA bonds, notes
or other evidences of indebtedness issued to finance the costs of a NCPA Project,
which portion is specifically identified as Bonds .
102 "Build America Bonds" or "BABs" means taxable municipal bonds
that feature tax credits and/or federal subsidies for bondholders and state and
local government bond issuers.
13 "Internal Revenue Code" means all federal tax laws .
1 .4 "Internal Revenue Service" means the federal agency responsible
for administering and enforcing the Treasury Department' s revenue laws,
through the assessment and collection of taxes, determination of pension plan
qualification, and related activities .
105 "Treasury Regulations" means tax regulations issued by the
Internal Revenue Service.
Section 2. Restrictions on Non-Governmental Use. Neither NCPA nor the
Participants may expect that (i) more than five (5) percent of the proceeds of a
Bond issue will be used to make or finance loans to any person other than a state
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AMENDED AND RESTATED FACILITIES AGREEMENT
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or local governmental unit, or (ii) except as described below, more than the
permitted amount of the proceeds of a Bond issue (that is, the lesser of 10 percent
or $15 million, as applicable) will be used in any trade or business carried on by
any natural person or any activity carried on by anyone other than a natural
person or a State or local governmental unit.
"Use" includes the sale of power (whether consisting of capacity, energy,
or both, including the sale of ancillary services) to non-governmentally owned
utilities (including e.g., the federal government, Bonneville Power
Administration and Western Area Power Administration) pursuant to output or
requirements contracts as well as any other arrangements for the sale of power
on terms different from those available to the general public. Such may include
contracts with retail customers that contain provisions which obligate a customer
to make payments that are not contingent on the output requirements of the
customer or that obligate the customer to have output requirements (including
provisions which obligate the customer not to cease operations) . The private
business use restrictions are applied by taking into account any arrangements
NCPA or any of the Participants have with non-exempt persons (generally, for
these purposes any entity or person other than a municipally owned utility) for
the sale of power from a NCPA Project. Use also includes providing a non-
governmental person with control, whether direct or indirect, over the
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operations, maintenance or decision making as to when to run or not run a
particular NCPA Project (in tax parlance such rights would be called "special
legal entitlements") . Such special legal entitlements also may create private
business use .
Applicable Treasury Regulations provide an exception to private business
use if the non-governmental person uses the property (or the capacity or energy
for the property) as a member of the general public. This occurs if the "property
is intended to be available and in fact is reasonably available for use on the same
basis by natural persons not engaged in a trade or business ." Use on the same
basis as the general public may include a fee or charge for use, so long as the
rates charged are generally applicable and uniformly applied. These rates may
vary in certain respects, such as different rates based on volume, so long as the
difference in rates is customary and reasonable. Any arrangement that gives the
non-exempt person special priority rights or preferential benefits is not use on
the same basis as the general public.
Section 3. Specific Private Business Use Exceptions Relating to the NCPA
Projects. NCPA and the Participants will enter into a variety of arrangements
with non-exempt persons, including wholesale customers of NCPA, wholesale
and retail customers of the Participants, and non-governmental utilities and
other providers and purchasers of electric generation, transmission, and
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AMENDED AND RESTATED FACILITIES AGREEMENT
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distribution service. Each of these arrangements will be treated as private
business use in evaluating compliance with the limits described in Section 2 of
this Facilities Schedule 12, except to the extent that the arrangement either
satisfies one of the following exceptions to the limitations on private business use
and private security or payments, or NCPA or the Participants obtain an opinion
of Bond Counsel to the effect that the arrangement will not adversely affect the
Tax Status of the Bonds:
(i) in the case of sales of electric generation or distribution service,
the term of such transaction will not exceed three (3) years (including renewal
options) and will be negotiated, arm' s length arrangements that provide for
compensation at fair market value or are based on generally applicable and
uniformly applied rates, and the related facility (e. g. a NCPA Project) was not
financed with a principal purpose of providing that facility for use by that non-
governmental person;
(ii) in the case of sales of electric generation or distribution service,
the compensation for such service and any other payments in respect of such use
will not exceed NCPA' s or the Participant' s, as applicable, properly allocable cost
of ordinary and necessary expenses that are. directly attributable to the operation
of the financed property used by the non-governmental person;
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in the case of sales of electric generation or distribution service,
the output is sold (a) to a retail customer pursuant to a requirements contract that
does not require the customer to make payments unless it actually has
requirements, (b) under a contract pursuant to which the average annual
payments made under the contract do not exceed the amount permitted under
the de minimis rule contained in the applicable regulations, (c) under a contract
the terms of which comply with (i) above, or (d) from non-bond financed system
resources of the Participant which are physically capable of supplying the output
being sold;
(iv) the arrangement will. not involve use of the Project (e .g., non-
bond financed resources or contracts involving the resale of generation provide
by an investor owned utility to NCPA);
(v) the use of the NCPA Projects that would constitute private
business use is allocable to (a) Bonds that have been "remediated" within the
meaning of Treasury Regulation section 1 . 141-12 (or repaid in their entirety), or
(b) equity, or (c) taxable bonds issued by NCPA, or (d) issues of bonds that have
been fully repaid;
(vi) an agreement that provides for the swapping or pooling of
output by one or more non-governmental persons to the extent that: (a) the
swapped output is reasonably expected to be approximately equal in value
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(determined over periods of one year or less), and (b) the purpose of the
agreement is to enable each of the parties to satisfy different peak load demands,
to accommodate temporary outages, to diversify supply, or to enhance reliability
in accordance with prudent reliability standards; and
(vii) the use of the NCPA Project is by an entity that qualifies as an
agency or instrumentality of NCPA approved by the Internal Revenue Service or
Bond Counsel.
