HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2008-01-31e&u vl3iog
AMENDED
NCPA GREEN POWER PROJECT
THIRD PHASE AGREEMENT
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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TABLE OF CONTENTS
SECTION1. DEFINITIONS................................................................................................................6
1.1
DEFINITIONS................................................................................................................................6
5.2
1.2
RULES OF INTERPRETATION......................................................................................................17
5.3
SECTION 2. EFFECTIVE DATE OF AGREEMENT......................................................................18
...................................25
SECTION 3. PROCUREMENT PROCESS......................................................................................18
BUDGETS AND BUDGET SETTLEMENTS......................................................................................26
3.1
REQUEST FOR PROPOSALS AND PPA(S) ....................................................................................18
SECURITY ACCOUNT..................................................................................................................27
3.2
PARTICIPANT APPROVAL OF PROCUREMENT PROCESS............................................................19
INVOICING.................................................................................................................................30
3.3
APPROVAL OF NGPP RESOURCES............................................................................................19
AUDITING AND SETTLEMENT DATA.........................................................................................32
3.4
ADDITIONAL PROVISIONS RELATED TO DEVELOPMENT OPPORTUNITIES...............................21
REVENUE COVENANT................................................................................................................32
3.5
DELIVERY OF ELECTRICITY / ALLOCATION OF ENVIRONMENTAL ATTRIBUTES .......................22
3.6
CAPACITY ENTITLEMENT..........................................................................................................23
3.7
PAYMENTS TO COUNTERPARTIES..............................................................................................23
3.8
REMOVAL OF NGPP RESOURCES FROM NGPP........................................................................24
SECTION 4. COOPERATION AND FURTHER ASSURANCES...............................................24
SECTION 5. BUDGET, OPERATING FUND, INVOICING.......................................................25
5.1
"NGPP COST ALLOCATION.........................................................................................................25
5.2
PAYMENT OF NGPP PROJECT COSTS........................................................................................25
5.3
APPLICABLE PERCENTAGES OF NGPP PROJECT COSTS AND BUDGETS
...................................25
5.4
BUDGETS AND BUDGET SETTLEMENTS......................................................................................26
5.5
SECURITY ACCOUNT..................................................................................................................27
5.6
INVOICING.................................................................................................................................30
5.7
AUDITING AND SETTLEMENT DATA.........................................................................................32
5.8
REVENUE COVENANT................................................................................................................32
SECTION 6. ADMINISTRATION OF AGREEMENT..................................................................33
6.1
GENERAL...................................................................................................................................33
6.2
ACTION BY PARTICIPANTS........................................................................................................34
6.3
NGPP OVERSIGHT COMMITTEE...............................................................................................35
6.4
PARTICIPANT REPRESENTATIVES..............................................................................................36
SECTION 7. PARTICIPATION PERCENTAGE; ADMISSION AND WITHDRAWAL OF
PARTICIPANTS........................................................................................................................................37
7.1 PARTICIPATION PERCENTAGES AND RESOURCE ALLOCATION PERCENTAGES .......................37
7.2 ADMISSION OF NEW PARTICIPANTS.........................................................................................37
7.3 WITHDRAWAL OF PARTICIPANTS.............................................................................................38
SECTION 8. TERM AND TERMINATION....................................................................................39
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SECTION 9. DEFAULT AND REMEDIES......................................................................................39
9.1 EVENTS OF DEFAULT.................................................................................................................39
9.2 CURE OF AN EVENT OF DEFAULT..............................................................................................40
9.3 PARTICIPATION RIGHTS OF DEFAULTING PARTY....................................................................41
9.4 REMEDIES IN THE EVENT OF DEFAULT......................................................................................41
9.5 EFFECT OF TERMINATION OR SUSPENSION...................::..........................................................44
SECTION 10. MISCELLANEOUS..................................................................................................47
10.1 CONFIDENTIALITY.....................................................................................................................47
10.2 INDEMNIFICATION AND HOLD HARMLESS...............................................................................47
10.3 SEVERAL LIABILITIES.................................................................................................................48
10.4 No CONSEQUENTIAL DAMAGES...............................................................................................48
10.5 AMENDMENTS...........................................................................................................................49
10.6 SEVERABILITY .............................................................................................................................49
10.7 GOVERNING LAW......................................................................................................................50
10.8 HEADINGS..................................................................................................................................50
10.9 NOTICES.....................................................................................................................................50
10.10 WARRANTY OF AUTHORITY...................................................................................................... 51
10.11 COUNTERPARTS.........................................................................................................................51
10.12 ASSIGNMENT.............................................................................................................................52
10.13 LIST OF ExFUBrrs........................................................................................................................52
Exhibits
Exhibit A
Participation Percentages and Resource Allocation Percentages
Exhibit B
Form of Resource Schedule
Exhibit C
Approved Resource Schedules
Exhibit D
Intentionally Omitted
Exhibit E
Intentionally Omitted
Exhibit F
Form of Request for Proposals
Exhibit G
Form of Power Purchase Agreement
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AMENDED NCPA GREEN POWER PROJECT THIRD PHASE
AGREEMENT
This Amended Third Phase Agreement (hereinafter "Amended Agreement") is
entered into on the Effective Date by and between the NORTHERN
CALIFORNIA POWER AGENCY, a joint powers agency, created pursuant to the
laws of the State of California (hereinafter "NCPA") and its members executing
this Amended Agreement as reflected on Exhibit A hereto (hereinafter
"Participants") for the purpose of procuring electrical power from NCPA's Green
Power Project (hereinafter "NGPP"). NCPA and the Participants are referred to
herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. NCPA and the Participants are interested in purchasing additional
electricity generation from renewable resources for the benefit of
Participants' customers.
B. By purchasing electricity generated from renewable resources, NCPA and
the Participants will help reduce the production of many environmental
pollutants, assist in reducing reliance on fossil fuels, assist in stabilizing
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the Participants' electric retail rates, and aid the State of California in
reaching its renewable energy goals.
C. This Amended Agreement will better enable NCPA to negotiate and enter
into contracts to purchase electricity from renewable, resources and
investigate the acquisition of physical assets to generate electricity using
renewable resources under market conditions that have changed from the
time of the original Green Power Project.
D. Through this Amended Agreement each Participant also seeks increased
flexibility to choose and integrate any and all renewable resource
acquisitions to their own unique needs arising from each Participants load
profile, existing renewable energy portfolio, and transmission constraints.
E. The Participants also desire to obligate and enable NCPA to conduct the
foregoing activities, and deliver electricity from renewable resources to
the Participants, and to obligate and enable the Participants to take
delivery of and pay for such electricity and to investigate the acquisition
of physical assets or the development of such to deliver electricity and to
pay NCPA for the costs of undertaking the foregoing activities.
F. This Amended Agreement supersedes that certain NGPP Third Phase
Agreement entered into between NCPA and certain of the Participants
with the effective date of December 14, 2006.
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NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree and intend to be legally bound as follows:
Section 1. Definitions,
1.1 Definitions.
Whenever used in this Amended Agreement (including the Recitals hereto), the
following terms shall have the following respective meanings:
Section 7.3.1.
1.1.1 "Adjusting Participant" has the meaning set forth in
1.1.2 "Amended Agreement" means this NCPA Green
Power Project Third Phase Agreement, including all Exhibits attached hereto and
incorporated by reference, as the same may be amended from time to time in
accordance with the terms and conditions hereof.
1.1.3 "Allocating Participant" has the meaning set forth in
Section 7.2.
1.1.4 "Associate Member" means an associate member of
NCPA admitted to NCPA in accordance with Article IV, Section 7 of the Joint
Powers Agreement.
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1.1.5 "Average Capacity" in MW means the annual
quantity of electricity in MWh forecast to be delivered from all NGPP Resources
including the Proposed Resource calculated at the time a decision is made by
NCPA with respect to whether to approve the Proposed Resource in accordance
with Section 3.4 divided by the number of hours in the year.
1.1.6 "Business Day" means any day except a Saturday,
Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00
a.m. and close at 5:00 p.m. local time.
1.1.7 "Claims" has the meaning set forth in Section 10.2.
1.1.8 "Commission" means the NCPA Commission.
1.1.9 "Constitutive Documents" means, with respect to
NCPA, the Joint Powers Agreement and any resolutions or bylaws adopted
thereunder, 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.
1.1.10 "Contract Price" means the actual contract price for
procuring electricity from a Proposed Resource at the time a Power Purchase
Agreement is executed.
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Section 9.1.
2.
1.1.11 "Defaulting Party" has the meaning set forth in
1.1.12 "Effective Date" has the meaning set forth in Section
1.1.13 "Electric System" means, with respect to each
Participant, all properties and assets, real and personal, tangible and intangible,
of the Participant now or hereafter existing, used for or pertaining to the
generation, transmission, transformation, distribution and sale of electric
capacity and energy, or the utilization of such, including all additions,
extensions, expansions, improvements and betterments thereto and equipment
thereof; provided, however, that to the extent the Participant is not the sole
owner of an asset or property or to the extent that an asset or property is used in
part for the above described purposes, only the Participant's ownership interest
in such asset or property or only the part of the asset or property used for electric
purposes shall be considered to be part of its Electric System.
1.1.14 "Eligible Renewable Resource" means an electric
power generator (i) producing power from one or more of the following fuels:
Biomass, Biodiesel, Fuel cells using renewable fuels, Digester gas, Geothermal,
Landfill gas, Municipal solid waste conversion, Ocean wave, Ocean thermal,
Tidal current, Photovoltaic, Small hydroelectric (30 megawatts or less), Solar
thermal, Wind, or other fuels and teclulologies as may be deleted from or added
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to this list by the Participants, pursuant to Section 6.2, from time to time, and any
additions or enhancements to a facility using such fuels and technology and (ii)
which are (a) located within California, (b) are located outside of California and
have their first point of interconnection with the Western Electricity
Coordinating Council transmission system located within California or (c) are
located outside of California but deliver electricity to a substation or node within
California, or (d) as otherwise determined by the Participants pursuant to Section
6.2.
1.1.15 "Environmental Attributes" means any and all
credits, benefits, emissions reductions, offsets, and allowances, howsoever
entitled, directly attributable to the generation from NGPP Resources.
Environmental Attributes include but are not limited to: (1) any avoided
emissions of pollutants to the air, soil or water such as sulfur oxides (SOx),
nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any
avoided emissions of carbon dioxide (CO2), methane (CH4) and other
greenhouse gases (GHGs) that have been determined by the United Nations
Intergovernmental Panel on Climate Change to contribute to the actual or
potential threat of altering the Earth's climate by trapping heat in the
atmosphere; and (3) the reporting rights to these avoided emissions such as
Green Tag Reporting Rights. Environmental Attributes do not include (1) any
energy, capacity, reliability or other power attributes from NGPP Resources, (2)
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production tax credits associated with the construction or operation of the
energy projects and other financial incentives in the form of credits, reductions,
or allowances associated with a project that are applicable to a state or federal
income taxation obligation, (3) fuel -related subsidies or "tipping fees" that may
be paid to Seller to accept certain fuels, or local subsidies received by the
generator for the destruction of particular pre-existing pollutants or the
promotion of local environmental benefits, or (4) emission reduction credits
encumbered or used by NGPP Resources for compliance with local, state, or
federal operating and/or air quality permits.
Section 9.1.
1.1.16 "Event of Default" has the meaning set forth in
1.1.17 "Forecast Price" means the estimated Contract Price
for procuring electricity from a Proposed Resource, calculated at the time a
decision is made with respect to whether to approve or Opt -Out of participating
in the Proposed Resource.
1.1.18 "Joint Powers Agreement" means that certain
Northern California Power Agency Joint Power Agreement by and among the
Members as the same may be amended from time to time.
1.1.19 "Maximum Average Capacity" means the sum of the
Participant elections expressed as average annual MWs labeled as "Total Annual
aMW' in Exhibit A.
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1. 1.20 "Maximum Contract Price" means the applicable
lawful ceiling price for capacity and/or energy at the time a purchase of an
Eligible Renewable Resource is consummated; currently, the CAISO Bid Cap for
its real-time imbalance energy market as approved by the Federal Energy
Regulatory Commission
Member of NCPA.
hereto.
1.1.21 "Member" means any Associate Member or Voting
1.1.22 "MW" means megawatt.
1. 1.23 "MWh" means megawatt -hour.
1.1.24 "NCPA" has the meaning set forth in the preamble
1.1.25 "NCPA Annual Budget" means the budget for the
ensuing Budget Year adopted by the Commission, as it may be amended from
time to time.
1.1.26 "NGPP" means the NCPA Green Power Project,
which consists of the pool of NGPP Resources.
1.1.27 "NGPP Oversight Committee" means a committee of
Participant Representatives established at the NCPA General Manager's
discretion, for the purpose of offering input and recommendations to NCPA Staff
or the General Manager with respect to matters pertaining to this Amended
Agreement pursuant to the provisions of Section 6.3.
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1.1.28 "NGPP Project Budget" means the budget created by
NCPA to estimate the annual NGPP Project Costs, having the following budget
subcategories:
(i) NGPP Program Budget" means the budget created
by NCPA to estimate the annual, non -bypassable
NGPP Program Costs
NGPP Development Budget" means the budget(s)
created by NCPA to estimate the NGPP Development
Costs to be incurred prior to the time of execution of a
Third Phase Agreement to pursue the development of
a Proposed Resource for those Participants who have
not exercised their initial Opt -Out right.
(iii) "NGPP PPA Budget" means the budget(s) created by
NCPA to estimate the NGPP PPA Costs to be
incurred to finalize the acquisition of a Proposed
Resource through a Power Purchase Agreement for
those Participants who have not exercised their Opt -
Out right.
1.1.29 "NGPP Project Costs" means any and all costs,
internal and external, direct and indirect, incurred by NCPA in connection with
performing its obligations under this Amended Agreement, including NGPP
Program Costs, NGPP PPA Costs, and NGPP Development Costs.
NGPP Program Costs means all costs incurred by
NCPA prior to the time Participants are afforded an
opportunity to Opt -Out of the procurement or
development of an Eligible Renewable Resource,
including but not limited to costs incurred to issue
Requests for Proposals, and the investigation and
evaluation thereof, and preparation of corresponding
Preliminary Resource Summaries.
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(ii) "NGPP PPA Costs" means all costs incurred by
NCPA to acquire and pay for an Eligible Renewable
Resource through a Power Purchase Agreement,
including but not limited to negotiating and
implementing Power Purchase Agreements, provided
that such costs arise after Participants have been
afforded a chance to exercise their Opt -Out rights in
accordance with Section 3.4.
(iii) ''NGPP Development Costs" means all costs,
incurred by NCPA to develop an Eligible Renewable
Resource, including but not limited to further
investigation, preliminary arrangements for
financing, and the provision of recommendations
regarding the development, construction, installation,
operation, ownership and maintenance of the Eligible
Renewable Resources, provided that such costs arise
after Participants have been afforded a chance to
exercise their Opt -Out rights in accordance with
Section 3.4 and prior to the Participants approval of a
Third Phase Agreement in accordance with the NCPA
Facilities Agreement;
1.1.30 "NGPP Resource" means a Proposed Resource that
has been approved as an NGPP Resource in accordance with Section 3.4.
preamble hereto.
1.1.31 "Participant" has the meaning set forth in the
1.1.32 "Participant Representative" has the meaning set
forth in Section 6.4 with respect to the NGPP Oversight Committee.
1.1.33 "Party" or "Parties" has the meaning set forth in the
preamble hereto.
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in Section 7.1.
1.1.34 "Participation Percentages" has the meaning set forth
1.1.35 "Power Purchase Agreement" or "PPA" means an
agreement executed by NCPA, or to be executed by NCPA, for the purchase and
delivery of electric energy, capacity or other energy services and Environmental
Attributes.
1.1.36 "Preliminary Resource Schedule" means a "Resource
Schedule" substantially in the form of Exhibit B submitted to the NCPA
Commission as an initial evaluation of responses to a Request for Proposals for
the purposes of allowing Participants to make an election to Opt -Out of further
participation with respect to an otherwise Eligible Renewable Resource in
accordance with sections 3.4 and 6.2 below.
1.1.37 "Procure" and other forms of such verb, including
Procurement, Procuring, and Procured, means acquiring the output of Eligible
Renewable Resources, including all Environmental Attributes associated with
any electricity generated in connection therewith, through contracts with
facilities owned by third parties, by purchasing existing Eligible Renewable
Resources, by developing, constructing, installing, owning, operating,
maintaining, and controlling Eligible Renewable Resources, or such other means
as may be approved by the Participants from time to time.
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in Section 3.1.
Section 3.3.1.
1.1.38 "Procurement Conditions" has the meaning set forth
1.1.39 "Proposed Resource" has the meaning set forth in
1.1.40 "Request for Proposals" means the solicitation of
competitive bids from third parties to supply Eligible Renewable Resources
under this Agreement, substantially in the form of Exhibit F attached hereto.
1.1.41 "Resource Allocation Percentage" means a
Participant's Participation Percentage as adjusted according to the terms of this
Amended Agreement by reason of one or more Participant's exercise of their
Opt -Out rights
1.1.42 "Resource Schedule" means a Resource Schedule,
substantially in the form of Exhibit B, identifying the location of the Proposed
Resource, its size and technology, type of Procurement, the estimated costs (both
total and per MWh) and underlying assumptions, key milestone dates (such as
commercial operation date and delivery period), a description of the definitive
agreements, a proposed budget for pursuing the Procurement of electricity from
the Proposed Resource and a proposed mechanism for financing the
Procurement.
1.1.43 "Revenues" means, with respect to each Participant
with the exception of BART, all income, rents, rates, fees, charges, and other
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moneys derived by the Participant from the ownership or operation of its Electric
System, including, without limiting the generality of the foregoing, (a) all
income, rents, rates, fees, charges or other moneys derived from the sale,
furnishing and supplying of electric capacity and energy and other services,
facilities, and commodities sold, furnished, or supplied through the facilities of
its Electric System, (b) the earnings on and income derived from the investment
of such income, rents, rates, fees, charges or other moneys to the extent that the
use of such earnings and income is limited by or pursuant to law to its Electric
System and (c) the proceeds derived by the Participant directly or indirectly from
the sale, lease or other disposition of all or a part of the Electric System, but the
term Revenues shall not include (i) customers' deposits or any other deposits
subject to refund until such deposits have become the property of the Participant
or (ii) contributions from customers for the payment of costs of construction of
facilities to serve them. In regard to BART, BART shall generate revenues
sufficient to cover its obligations under this Amended Agreement through tariffs,
fees, or other sources of revenue except through such sources as may be limited
by law.
1.1.44 "Scheduling Protocols" means the contractual or
other arrangements between NCPA and the relevant Participant concerning the
scheduling, delivery and metering of electricity.
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1.1.45 "Security Account" means the account established by
NCPA and funded by the Participants in accordance with Section 5.5, the funds
of which are available for use by NCPA in accordance with the terms and
conditions hereof.
Agreement.
in Section 7.3.
1. 1.46 "Term" has the meaning set forth in Section 8.
1.1.47 "Voting Member" means a party to the Joint Powers
1.1.48 "Withdrawing Participant" has the meaning set forth
1.2 Rules of Interpretation.
As used in this Amended Agreement (including the Recitals hereto), unless in
any such case the context requires otherwise: the terms "herein," "hereto,"
"herewith" and "hereof" are references to this Amended Agreement taken as a
whole and not to any particular provision; the term "include," "includes" or
"including" shall mean "including, for example and without limitation;" and
references to a "Section," "subsection," "clause," or "Exhibit" shall mean a
Section, subsection, clause or Exhibit of this Amended Agreement, as the case
may be. All references to a given agreement, instrument or other document shall
be a reference to that agreement, instrument or other document as modified,
amended, supplemented and restated through the date as of which such
reference is made, and reference to a law, regulation or ordinance includes any
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amendment or modification thereof. A reference to a "person" includes any
individual, partnership, firm, company, corporation, joint venture, trust,
association, organization or other entity, in each case whether or not having a
separate legal personality and includes its successors and permitted assigns. The
singular shall include the plural and the masculine shall include the feminine,
and vice versa.
Section 2. Effective Date of Agreement.
This Amended Agreement shall become effective upon the latest date of
execution by a Party hereto ("Effective Date"), provided that all the Participants
listed in Exhibit A have executed the Amended Agreement prior to January 31,
2008, upon which, NCPA's General Manager shall notify all Participants of the
Effective Date. A copy of such notification shall be affixed to the official copy of
this Amended Agreement.
Section 3. Procurement Process.
3.1 Request for Proposals and PPA(s).
All procurement activities undertaken pursuant to this Amended Agreement
shall be in accordance with the form of Request for Proposals and accompanying
PPA(s) attached hereto and incorporated herein by reference as Exhibits F & G
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respectively, as may be amended in accordance with Section 10.5. NCPA
represents that the following conditions will be observed when undertaking its
procurement activities ("Procurement Conditions"):
(i) Each Proposed Resource shall be an Eligible
Renewable Resource;
(ii) The Average Capacity of all NGPP Resources shall
not exceed the Maximum Average Capacity;
(iii) The period of time for which NCPA is obligated to
accept and pay for electricity under any singular PPA
shall not exceed twenty-five years,
(iv) The Contract Price for purchasing electricity under
any singular PPA shall not exceed the Maximum
Contract Price;
(v) The PPA(s) will be approved as to form by NCPA's
General Counsel;
(vi) Where Procurement of electricity from a Proposed
Resource requires that NCPA obtain financing, each
PPA shall be subject to NCPA obtaining reasonable
financing; and
(vii) All Environmental Attributes associated with the
Proposed Resource will be transferred to NCPA;
3.2 Participant Approval of Procurement Process
By executing this Amended Agreement, the Participant acknowledges and
agrees to be bound by the procurement process contained in or referenced by the
Request for Proposals and PPA(s) approved by the Participants pursuant to
Section 6.2 as provided for herein.