i
Section 4. Sale of Renewable Energy Certificates. In a private letter ruling,
i
the Internal Revenue Service concluded that under certain circumstances the sale
I
of renewable energy certificates ("RECs" ) does not create any private business
use. If a Participant transacts to sell some or all of the RECs resulting from the
generation at one or more of the NCPA Projects to non-governmental person
with contract terms longer than three (3) years (contracts of three (3) years or less
would meet one of the exceptions from private business use described in Section
3 of this Facilities Schedule 12) such transaction must satisfy the following basic
requirements to satisfy the Internal Revenue Service.
(i) that the purchase of RECs does not entitle the REC purchaser to
any electric energy from the NCPA Project;
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(ii) the Participant will retain exclusive control over its entitlement
to the NCPA Project, its operations and any decision regarding how or whether
to operate the NCPA Project;
(iii) the Participant will not be under any obligation to produce, or
cause to be produced, any renewable energy or to operate, or cause the Project to
be operated at all or at any particular level; and
(iv) the REC contracts will not give the REC purchaser any direct or
indirect voice in how any component of the NCPA Project will be operated or
maintained .
Section 5. Compliance with Private Business Use Limits by Participants .
Private business use limitations set forth in this Facilities Schedule apply in
aggregate to all actions by NCPA and the Participants . Accordingly, NCPA will
implement internal procedures and requirements necessary to assure compliance
with the private business use limits as specified in this Facilities Schedule,
including:
(i) contractual obligations of the Participants to comply with
private business use limits and other requirements of the Internal Revenue Code,
and
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(ii) regularly surveying the Participants to determine compliance
with the private business use limits and other requirements of the Internal
Revenue Code.
Participants are required to comply with private business use limits and
other requirements of the Internal Revenue Code pursuant to applicable Project
Agreement, and Participants are strongly encouraged to established internal
procedures and requirements .necessary to assure compliance.
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REPORTS TO PARTICIPANTS
Pursuant to Section 16 . 1 of this Agreement, NCPA shall prepare and make
available to each Participant the following reports monthly:
(i) NCPA Project Operating Reports;
(ii) NCPA Project Financial Operating Statements;
(iii) Status of NCPA Budget as such applies to Project Costs; and
(iv) such additional reports as are required under any applicable
Project Agreement, this Agreement, or as requested by the Facilities
Committee.
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FACILITIES SCHEDULE 14
PARTICIPANT NOTICE REQUIREMENTS
Pursuant to Section 7. 1 of this Agreement a Participant that desires to enter into a
transfer, sale, assignment or exchange of all or a portion of its Project
Participation Percentage share of a NCPA Project or its Project Participation
Percentage share of specific NCPA Project attributes shall provide notice of such
transfer, sale, assignment or exchange to the General Manager in accordance
with this Facilities Schedule 14.
Section 1. Participant Notice,
1 . 1 Protect Participation Percentage Share. Prior to a Participant
entering into a transfer, sale, assignment or exchange of all or any portion of its
Project Participation Percentage share of a NCPA Project, for a specific time
interval, or permanently, a Participant shall provide thirty (30) Calendar Days
prior written notice to the General Manager,
1 .2 NCPA Project Attributes. Prior to a Participant entering into a
transfer, sale, assignment or exchange of its Project Participation Percentage
share of a specific NCPA Project attribute, including, but not limited to, capacity,
energy and/or other related attributes, for a specific time interval, but retain its
full Project Participation Percentage share of a NCPA Project throughout the
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term of such transfer, sale assignment or exchange, a Participant shall provide
thirty (30) Calendar Days prior written notice to the General Manager,
Section 2. Evaluation and Report of Impacts . Upon receipt of a Participant' s
notice submitted to the General Manager pursuant to Section 1 of this Facilities
Schedule 14, the General Manager shall evaluate what impacts, if any, the
transfer, sale, assignment or exchange may have on NCPA' s internal and
external systems utilized to manage the respective NCPA Project, on NCPA' s
governance, and other Project Participants' interest in the respective NCPA
Project. Within thirty (30) Calendar Days after the date on which written notice
is received by NCPA, or a period of time greater than thirty (30) Business Days if
deemed necessary by the General Manager, in his/her sole discretion, that is
reasonably required to identify and evaluate impacts and interests, the General
Manager will develop and deliver to the Participants in the affected NCPA
Project a written report identifying such impacts and interests.
In such report the General Manager shall identify what reasonable
conditions, if any, are necessary to implement such transfer, sale, assignment or
exchange in a cost effective and timely manner and mitigate the impacts of the
transfer, sale, assignment or exchange on NCPA and other Project Participants,
The General Manager shall coordinate with the Participants in the affected
NCPA Project prior to the final execution of the desired transfer, sale, assignment
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or exchange, so as to mitigate any identified impacts as necessary (e. g.,
programming modifications, impacts to NCPA Project operations) .
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