3.3 Approval of NGPP Resources.
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3.3.1 Identification of Resources and Request for Review.
For all Eligible Renewable Resource that NCPA seeks to include as a NGPP
Resource ("Proposed Resource"), NCPA will present to the Conunission a
Preliminary Resource Schedule, substantially in the form of Exhibit B attached
hereto, together with an estimated budget for completing the acquisition and or
development of the Proposed Resource. Notwithstanding any other provision in
this Amended Agreement to the contrary, at the time the Proposed Resource is
submitted to the Commission, each Participant shall be afforded an opportunity
to discontinue their participation in the Procurement ("Opt -Out") of an
otherwise Eligible Renewable Resource consistent with the procedures provided
in section 6.2 below, and within the following time limitations:
(i) At the first NCPA Commission meeting following the
Effective Date each Participant shall be provided with
a Preliminary Resource Schedule and estimated
budget for all Proposed Resources qualifying under
the initial Request for Proposals issued on September
25, 2006.
(ii) For each Request for Proposals issued after the
Effective Date, NCPA shall prepare a Preliminary
Resource Schedule and estimated budget based upon
the best information available to NCPA staff within
180 days of the date of issuance of the Request for
Proposals, and submit it to the Participants at the next
regularly scheduled NCPA Commission meeting.
3.3.2 Review by Oversight Committee. At the General
Manager's discretion, the NGPP Oversight Committee may be requested to
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review and provide written comments and recommendations to NCPA on
whether to include the relevant Proposed Resource as an NGPP Resource. If the
General Manager so requests, the NGPP Oversight Committee shall be provided
with copies of relevant PPA(s) proposed to be executed by prospective
counterparties any other information or materials prepared in connection with
the evaluation of such Eligible Renewable Resource and produce such other
summaries or analyses as the Commission or the NGPP Oversight Committee
may reasonably request.
3.3.3 Action by NCPA. NCPA shall take action to add a
Proposed Resource as a NGPP Resource for those Participants choosing not to
Opt -Out of participating in the acquisition of an otherwise Eligible Renewable
Resource pursuant to the provisions of Sections 3.3 and 6.2.
3.4 Additional Provisions Related to Development Opportunities
NCPA shall conduct investigations and analysis of potential development
opportunities for Eligible Renewable Resources on behalf of the Participants.
Such investigations and analysis may include but are not limited to: resource
selection, market analysis, site acquisition, cost analysis of permitting and
construction and partnership opportunities. At the General Manager's
discretion, the NGPP Oversight Committee may review the recommendations of
NCPA and comment accordingly. NCPA shall annually budget for these
developmental expenditures as part of the NGPP Program Budget
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The Participants agree that any decision to acquire a physical
resource asset shall be made pursuant to Section 6.2 and shall be subject to the
terms and conditions of a new development Third Phase Agreement undertaken
in accordance with the Facilities Agreement. At the time the Third Phase
Agreement is presented to the Comrnission for finalizing the development of an
Eligible Renewable Resource the remaining Participants shall also be provided
with a final opportunity to Opt -Out of the acquisition of the Proposed Resources.
Should a Participant exercise its Opt -Out right at this stage the remaining
Participants' Resource Allocation Percentages shall be adjusted proportionately,
and the remaining Participants shall be liable for, and entitled to, the remaining
costs and benefits of acquiring the Proposed Resources. No NCPA action related
to development opportunities shall require any Participant to commit to more
power than its Average MW Participant election stated in Exhibit A.
3.5 Delivery of Electricity / Allocation of Environmental
Attributes. Any electricity delivered to NCPA from an NGPP Resource shall be
delivered to each Participant in accordance with such Participant's Participation
Percentage, or Resource Allocation Percentage as applicable, and each
s
Participant shall accept and pay for its relevant percentage of such electricity.
NCPA may allocate electricity generated by, and/or delivered to NCPA from,
any particular NGPP Resource among the Participants in such percentages as
NCPA may, in its reasonable discretion and subject to the approval of the
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affected Participant, determine are necessary, desirable, or appropriate; provided
that the aggregate quantity of electricity delivered to any Participant during a
calendar month shall equal such Participant's Participation Percentage, or
Resource Allocation Percentage as applicable, of the aggregate amount of
electricity generated and/or delivered to NCPA from all NGPP Resources
during the relevant calendar month. Such electricity shall be delivered to the
Participants in accordance with the Scheduling Protocols. Environmental
Attributes, as defined herein, obtained by NCPA as a result of performance
under this Amended Agreement shall likewise be transferred to each Participant
in accordance with such Participant's Participation Percentage, or Resource
Allocation Percentage as applicable.
3.6 Capacity Entitlement.
The collective capacity available from the NGPP Resources for planning and
reliability purposes shall be allocated among the Participants in accordance with
their respective Participation Percentage, or Resource Allocation Percentage as
applicable.
3.7 Payments to Counterparties.
NCPA shall pay all NGPP Project Costs using operating or Security Account
funds from amounts paid to NCPA in accordance with Section 5, or such other
sources as may be agreed upon in writing by the Parties from time to time.
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3.8 Removal of NGPP Resources from NGPP.
Any NGPP Resource that delivers electricity to NCPA under a PPA shall be
automatically removed from the NGPP on the date its PPA terminates or expires.
Any other NGPP Resource shall continue to be included in the NGPP until such
time as the Participants approve removing it from the NGPP and approves the
subsequent use of such NGPP Resource, including whether such NGPP Resource
should be sold or decommissioned pursuant to Section 6.2. Any proceeds or
costs associated with removing an NGPP Resource from the NGPP shall be
allocated among the Participants in accordance with the Participation
Percentages, or Resource Allocation Percentages as applicable, unless otherwise
agreed upon in writing by the Participants.
Section 4. Cooperation and Further Assurances.
Each of the Parties agrees to provide such information, execute and deliver any
instruments and documents and to take such other actions as may be necessary
or reasonably requested by any other Party which are not inconsistent with the
provisions of this Amended Agreement and which do not involve the
assumption of obligations other than those provided for in this Amended
Agreement, in order to give full effect to this Amended Agreement and to carry
out the intent of this Amended Agreement. Further, the Parties agree to
cooperate and act in good faith in connection with obtaining any financing
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required in order to Procure electricity from an NGPP Resource, including with
respect to negotiating and executing any agreements to implement any financing
arrangements.
Section 5. Budget, Operating Fund, Invoicing.
5.1 "NGPP Cost Allocation."
NGPP Program Costs allocated to the Participants under this Amended
Agreement and through the NCPA Annual Budget shall be in proportion to the
Participation Percentages; or in case a Participant elects to Opt -Out of the
procurement of a Proposed Resource, NGPP PPA Costs and NGPP Development
Costs shall be allocated to the Participants in proportion to the Resource
Allocation Percentages for the Proposed Resource as detailed in Exhibit A.
5.2 Payment of NGPP Project Costs
Each Participant shall be obligated to pay NCPA for its allocated share of NGPP
Project Costs in proportion to its Participation Percentage, or Resource Allocation
Percentage as applicable, and shall maintain working capital in accordance with
NCPA's Annual Budget, and fund its Security Account obligation as required
under this Amended Agreement.
5.3 Applicable Percentages of NGPP Project Costs and Budgets.
Each Participant's applicable share of NGPP Program Costs shall be in
proportion to its Participation Percentage. If a Participant has exercised its
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right(s) to Opt -Out of an otherwise Eligible Resource, the remaining Participants'
share of NGPP PPA Costs or NGPP Development Costs shall be in proportion to
their applicable Resource Allocation Percentages. NCPA shall be responsible for
insuring that the respective budget estimates for each such category of costs are
settled in accordance with Section 5.4.3 below.
5.4 Budgets and Budget Settlements.
5.4.1 Relation to the NCPA Annual Budget. Prior to the
beginning of each fiscal year for which no budget has been adopted and for each
fiscal year for which a budget will be adopted, NCPA, in conjunction with the
Participants, shall prepare and deliver to each Participant a NGPP Project Budget
estimating the NGPP Project Costs expected to be incurred over such fiscal year
as a result of this Amended Agreement. Any Participant may request a detailed
accounting of NCPA costs included as NGPP Project Costs in the NCPA Annual
Budget and such Participant shall pay the reasonable costs of such accounting
review..
5.4.2 The Participants' financial obligation to pay for costs
under this Amended Agreement shall be adjusted if any Participant chooses to
discontinue its participation in the acquisition bf a Proposed Resource in
accordance with the "Opt -Out" provision in section 3.4, upon which, each
Participant's Project Participation Percentages shall be converted to Resource
Allocation Percentages as a separate schedule to Exhibit A. Each Participant
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exercising its right to Opt -Out of the acquisition process for a Proposed Resource
shall be deemed to have a Resource Allocation Percentage of zero percent (0%)
for that Proposed Resource, and shall cease to be obligated for those costs NCPA
incurs going forward to acquire that resource but, remain obligated for costs
incurred up to the date that the Participant exercised its right to Opt -Out. The
Project Participation Percentages for those Participants that do not Opt -Out of
the acquisition of a Proposed Resource shall be increased proportionately to
assume the financial obligations of Participant(s) choosing to Opt -Out of a
Proposed Resource. NCPA will promptly inform Participants of budget and cost
allocation changes associated with Participant decisions to Opt -Out of otherwise
eligible resource acquisitions.
5.4.3 Final NGPP Budget Settlement. A final NGPP Project
Budget settlement for the prior fiscal year will be produced each year after the
annual audit is completed. This shall normally occur on or prior to December 1
of each year.
5.5 Security Account.
5.5.1 Initial Deposit. Prior to the procurement of new
Eligible Renewable Resources, but not later than the beginning of a new fiscal
year at NCPA, each Participant shall deposit into the security account its
estimated obligation for NGPP Project Costs. The amount of the deposit shall be
an amount equal to each Participant's Participation Percentage, or Resource
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Allocation Percentage, as applicable, of the three (3) highest months of: (a) -the
new fiscal year, or (b) the then immediately following twelve (12) months of
NGPP Project Costs as that term is defined in Section 1.1.29 of this Amended
Agreement.
5.5.2 Subsequent Deposits. Quarterly, and within thirty
(30) days following execution by NCPA of any PPA or any financing
commitment for the development of an Eligible Renewable Resource, NCPA
shall review and revise its estimate of NGPP PPA Costs for the succeeding
twelve (12) months. Following such review, NCPA shall determine whether
each Participant has a sufficient balance in the Security Account. To the extent
that any Participant's balance in the Security Account is greater than one
hundred and ten percent (110%) of the deposit amount defined in section 5.5.1,
NCPA shall credit such amount to the Participant's next invoice. To the extent
that any Participant's balance in the Security Account is less than ninety percent
(90%) of the deposit amount defined in section 5.5.1, NCPA shall add to such
Participant's next invoice an amount necessary to cause such Participant's
balance in the Security Account to be sufficient.
5.5.3 Use of Security Account Funds. NCPA may use any
and all funds deposited into the Security Account to pay any NGPP Project
Costs, including making payments to counterparties under any PPA, payment of
consultants, attorneys and accountants performing services related to
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Procurement activities, reimbursing NCPA for its internal costs associated with
performing its obligations under this Amended Agreement, and paying any
Claims, without regard to any individual Participant's balance in the Security
Account or proportionate share of NGPP Project Costs and irrespective of
whether NCPA has issued an invoice for such NGPP Project Costs to the
Participants or whether a Participant has made timely payments of invoices.
5.5.4 Special or Emergency Assessments. In the event that
the funds in the Security Account are insufficient to allow payment of an invoice,
demand, request for further assurances, or Claims, NCPA shall notify all
Participants and then prepare and send a special or emergency assessment to the
Participants. Each Participant shall pay to NCPA such assessment when and if
assessed by NCPA within five (5) Business Days following the invoice date of the
assessment.
5.5.5 Accounting and Interest. NCPA shall maintain a
record of each Participant's deposits into and payments from the Security
Account. Interest earned on the Security Account shall be credited to the
Participants in accordance with the Participants share of the balance in the
Security Account. Any lossesY in the Security Accotint shall be allocated among
the Participants in accordance with their Participation Percentages.
5.5.6 Return of Funds. On the termination of this
Amended Agreement with respect to a Participant or a permitted withdrawal of
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a Participant in accordance with this Amended Agreement, the affected
Participant or Participants may apply to NCPA for the return of their share of
Security Account funds ninety (90) days after the effective date of such
termination or withdrawal. NCPA shall, in its sole discretion, as determined by
a vote of the Participants, excluding the vote of the withdrawing or terminated
Participant(s) that are members thereof, estimate the then outstanding liabilities
of the Participant(s), including any estimated contingent liabilities and shall
retain all such funds until all such liabilities have been fully paid or otherwise
satisfied in full. The balance of the Participant's share of the Security Account
will be refunded to the Participant.
5.6 Invoicing.
5.6.1 Invoices. As part of NCPA's regular, monthly,
advance billing or by separate special invoice, as required in the circumstances,
NCPA will issue an invoice to each Participant for its proportionate share of the
NGPP Project Costs (or any adjustments thereto) based on such Participant's
Participation Percentage and/or Resource Allocation Percentages as applicable.
Such invoice may include estimated costs and estimated settlement and meter
data. Each invoice shall include: (i) the total NGPP Project Costs for such month`
and the relevant Participant's share thereof; (ii) the quantity of electricity and
Environmental Attributes, by NGPP Resource, procured on behalf of such
Participant (or an estimate thereof) and the unit price for such electricity; (iii)
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appropriate settlement and meter data (or an estimate thereof); (iv) any
adjustments to prior invoices required based on actual data received that was
estimated in a previous invoice; (v) notice of the amount, if any, that NCPA has
paid or expects to pay using funds available in the Security Account; and (vi)
amounts due from (or credited to) such Participant under Section 5.5.2.
5.6.2 Payment of Invoices. All invoices delivered by NCPA
hereunder are due and payable no later than thirty (30) days following the
invoice date; provided, however, that any amount due on a day other than a
Business Day may be paid on the following Business Day. NCPA may apply a
Participant's share of the Security Account to the payment of all or any portion of
an invoice issued to such Participant, provided that application of such funds
from the Security Account shall not relieve the Participant from any late payment
charges pursuant to Section 5.6.3. To the extent that NCPA applies funds from
the Security Account to pay an amount due under an invoice, following receipt
of payment of such invoice by the relevant Participant, NCPA shall deposit the
relevant portion of the payment into the Security Account and credit such
deposit to such Participant.
5.6.3 Late Payments. Any amount due and not paid by a
Participant in accordance with Section 5.6.2 shall bear interest computed on a
daily basis until paid at the lesser of (i) the per annum prime rate (or reference
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rate) of the Bank of America NT&SA then in effect, plus two percent (2%) or (ii)
the maximum rate permitted by law.
5.7 Auditing and Settlement Data.
5.7.1 Settlement Data. NCPA will make metering and
settlement data available to the Participants. Procedures and formats for the
provision of such data will be as established by the Participants and NCPA from
time to time.
5.7.2 Audit Rights. Each Participant shall have the right to
audit any data created or maintained by NCPA pursuant to this Amended
Agreement on thirty (30) days prior written notice (unless otherwise agreed by
NCPA). All audit rights shall be exercised in accordance with the rules and
procedures adopted by NCPA.
5.8 Revenue Covenant
Any failure of a Participant to meet its obligations hereunder or to cure such
failure in a timely manner shall constitute a Default and the Defaulting Party
shall be subject to such remedies of NCPA as provided for herein. Each
Participant covenants and agrees (i) to continue to pay or advance to NCPA,
from its electric department revenues only or, in the case of BART, its tariffs, fees
or other sources of revenue provided that such sources shall not include any
sums derived from sources the use of which is limited by law to expenditures
other than operating expenses, its percentage share of the costs authorized by
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Participants in accordance with this Amended Agreement in connection with its
participation in the Project. Each Participant further agrees that it will fix the
rates and charges for services provided by its electric department, or in the case
of BART, its general revenues, so that it will at all times have sufficient money in
its department revenue funds to meet this obligation; (ii) to make payments
under this Amended Agreement from the Revenues of, and as an operating
expense of, its Electric System, or in the case of BART, its general revenues; (iii)
to make payments under this Amended Agreement whether or not there is an
interruption in, interference with, or reduction or suspension of services
provided under this Amended Agreement; such payments not being subject to
any reduction, whether by offset or otherwise, and regardless of whether any
dispute exists provided such interruption, interference or reduction in services is
caused by forces constituting an Act of God and not reasonably contemplated by
the Parties; and (iv) to operate its Electric Systems, or in the case of BART, its
transit system, in an efficient manner and to maintain its facilities in good repair,
condition and working order so that: (a) the Participant's obligations to make
payments under this Amended Agreement are not adversely affected or
threatened; and (b) NCPA's bond rating and ability to negotiate and enter into a °
Power Purchase Agreement are not adversely affected or threatened.
Section 6. Administration of Agreement.
6.1 General.
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NCPA has the sole overall responsibility and authority for the administration of
this Amended Agreement. Any acts, decisions or approvals taken, made or
sought by NCPA under this Amended Agreement shall be taken, made or
sought, as applicable, in accordance with NCPA's Constitutive Documents and
Section 6.2.
6.2 Action by Participants.
(a) Forum: Whenever any action anticipated by this
Amended Agreement is required to be taken by the Participants, including but
not limited to, the expressed authorization to add or to detract from the list of
Eligible Renewable Resources, such actions shall be taken at a regular or special
meeting of the NCPA Commission but shall be participated in only by those
Commissioners, or their designated alternates, who are Participants.
(b) uorum: A quorum at NCPA Commission meetings for
purposes of acting upon matters relating to this Amended Agreement shall
consist of Commissioners, or their designated alternates representing at least
three Participants having a combined majority interest based upon Participation
Percentages. Should the number of Participants choosing to Opt -Out of the
procurement of an otherwise Eligible Renewable Resource reduce the number of
remaining Participants to three or less, then a quorum shall consist of all
remaining Participants.
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(c) Voting: Each Participant shall have the right to cast one
vote with respect to matters pertaining to this Amended Agreement, with a
majority vote of the Participants required for action subject to the following
exceptions;
i. Upon request of any Participant representative, the
voting on an issue shall be by Participation
Percentage with a 65% or more favorable vote from
two or more Participants necessary to carry the
action.
ii. After any decision related to this Amended
Agreement is taken by the affirmative vote of
Participants holding Participation Percentages of less
than 65%, the action can be reviewed and revised if a
Participant gives notice of intention to seek such
review and revision to NCPA and each of the other
Participants within ten (10) days following the date
on which such action was taken. Upon receipt of
such a request for reconsideration, the chairman of
the Commission shall agendize the matter for
reconsideration at the next regular meeting of the
Commission or at a special meeting if the
circumstances so warrant. The action shall be upheld
upon the affirmative vote of authorized
representatives of two or more Participants holding at
least 65% of the total Participation Percentages. Any
action taken upon reconsideration shall be final.
Any one Participant may exercise its right to Opt -Out
of an otherwise Eligible Renewable Resource
acquisition without regard to the action of any other
Participant. Any Participant who Opts -Out of an
otherwise Eligible Resource shall abstain from voting
thereafter as to issues relating to that resource.
6.3 NGPP Oversight Committee.
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NCPA may seek input and recommendations from the Participants regarding
performance under this Amended Agreement. Accordingly, the General
Manager of NCPA may establish, in his discretion, a committee comprised of
Participant Representatives which may meet from time to time. Such committee
shall be referred to as the NGPP Oversight Committee. The NGPP Oversight
Committee may report to NCPA staff or the General Manager of NCPA, as the
General Manager deems appropriate. The NGPP Oversight Committee may
adopt rules of procedure consistent with the provisions of this Amended
Agreement as it deems appropriate.
6.4 Participant Representatives.
If the General Manager establishes an NGPP Oversight Committee, each
Participant shall:
(i) Authorize and designate one representative
("Participant Representative"), and in its discretion,
one or more alternates ("Designated Alternate") to
serve on the NGPP Oversight Committee;
Authorize its Participant Representative and
Designated Alternates to vote on behalf of such
Participant on recommendations on matters
pertaining to this Amended Agreement; -and
Deliver to NCPA, written notice containing the name
and contact information of such Participant's
Participant Representative and Designated
Alternate(s), if any.
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Section 7. Participation Percentage; Admission and Withdrawal of
Participants.
7.1 Participation Percentages and Resource Allocation
Percentages.
The Participation Percentages and Resource Allocation Percentages of each
Participant are as set forth in Exhibit A, as the same may be modified from time
to time in accordance with the terms and conditions hereof.
7.2 Admission of New Participants.
Following the Effective Date of this Amended Agreement, no Member
("Additional Member') may execute this Amended Agreement and become a
Participant unless one or more of the Participants ("Allocating Participants")
elect to allocate a portion of its Participant Percentage to such Member. Upon
agreement of the Allocating Participant and the Additional Member, the
Additional Member shall deliver to NCPA and each other Participant the written
agreement between the Additional Member and the Allocating Participant(s)
indicating the agreed upon change in Participation Percentage(s), a counterpart
of this Amended Agreement executed by the Additional Member, evidence that
such agreements have been approved in accordance with its applicable
Constitutive Documents and payment of such Member's share of the Security
Account. Any reduction in any Allocating Participant's share of the Security
Account shall be credited to the Allocating Participants in accordance with
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Section 5.5.2. Upon receipt of all required documents, NCPA shall provide to all
Participants, an updated Exhibit A reflecting the revised Participation
Percentages.
7.3 Withdrawal of Participants.
7.3.1 Requirements and Process. Subsequent to the
Effective Date of this Amended Agreement, any Participant may voluntarily
withdraw from this Amended Agreement ("Withdrawing Participant") upon
written agreement with one or more Participants ("Adjusting Participant") to
assume the Withdrawing Participant's full Participation Percentage and
provided further that such withdrawal does not violate any applicable financing
conditions. The Withdrawing Participant shall provide notice of intent to
withdraw to NCPA together with the applicable agreement between the
Withdrawing Participant and the Adjusting Participant(s) regarding assumption
of the Withdrawing Participant's Participation Percentage along with evidence
that such agreement was approved in accordance with applicable Constitutive
Documents. Upon receipt of all required documents, NCPA shall send a revised
Exhibit A to all Participants reflecting the new allocation of Participation
Percentages.
7.3.2 Associated Costs. A Withdrawing Participant shall
reimburse NCPA for any and all costs resulting from its withdrawal, including
but not limited to the legal, accounting, and administrative costs of winding up
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and assuring the complete satisfaction and discharge of the Withdrawing
Participant's obligations.
7.3.3 No Effect on Prior Liabilities. Withdrawal by any
Participant will not terminate any ongoing or un -discharged contingent liabilities
or obligations resulting from this Amended Agreement until they are satisfied in
full or such Withdrawing Participant has provided a mechanism reasonably
acceptable to NCPA and the remaining Participants, for the satisfaction in full
thereof.
Section 8. Term and Termination.
The term ("Term') of this Amended Agreement shall commence on the Effective
Date and shall continue until (i) terminated by consent of all of the Participants
that have not previously withdrawn from this Amended Agreement in
accordance with Section 7.3 or otherwise voluntarily or involuntarily had their
participation in this Amended Agreement terminated or (ii) all NGPP Resources
have been removed from the NGPP.
Section 9. Default and Remedies
9.1 Events of Default.
An event of default under this Amended Agreement shall exist with respect to a
Party ("Defaulting Party") upon the occurrence of any one or more of the
following:
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(i) if any Party fails to make any payment when due
hereunder five (5) Business Days after receipt of
notice given by NCPA of such non-payment; or
if any Party fails to perform any other covenant or
obligation under this Amended Agreement where
such failure is not cured within ten (10) days
following receipt of a notice from NCPA demanding
cure (provided that this shall not apply to any failure
to snake payments (which is covered by Section 9.1
(i))); or
(iii) if any representation or warranty of any Party
material to the transactions contemplated hereby shall
prove to have been false or misleading in any material
respect when made and that Party does not cure the
facts underlying such incorrect representation or
warranty so that the representation or warranty is
corrected, to the satisfaction to the other Participants,
witl-dn ten (10) days of the date of receipt of notice
from any other Party demanding cure; or
(iv) if any Party is in default or in breach of any of its
covenants under any other agreement with NCPA
and such default or breach is not cured within the
time periods specified in such agreement; or
(v) the failure of NCPA to perform any covenant or
obligation under this Amended Agreement following
a ten (10) day notice to cure by any non -defaulting
Participant.
9.2 Cure of an Event of Default.
An Event of Default shall be deemed cured only if such default shall be
remedied within the time period specified in Section 9.1, above, as may be
applicable after written notice has been sent to the Defaulting Party from NCPA
specifying the default and demanding that the same be remedied provided that
failure of a Party to provide such notice shall not be deemed a waiver of such
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default. If such default is not reasonably capable of cure within the applicable
time period specified herein, then the default shall not be deemed an Event of
Default if the Defaulting Party commences to remedy the default within the
applicable time period specified herein and thereafter diligently pursues such
remedy until such default is fully cured; provided, however, that in no event
shall any Party be entitled to longer than thirty (30) days to cure an Event of
Default with respect to any payment obligation under this Amended Agreement
after receipt of written notice thereof.
9.3 Participation Rights of Defaulting Party.
Notwithstanding anything herein to the contrary, upon the occurrence of an
Event of Default and until such Event of Default is cured, the Participant that is
the Defaulting Party shall not have the right to participate under Section 6.2 on
any matter with respect to this Amended Agreement.
9.4 Remedies in the Event of Default.
9.4.1. Remedies of NCPA. Upon the occurrence of an Event
of Default where a Participant is the Defaulting Party, without limiting its other
rights or remedies available under this Amended 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 Participant, NCPA may:
(i) suspend the provision of services under this
Amended Agreement to such Defaulting Party,
including the delivery of electricity and other
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attributes of any NGPP Resources until the Event of
Default is cured;
(ii) demand that the Defaulting Party provide further
assurances that it is ready, willing and able to meet its
obligations under this Amended Agreement; and
(iii) terminate this Amended Agreement as to the
Defaulting Party on ten (10) days prior written notice
to the Defaulting Party and following approval of the
non -defaulting Participants; and
(iv) Subject to limitations as otherwise referenced in this
Amended Agreement, NCPA shall have the right to
pursue all remedies under law or in equity against
any Defaulting Participant in curing or mitigating
such default. Any Defaulting Party shall remain liable
under this Amended Agreement for any damages
resulting from such default including damages
resulting from subsequent purchases as authorized by
this Amended Agreement.
9.4.2 Sale/Transfer of Participants Account Upon Default.
Upon any default of a Participant caused by the failure of such Participant to pay
any sums due, and provided that such default is not cured in a timely manner,
then NCPA shall use its best efforts to sell and transfer for the defaulting
Participant's account all or a portion of the Participant's capacity and/or energy
and/or Environmental Attributes for the remainder of the term of this Amended
Agreement. The price to be paid to, NCPA by the Non -Defaulting Participants
for the Defaulting Participant's capacity, energy, or environmental attributes
shall be at cost as opposed to market price. The Defaulting party shall receive no
compensation from such sale. Notwithstanding that all or any portion of the
Participant's capacity, energy or environmental attributes is sold or transferred,
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the Participant shall remain liable for all of its obligations hereunder unless
released therefrom by NCPA and the transferee upon assumption by the
transferee. To the extent that any portion of the defaulting Participant's capacity
and/or energy is unable to be sold by NCPA, then the Participation Percentages
of each non -defaulting Participant shall be automatically increased for the
remaining term of this Amended Agreement pro -rata with those of the other
non -defaulting Participants and the defaulting Participant's Participation
Percentage be reduced accordingly, but only for the purpose of computing the
Percentages of the non -defaulting Participants. The sum of any increases of a
non -defaulting Participant's Participation Percentage shall not exceed twenty-
five (25) percent of the non -defaulting Participant's original Participation
Percentage on an accumulated basis without the written consent of such non -
defaulting Participant.
9.4.3 Remedies of Participants. Upon the occurrence of an
Event of Default, and following the applicable cure periods, where NCPA is the
Defaulting Party, the Participants may, without limiting their other rights or
remedies available under this Amended Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action the Participants may have against NCPA, terminate this
Amended Agreement in whole, subject to the provisions of Section 9.5.4.
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9.4.4 Special Covenants Regarding Security Account. In
the event that a Participant's balance in the Security Account is insufficient to
cover all invoices for NGPP Project Costs sent to such Participant, then, without
limiting NCPA's other rights or remedies available under this Amended
Agreement, at law or inequity, such Participant shall cooperate in good faith
with NCPA and shall cure the default as rapidly as possible, on an emergency
basis, taking all such action as is necessary, including, but not limited to, raising
rates and charges to its customers to increase its Revenues to replenish its share
of the Security Account as provided herein, drawing on its cash -on -hand and
lines of credit, obtaining further assurances by way of credit support and letters
of credit, and taking all such other action as will cure the default quickly and
without delay.
9.5 Effect of Termination or Suspension.
9.5.1 Generally. The suspension or termination of this
Amended Agreement will not terminate, waive, or otherwise discharge any
ongoing or undischarged liabilities, contingent liabilities or obligations arising
from this Amended Agreement until such obligations are satisfied in full, and all
of the costs incurred by NCPA in connection with such suspension or
termination, including reasonable attorney fees, the fees and expenses of other
experts, including auditors and accountants, other costs and expenses that NCPA
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is entitled to recover under this Amended Agreement, and other reasonable and
necessary costs associated with any and all of the remedies, are paid in full.
9.5.2 Suspension by NCPA. If performance of all or any
portion of this Amended Agreement is suspended by NCPA with respect to a
Participant in accordance with Section 9.4.1 (i), such Participant shall pay any
and all costs incurred by NCPA as a result of such suspension including
reasonable attorney fees, the fees and expenses of other experts, including
auditors and accountants, other reasonable and necessary costs associated with
such suspension and any portion of the NGPP Project Costs that were not
recovered from such Participant as a result of such suspension.
9.5.3 Termination by NCPA. If this Amended Agreement
is terminated by NCPA with respect to a Participant in accordance with Section
9.4.1 (iii), (i) such Participant shall pay any and all costs incurred by NCPA as a
result of such termination including reasonable attorney fees, the fees and
expenses of other experts, including auditors and accountants, other reasonable
and necessary costs associated with such suspension and any portion of the
NGPP Project Costs that were not, or will not be, recovered from such Participant
as a result of such termination, t and (ii) such Participant's Participation
Percentage shall be allocated among the remaining Participants in like manner as
defined in Section 9.4.2; provided however, if NCPA terminates this Amended
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Agreement with respect to the last remaining Participant, then this Amended
Agreement shall terminate.
9.5.4 Termination by Participants. If this Amended
Agreement is terminated by all Participants in accordance with Section 9.4.3, or
by unanimous consent of all of the Parties hereto, then the Participants shall pay
to NCPA all previously unpaid NGPP Project Costs incurred as of the date of
such termination, and following such termination, the Participants shall
cooperate and act in good faith to negotiate and agree upon the method of
allocating among the Participants in proportion to their respective Participation
Percentages the costs and benefits of the NGPP Resources, all PPAs then in effect,
and any financing agreements or commitments and any matters pertaining to the
administration, management, control, operation and maintenance of the NGPP
Resources. NCPA shall reasonably cooperate with the Participants in connection
with implementing the foregoing and the Participants shall indemnify NCPA for
any costs incurred in corulection therewith, including reasonable attorney fees,
fees and expenses of other experts, including auditors and accountants and other
reasonable and necessary costs. If the Parties are unable to reach agreement as to
the foregoing, then the Parties agree to submit the matter to mediation with a
mutually agreed upon mediator. If the Parties are still unable to reach agreement
following mediation, then the matter shall be submitted to binding arbitration
subject to the rules of the American Arbitration Association, the costs of such
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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arbitration, including NCPA's costs, being borne in proportion among the
Participants according to their Participation Percentages.
Section 10. Miscellaneous.
10.1 Confidentiality.
The Participants and NCPA will keep confidential all confidential or trade secret
information made available to them in connection with this Amended
Agreement, to the extent possible, consistent with applicable laws, including the
California Public Records Act and the California Constitution. It shall be the
responsibility of the holder of the claim of confidentiality or trade secret to
defend at its expense against any request that such information be disclosed.
Confidential or trade secret information shall be marked or expressly identified
as such.
10.2 Indemnification and Hold Harmless
Subject to the provisions of Section 10.4, each Participant agrees to indemnify,
defend and hold harmless NCPA and its Members, including their respective
entities governing officials, officers, agents, and employees, from and against any
and all claims, suits, losses, costs, damages, expenses and liability of any kind or
nature, including reasonable attorneys' fees and the costs of litigation, including
experts ("Claims"), to the extent caused by any acts, omissions, breach of
contract, negligence (active or passive), gross negligence, recklessness, or willful
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misconduct of a Participant, its governing officials, officers, employees,
subcontractors or agents, to the maximum extent permitted by law.
10.3 Several Liabilities.
No Participant shall be liable under this Amended Agreement for the obligations
of any other Participant, and each Participant shall be solely responsible and
liable for performance of its obligations under this Amended Agreement, except
as otherwise provided for herein, and the obligation of each Participant under
this Amended Agreement is a several obligation and not a joint obligation with
those of the other Participants.
10.4 No Consequential Damages.
FOR ANY BREACH OF ANY PROVISION OF THIS AMENDED AGREEMENT
FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS
PROVIDED IN THIS AMENDED AGREEMENT, THE LIABILITY OF THE
DEFAULTING PARTY SHALL BE LIMITED AS SET FORTH IN SUCH
PROVISION, AND ALL OTHER DAMAGES OR REMEDIES ARE HEREBY
WAIVED. IF NO REMEDY OR MEASURE OF DAMAGE IS EXPRESSLY
PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY SHALL BE
LIMITED TO ACTUAL, DAMAGES ONLY AND ALL OTHER DAMAGES AND
REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL NCPA OR ANY
PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS,
REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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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 RELEASES EACH
OTHER AND EACH OF SUCH PERSONS FROM ANY SUCH LIABILITY.
10.5 Amendments.
Except where this Amended Agreement specifically provides otherwise, this
Amended Agreement may be amended only by a written instrument executed by
the Parties with the same formality as this Amended Agreement.
Notwithstanding the above, the Parties hereby agree that the Participants,
through their respective NCPA Commission representatives, have the discretion
to modify the provisions of the following Exhibits pursuant to Section 6.2: A
(Participation Percentages and Resource Allocation Percentages), C (Approved
Resource Schedules), and G (Form of Power Purchase Agreement). The Parties
further agree that the NCPA General Manager has the discretion to modify the
provisions of Exhibits B (Form of Resource Schedule) and F (Form of Request for
Proposals).
10.6 Severability.
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In the event that any of the terms, covenants or conditions of this Amended
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 Amended 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 Amended Agreement.
10.7 Governing Law.
This Amended Agreement shall be interpreted, governed by, and construed
under the laws of the State of California.
10.8 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 Amended Agreement or the scope
thereof.
10.9 Notices.
Any notice, demand or request required or authorized by this Amended
Agreement to be given to any Party shall be in writing, and shall either be
personally delivered to the Participant Representative and the secretary of the
Commission or transmitted to the Participant and the secretary at the address
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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shown on the signature pages hereof. The designation of such address may be
changed at any time by written notice given to the secretary of the Commission
who shall thereupon give written notice of such change to each Participant. Any
notices required hereunder shall also be delivered to Participant's Commissioner.
10.10 Warranty of Authority.
Each Participant, and NCPA, represents and warrants that it has been duly
authorized by all requisite approval and action to execute and deliver this
Amended Agreement and that this Amended Agreement is a binding, legal, and
valid agreement enforceable in accordance with its terms as to. the Participant
and as to NCPA. Upon the execution of this Amended Agreement, each
Participant shall deliver to NCPA evidence of such Participant's authority to
enter into this Amended Agreement and that such authority was exercised in
accordance with such Participant's Constitutive Documents.
10.11 Counterparts.
This Amended 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
s
same` instrument. Any signature page of this Amended "Agreement may be
detached from any counterpart of this Amended Agreement without impairing
the legal effect of any signatures thereon, and may be attached to another
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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counterpart of this Amended Agreement identical in form hereto but having
attached to it one or more signature pages.
10.12 Assiig, ent.
Except as provided by Section 7, no Participant may assign or otherwise transfer
all or any portion of its Participation Percentage or any other rights and
obligations under this Amended Agreement without the express written consent
of NCPA.
10.13 List of Exhibits. As of the Effective Date of this Amended
Agreement, all prior Agreements, including all Exhibits referenced in the
December 14, 2006 NGPP Third Phase Agreement, are superseded. The new
Exhibits are attached hereto and incorporated herein, and are denoted as follows:
Exhibit A -
Participation Percentages and Resource Acquisition
Percentages
Exhibit B -
Form of Resource Schedule
Exhibit C -
Approved Resource Schedules
Exhibit D -
Intentionally Omitted
Exhibit E -
Intentionally Omitted
Exhibit F -
Form of Request for Proposals
Exhibit G -
Form of Power Purchase Agreement
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IN WITNESS WHEREOF; each Participant has executed this Amended
Agreement with the approval of its governing body, and NCPA has authorized
this Amended Agreement in accordance with the authorization of its
Commission.
NORTHERN CALIFORNIA POWER AGENCY BAY AREA RAPID TRANSIT DISTRICT
180 Cirby Way
PO Box 12688
Roseville, CA 95678
Oakland, CA 94604-2688
916-781-3636
510-464-6435
916-783-7693 fax
510-464-6118 fax
Approved as to form:
By:
Its: Attorney
By:
Its:
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
707-431-3317
707-431-3321 fax
Approved as to form:
By:
Its: Attorney
CITY OF PALO ALTO
PO Box 10250
Palo Alto, CA 94303-0862
650-329-2273
650-321-0651 fax
Approved as to form:
By:
Its: Attorney
CITY OF LOMPOC
PO Box 8001
Lompoc, CA 93438-8001
805-736-1261
805-736-5347 fax
Approved as to form:
By:
Its: Attorney
PLUMAS SIERRA REC
73233 State Hwy 70
Portola, CA 96122-7069
530-832-4261
530-832-6070 fax
Approved as to form:
By:
Its: Attorney
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CITY OF SANTA CLARA
1500 Warburton Avenue
Santa Clara, CA 95050
408-615-2250
408-241-6771 fax
By:
Its:
Approved as to form:
By:,.,,— - Its: A,t,-rrfi,-,y
CITY OF LODI
221 West Pine St.
Lodi, CA 95240
209-333-6702
209-333-6807 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
CITY OF UKIAH
300 Seminary Avenue
Ukiah, CA 95482
707-463-6200
707-463-6204 fax
Its:
Approved as to form:
By:
Its: Attorney
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#103338v1
AMENDED THIRD PHASE AGREEMENT NCPA GREEN POWER POOL
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Exhibit A
Project Participation Percentages
And
Resource Allocation Percentages
* aMW = Capacity in Average MW
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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Participant Election
Participation
Participant
(aMW)*
Percentage
Alameda
-
-
BART
7.0
10.9375%
Biggs
-
-
Gridle
-
-
Healdsburg
2.0
3.1250%
Lassen
-
-
Lodi
5.0
7.8125%
Lompoc
5.0
7.8125%
Palo Alto
15.0
23.4375%
Plumas
2.0
3.1250%
Port of Oakland
-
-
Redding
-
-
Roseville
-
-
SVP
25.0
39.0625%
TID
-
-
Truckee Donner
-
-
Ukiah
3.0
4.6875%
Total Annual aMW
64.0
100.0000%
* aMW = Capacity in Average MW
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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Resource Allocation Percentage Table
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Exhibit B
Form of Resource Schedule
Name:
Location:
Fuel / Technology:
Size :
Type of Procurement:
Estimated Costs:
Key Milestone Dates (such as commercial operation date and
delivery period):
Definitive Agreement(s) :
Proposed Budget:
Proposed Mechanism for Financing the Procurement:
Other Notes and Underlying assumptions :
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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Exhibit C
Approved Resource Schedules
The Resource Schedule submitted in connection with opting out of or approving
a Proposed Resource under Section 3 will be added to this Exhibit following
approval of such Proposed Resource in accordance with Sections 3.2 and 3.4
respectively.
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Exhibit D
Intentionally Omitted
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Exhibit E
Intentionally Omitted
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Exhibit F
Pro Forma Request for Proposals
o"-tqCPA
NORTHERN CALIFORNIA POWER AGENCY
REQUEST for PROPOSALS
For
RENEWABLE ELECTRIC POWER SUPPLY PROPOSALS
RFP Issue Date:
Response Deadline:
(PPT)
Section 1.PURPOSE AND SCOPE
5:00pm Pacific Prevailing Time
The Northern California Power Agency (NCPA) is accepting proposals for Eligible
Renewable Resources and Landfill Gas supplies to meet the expected long-term electric
power needs of its Members.
This RFP is limited to those parties who currently have rights in, own, or propose to
develop, an Eligible Renewable Resource electric generating facility(ies) or, own and
operate landfill facilities.
NCPA may procure power supply resources or landfill gas supplies from those
Respondents whose proposals, in NCPA's sole judgment, represent the greatest value to
the NCPA Members when compared with other options available to NCPA. The
issuance of this Request For Proposals (RFP) does not constitute a colmnitment by
NCPA or its Members to purchase such resources from any source. NCPA reserves the
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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right to revise, suspend or tenninate this RFP and any schedule related thereto at its sole
discretion without liability to any Respondent.
Section 2. DESCRIPTION OF NCPA
NCPA is a nonprofit California joint powers agency established in 1968. Its Members
are: the cities of Alameda, Bay Area Rapid Transit District, Biggs, Gridley, Healdsburg,
Lodi, Lompoc, Palo Alto, Redding, Roseville, Santa Clara, Ukiah, the Port of Oakland,
the Truckee Dornier Public Utility District, and the Turlock Irrigation District; and two
Associate Members: Placer County Water Agency, and the Plumas-Sierra Rural Electric
Cooperative. These Members serve nearly 700,000 electric consumers in Central and
Northern California. Attachment 5 displays the locations of each NCPA Member and
jointly owned resources.
As a CAISO Schedule Coordinator, NCPA snakes arrangements for physical power
deliveries to its Members through the CAISO Grid. In addition, NCPA's members hold
additional transmission -related rights through other pre-existing contracts.
In Fiscal Year 2004-05, NCPA Members met peak demands of 1960 megawatts (MW)
and supplied 9400 gigawatt -hours (GWh) of energy. To meet these loads, NCPA
Members own and operate geothennal generation located in the Geysers region of
California, multiple hydroelectric facilities, gas fired combustion turbines (CTs) located
in five Members' service areas, miscellaneous small projects, numerous existing power
supply contracts (including renewable sources such as wind and landfill gas purchased
via NCPA's 2003 Renewable Electric Power Supply RFP) and Western Area Power
Administration (Wester) contracts for capacity and associated energy.
Those Members participating in this RFP have the exclusive authority to set retail rates
sufficient to cover power purchase obligations, with the exception of BART, which has
tariffs, fees or other sources of revenue except as such may be limited by law. Power
purchase contracts between NCPA and third parties are not subject to prudence review by
state regulatory agencies and may be enforced according to their terms, in accordance
with California law. The California Public Utilities Commission lacks jurisdiction over
the power purchase contracts of such NCPA Members. Contracts to be executed as a
result of this RFP are intended as binding legal agreements enforceable in the California
courts.
With the exception of BART, each NCPA Member, participating in this RFP, operates its
own electric system as an enterprise and special fund and such members are obligated to
establish and collect fees and charges for electricity furnished through its electric system
sufficient to pay any and all amounts payable from electric system revenues, which
include amounts of capacity or energy, or both, furnished pursuant to an agreement
entered into as a result of this RFP. BART shall generate revenues sufficient to cover its
obligations under an agreement through tariffs, fees or other sources of revenue except
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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through such sources which may be limited by law. Fees and charges for electricity
furnished through each NCPA Member's electric system are not considered taxes and are
thus not subject to California tax and voter approved provisions such as Propositions 13,
62, and 218.
Section 3. DESCRIPTION OF REQUEST
A) Electric Power Supply
NCPA will accept long -tern contract or equity position proposals for renewable electric
power supply resources which include, but may not be limited to: biomass, biodiesel,
fuel cells using renewable fuels, digester gas, geothermal, landfill gas, municipal solid
waste, ocean wave, ocean thermal, tidal current, waste tire, waste gasification (various
fuels), solar (thermal), solar (photovoltaic), wild, or small hydro(30MW or less) which
are (a) located within California, (b) are located outside of California and have their first
point of interconnection with the Western Electricity Coordinating Council transmission
system located within California or (c) are located outside of California but deliver
electricity to a substation or node within California.
Respondents may submit proposals that specify an energy source other than one of those
listed above. Any Respondent, who chooses to propose an energy source not on the
above list, must provide adequate documentation in its proposal which identifies the fuel
source as Eligible Renewable. After verification of the proposal as an Eligible Renewable
Resource project, NCPA, in its sole discretion, will make a determination as to the
suitability of the proposal for this RFP process.
NCPA will not accept proposals for renewable resources that are separated from their
Renewable Energy Credits/Attributes (REC) and offered only as an energy transaction.
Additionally, this RFP is limited to generating facilities that have an installed capacity as
follows:
a) PV Solar facilities directly connected to the distribution system of a
participating NCPA Member: l OkW or larger,
b) Other facilities directly connected to the distribution system of a
participating NCPA Member: 100kW or larger,
C) All other facilities: 1MW or larger.
Depending on the value and type of proposals received, NCPA could accept, from one or
more proposals, up to a total of 79aMW. [Average MW(aMW) - For example, 100MW
of installed wind capacity at 32% annual capacity factor would be equivalent to 32aMW.]
B) Power Purchase Agreement (PPA) for Electric Power Supply
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NCPA has prepared a pro -forma PPA (Attachment 4) for the purchase of renewable
energy and associated environmental attributes. The PPA and associated Addenda
contemplate the transfer of both renewable energy and RECs. Any proposal made for the
sale of both renewable energy and associated RECs must be made by the Respondent
with the assumption that the pro -forma will be the basis for any definitive agreements
between the Respondent and NCPA.
Capitalized terms used in this RFP and not otherwise defined have the meanings given to
them in the PPA. Respondents should review the pro -forma PPA to have a full
understanding of this RFP.
Any executed agreement for the purchase of Eligible Renewable Resource energy will be
presented to the NCPA Commission and will be subject to the approval of the
Commission and any other applicable authorities that have jurisdiction over any or all of
the subject matter.
NCPA reserves the right to update, modify, or revise any or all of the terms and
conditions contained in the pro -forma PPA and associated addenda.
C) Landfill Gas
NCPA will also accept long-term contract proposals for the use of landfill gas supplies to
be transferred to NCPA at the point of delivery for use as fuel for the generation of
electric power. Such generation will be produced by an NCPA owned, built, and
operated electric generation plant.
Section 4. SECURITY
NCPA will not post security, collateral, or other assurances for credit purposes for any
reason whatsoever prior to or during the term of any agreement arising from this RFP.
Proposals that include or are contingent on NCPA providing security, collateral, or other
assurances will be deemed non-responsive and will not be considered.
Section 5. PROPOSAL SUBMITTAL
All responses, questions and communications shall be submitted to the following email
address, , using the appropriate Stage 1 Proposal
Questionnaire
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You may also direct questions to:
Dana W. Griffith
Power Coordination and Planning Engineer
Tel: 916-781-3636
Fax: 916-783-7693
The following table summarizes the attachments to be provided to NCPA by Proposers:
Forms to be
filled out by:
Electric
Landfill
Generation
I Owners
Attachment Description
X
f
1 a
Electric Generation Proposal
X
I
1 b
i Electric Generation Proposal Data Summary
X
2a
Landfill Gas Proposal
X
2b
; Landfill Gas Proposal Data Summary
X
3a
Electric Generation Proposer - Waiver and Acknowledgement
J
X
3b
Landfill Gas Proposer - Waiver and Acknowledgement
I
4
PPA for Electric Generation
5
NCPA Member and Project Ma
NCPA, in its sole discretion, may reject any late or non-responsive proposal.
NCPA must receive all proposals with the appropriate attachments by electronic e-mail
no later than 5:00 p.m. (PPT) on
A hard copy of the proposal is not required; however, Respondents may also send a hard
copy of the proposal and/or other supporting documents to NCPA no later than 5:00 p.m.
(PPT)
Each proposal package submitted in response to this RFP shall contain only one proposal.
Respondents may submit more than one proposal in separate proposal packages.
Proposals, including proposed prices, will remain binding on the Respondent through the
date of completion of negotiations and the NCPA Commission approval process (120
days). A duly authorized officer of the Respondent must sign the proposal.
None of the material received by NCPA from the Respondent in response to this RFP
will be returned to Respondent. All materials and proposals submitted by the Respondent
will become the property of NCPA and may be used by NCPA for the purpose of
evaluating proposals, executing any agreements, regulatory hearings, and administering
any resulting definitive agreements.
All responses that may arise from this RFP are considered coininitments for use in
developing the agreement between NCPA and the Respondent.
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Any and all proposals in respect of a landfill gas-fired electricity generating facility or
landfill gas supply shall include, as the first page of the proposal, an executed Attachment
3a or Attachment 3b, whichever is applicable.
Section 6. EVALUATION PROCESS
The RFP evaluation process will be completed in two stages. The first stage includes the
submission of the Stage 1 Proposal Questionnaire (Attachments 1, 2 and 3), an initial
screening by NCPA, and a preliminary evaluation by NCPA.
NCPA will perform an initial screening to identify and eliminate any proposal that is non-
responsive to the RFP, does not meet the minimum requirements set forth in the RFP, is
clearly not economically competitive with other proposals, or is submitted by a
Respondent that lacks appropriate creditworthiness, sufficient financial resources, or
qualifications to provide dependable and reliable service.
NCPA will then perform a preliminary evaluation of the remaining proposals and rank
their value relative to other proposals as well as all other available options.
NCPA expects the initial screening and proposal evaluation process will take
approximately six weeks after the date of closing for submission of complete proposals;
however, the timeline will depend on the number and complexity of proposals received.
After the initial screening and evaluation process, NCPA will notify each Respondent of
its status. Respondents will be notified whether their proposal is on the "Short List",
"Secondary List", or listed as "Not Considered at this Time".
The Stage 2 process may include presentations to NCPA and the participating NCPA
Members, verification of certain key Proposal data, and reviews of other issues as
needed. Any Respondent who is notified that its proposal meets the Stage 1 criteria and
is advanced to the "Short List" will be advised of the due date for any additional Stage 2
questions.
NCPA may request that Respondents complete supplemental questionnaires and/or meet
for oral interviews at any stage of the RFP process. Respondents failing to provide
information, deemed necessary by NCPA to adequately review a proposal, may be
eliminated from further consideration at any stage or time during the RFP process.
Section 7. EVALUATION CRITERIA
NCPA will, in its sole discretion, evaluate responsive proposals to detennine which
proposals are likely to provide the greatest overall value to its Member utilities. All
proposals will be evaluated based on factors that include, but are not limited to: proposal
term, technology, energy source, location, delivery point, status, timeline, joint action
partners, environmental benefits as well as Respondent's experience, public credit rating,
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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financial stability, extent of off-balance sheet financing, product price and terms,
delivery, service levels, and other relevant criteria.
In addition, depending on the project being proposed, proximity to load may have value
to certain NCPA Members. Those Members may be interested in being a host or
assisting in direct connection to their distribution grid.
Evaluations will be based on information provided during the two-stage RFP process,
possible oral interviews with the Respondent, snail or email requests, information already
known by NCPA, and other publicly available information.
All determinations made by NCPA with respect to any Respondent or its proposal,
including the determinations described in this RFP, shall be made by NCPA in its sole
discretion and without liability. No debriefings will be provided as these determinations
will be final and are not subject to review.
Section S. GENERAL PROVISIONS
If the Respondent so specifies and clearly identifies portions of its proposal as
"PROPRIETARY AND CONFIDENTIAL", NCPA will make reasonable efforts to treat
the marked portions as confidential information. Such information may, however, be
made available under applicable State or Federal law. NCPA also reserves the right to
release such information to its agents, contractors, or Member utilities for the purpose of
evaluating a Respondent's proposal. Such agents, contractors and Member utilities will
be required to observe the same care with respect to disclosure as NCPA. Under no
circumstances will NCPA, its Commission, managers, agents, contractors or Member
utilities, be liable for any damages resulting fiom any disclosure of Respondent's claimed
confidential information during or after this RFP process.
Although NCPA is interested in meeting its needs by acquiring resources that provide the
greatest value to its Members, evaluation of a proposal does not constitute a commitment
by NCPA to purchase energy and/or capacity from any source. NCPA Members and
NCPA are not obligated in any way to proceed with this RFP or consider or enter into
any agreement or undertake any liability to any Respondent in connection with this RFP
and any and all proposals, whether qualified or not, may be rejected without any liability
whatsoever to any Respondent on the part of NCPA or any NCPA Member. ;
NCPA shall not be responsible for any costs incurred by Respondent to prepare, submit,
negotiate, contract, or participate in this RFP process.
Those Respondents who submit proposals agree to do so without legal recourse against
NCPA, its Commission, managers, agents, contractors or Member utilities for rejection of
their proposal(s) or for failure to execute an agreement for any reason. NCPA shall not be
liable to any Respondent or party at law or in equity for any reason whatsoever for any
acts or omissions arising out of or in connection with this RFP. By submitting its
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
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proposal, each Respondent waives any right to challenge any valuation by NCPA of any
proposal of any Respondent or any determination of NCPA to select or reject any
proposal of any Respondent or take any action contemplated by this RFP, including any
right of a Respondent to intervene in any governing body proceeding for the purpose of
protesting the selection or rejection of any proposal, any other decision of NCPA
contemplated by this RFP or any resulting agreement related to a selected proposal. Each
Respondent, in submitting its proposal, irrevocably agrees and acknowledges that it is
making its proposal subject to and in agreement with the terms of this RFP and agrees
that NCPA shall be entitled to specific perfonnance of its rights hereunder and injunctive
relief.
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Exhibit G
Pro Forma Power Purchase Agreement (PPA)
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RENEWABLE ENERGY POWER PURCHASE AGREEMENT
between
NORTHERN CALIFORNIA POWER AGENCY
and
NCPA — (Draft) 2008 Power Purchase Agreement
RENEWABLE ENERGY POWER PURCHASE AGREEMENT
This Renewable Energy Power Purchase Agreement, together with the exhibits,
attachments, and any referenced collateral agreement or similar arrangement between the Parties
(collectively, the "Agreement") is made and effective as of the following date: [.Insert Date]
("Effective Date") by and between the Northern California Power Agency, a joint powers agency
established pursuant to the laws of the State of California ("Buyer" or "NCPA"), and [Insert
.Seller's Name], a [Insert. Seller's business registration and location thereof] ("Seller").
WHEREAS, Seller intends to construct, own, and operate a [Insert resource capacity]
MW [Insert resource t3pe]-powered generating facility, which qualifies as of the Effective Date
as an eligible renewable energy resource (`ERR") Linder the State of California Renewable
Portfolio Standard Program ("RPS"), as codified at California Public Utilities Code Section
399.11, et seq.' and desires to sell electricity produced by such generating facility together with
all Environmental Attributes and Capacity Attributes, each as defined below, to Buyer pursuant
to the terns and conditions set forth herein; and
WHEREAS, Buyer desires to purchase electricity generated by Seller's generating
facility, together with all Environmental Attributes and Capacity Attributes pursuant to the terns
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises hereof, and the covenants and
conditions contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Seller, intending to be legally bound,
hereby agree as follows.
NCPA — 20081 Power Purchase Agreement
AGREEMENT
ARTICLE 1: DEFINITIONS
Unless otherwise required by the context in which any term appears, (i) initially -
capitalized terms used in this Agreement shall have the meanings specified in this Article; (ii)
terms defined in the singular shall include the plural and vice versa; (iii) references to "Articles,"
"Sections," and "Exhibits" shall be to articles, sections, or exhibits hereof; (iv) all references to a
particular entity shall include a reference to such entity's successors and permitted assigns; (v)
the words `'herein," "hereof," and "hereunder" shall refer to this Agreement as a whole and not to
any particular section or subsection hereof; (vi) all accounting terms not specifically defined
herein shall be construed in accordance with GAAP, consistently applied; (vii) references to this
Agreement shall include a reference to all appendices and Exhibits hereto, as the same may be
amended, modified, supplemented, or replaced from time to time; (viii) terns used in the
masculine shall include the feminine and neuter and vice versa; and (ix) the tern "including,"
when used in this Agreement, shall mean to include without limitation.
1.1 "Adjustment Period" means (i) the actual period when inaccurate measurements were
made by a defective Meter, if that period can be determined to the mutual satisfaction of
the Parties, or (ii) if the actual period cannot be determined to the mutual satisfaction of
the Parties, one-half the period from the date of the last previous test of the Meter to the
date such failure is discovered.
1.2 "Agreement" has the meaning set forth in the preamble of this Agreement.
1.3 "Available Hours" means the number of hours during the Peak Months or Non -Peak
Months, as applicable, of each Contract Year in which the Generating Facility is capable
of delivering Energy to the Delivery Point; provided that, to the extent that the
Generating Facility is not capable of delivering all of the Contract Capacity in any hour,
the Available Hours with respect to such hour shall be reduced pro rata to reflect the
fraction of the Contract Capacity that the Generating Facility is capable of delivering in
such hour.
1.4 "Availability" means the ability of the Generating Facility to produce and of Seller to
deliver Output at a level at least equal to the Contract Capacity, assuming adequate
[Insert resource ce type] resource. Availability shall be detennined as a percentage for the
Peak Months and Non -Peak Months of each Contract Year in accordance with the
following formula:
Availability = 100 x Available HoursBase Hours
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NCPA — 2008 Power Purchase Agreement
1.5 "Availability Shortfall Damages" means an amount equal to the following formula:
Availability Shortfall Damages = (A) x (B) x (C) x (D)
where:
(A) equals the positive difference between the required Availability in any period
and the actual Availability in such period, expressed as a decimal;
(B) equals the prevailing Contract Price;
(C) equals the quotient of the number of months in the relevant period divided by
twelve (12); and
(D) equals the Expected Annual Contract Quantity.
1.6 "Base Hours" means the number of hours during the Peak Months or Non -Peak Months,
as applicable, of each Contract Year; provided that, to the extent that the Generating
Facility is partially or wholly incapable or otherwise unable to deliver Energy in ally hour
as a result of a Force Majeure Event that hour (or if the Generating Facility's capacity is
only partially constrained, the pro rata portion of that hour) shall be excluded from the
Base Hours.
1.7 "Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank
holiday. A Business Day shall begin at 8:00 a.m. and end at 5:00 p.m. local time for the
relevant Party's principal place of business. The relevant Party, in each instance unless
otherwise specified, shall be the Party from whom the notice, payment or delivery is
being sent, or by whom the notice, payment or delivery is received, as the context
requires.
1.8 `Buyer" has the meaning set forth in the preamble of this Agreement.
1.9 "Buyout Payment" means the amount set forth in Exhibit 1 [Buyout Payment Forml.
1.10 "Capacity Attributes" means any and all current or future defined characteristics,
certificates, tags, credits, ancillary service attributes, or accounting constructs, howsoever
entitled, including Resource Adequacy Benefits, and any tracking or accounting
associated with the foregoing, attributed to or associated with the electricity generating
capacity of the Generating Facility, or any unit of electricity generating capacity of the
Generating Facility, during the Term.
1.11 "Commercial Operation" means that: (i) the Generating Facility has been constructed in
accordance with Good Utility Practice, all Permits, Requirements of Law, and the
specifications set forth in Exhibit 2 [Description of Generating Facility]; (ii) all of the
requirements set forth in Article 7 have been satisfied; and (iii) Seller has successfully
completed the Commercial Operation Performance Tests.
1.12 "Commercial Operation Date" means the date on which Commercial Operation first
occurs.
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NCPA — 2008 Power Purchase Agreement
1.13 "Commercial Operation Performance Tests" means the tests set forth in Exhibit 3
[Commercial Operation Performance Tests].
1.14 "Confidential Information" means information in respect of the business of either Party
provided by one Party to the other in accordance with, or in furtherance of, this
Agreement including this Agreement, the content of documents, ideas, business methods,
finances, prices, business plans, financial development plans, manpower plans, customer
lists or details, computer systems, software, know-how, trade secrets or other matters
connected with such Party's obligations hereunder; provided, however, that "Confidential
Information" shall not include information that (i) at the time of disclosure or thereafter is
generally available to, or known by, the public other than as a result of a disclosure by the
receiving Party or its representatives; (ii) was available to the receiving Party on a non -
confidential basis from a source other than the disclosing Party; or (iii) was otherwise
independently acquired or developed by the receiving Party without violating its
obligations hereunder.
1.15 "Contract Capacity" means the installed electricity generating capacity of the Generating
Facility, net of all on-site and other uses permitted under this Agreement and of all line or
transformation losses to the Delivery Point, which shall be [Insert Capacity] MW.
1.16 "Contract Price" means the price in $U.S. (unless otherwise provided for) to be paid by
Buyer to Seller for the purchase of the Output, as specified in Exhibit 4 f Contract Pricel.
1.17 "Contractual Obligations" means, as to Seller, any material agreement, instrument or
undertaking to which Seller is a party or by which it or any of its property is bound.
1.18 "Contract Year" means each year beginning on January 1 st and ending on December 31 st
of such year following the Commercial Operation Date; provided, however, that the first
Contract Year shall continence on the Commercial Operation Date and end on the
following December 31st, and the last Contract Year shall end on the relevant
anniversary of the Commercial Operation Date as set forth in Section 2.1.
1.19 "Control Area" means the electric power system (or combination of electric power
systems) under the operational control of the ISO or any other electric power system
under the operational control of another organization vested with authority comparable to
that of the ISO.
1.20 "Credit Support Amount" means the amount determined in accordance with Exhibit 5
[Credit Support Amount]. `
1.21 "Damages" has the meaning set forth in Section 9.4.
1.22 "Delay Liquidated Damages" means an amount equal to $ Vrasert Price] per day.
1.23 "Delivery Point" means the point at which the Output will be delivered by Seller and
received by Buyer hereunder, as specified in Exhibit 2 [Description of Generating
Facility].
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NCPA — 2008 Power Purchase Agreement
1.24 "EA Agency" means any local, state or federal entity, or any other Person, that has
responsibility for or jurisdiction over a program involving transferability of
Environmental Attributes, including the Clean Air Markets Division of the United States
Environmental Protection Agency, the California Resources, Conservation and
Development Commission, the California Public Utilities Cormnission, and any
successor agency thereto.
1.25 "Effective Date" has the meaning set forth in the preamble of this Agreement.
1.26 "Emergency" means any condition or situation 1 hich poses an imminent threat to: (i)
life or property, or (ii) Buyer's, or any of its member's, ability to maintain safe, adequate,
and continuous electric power and energy service to its customers.
1.27 "Energy" means the electricity generated by the Generating Facility pursuant to this
Agreement, as expressed in units of kWh or MWh.
1.28 "Environmental Attributes" means any and all credits, benefits, emissions reductions,
offsets, and allowances, howsoever entitled, attributable to the generation from the
Generating Facility or Expansion Plant(s), as the case may be, and its displacement of
conventional energy generation. Environmental Attributes include: (i) any avoided
emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen
oxides (NOx), carbon monoxide (CO) and other pollutants; (ii) any avoided emissions of
carbon dioxide (CO2), methane (CH4) and other greenhouse gases that have been
determined by the United Nations Intergovernmental Panel on Climate Change to
contribute to the actual or potential threat of altering the Earth's climate by trapping heat
in the atmosphere; and (iii) the reporting rights to these avoided emissions such as Green
Tag Reporting Rights.
"Green Tag Reporting Rights" are the right of a Green Tag purchaser to report the
ownership of accumulated Green Tags in compliance with federal or state law, if
applicable, and to a federal or state agency or any other party at the Green Tag
purchaser's discretion, and include those Green Tag Reporting Rights accruing under
Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal,
state, or local law, regulation or bill, and international or foreign emissions trading
program. "Green Tags" are accumulated on MWh basis and one Green Tag represents
the Environmental Attributes associated with one (1) MWh of energy.
Environmental Attributes do not include: (i) any energy, capacity, reliability or other
power attributes from the Generating Facility or Expansion Plant(s), (ii) Production Tax
Credits associated with the construction or operation of the Generating Facility, or
Expansion Plant(s), and other financial incentives in the form of credits, reductions, or
allowances associated with the Generating Facility or Expansion Plant(s) that are
applicable to a state or federal income taxation obligation, rrr fuel -related subsidies or
"tipping fees" that may be paid to Seller to accept certain fuels, or local subsidies
received by Seller or the owners of the Site for the destruction of particular pre-existing
pollutants or the promotion of local enviromnental benefits, or (iv) emission reduction
NCPA — 2008 Power Purchase Agreement
credits encumbered or used by the Generating Facility or Expansion Plant(s) for
compliance with local, state, or federal operating and/or air quality permits.
1.29 "Environmental Attributes Reporting Rights" means all rights to report ownership of the
Environrnental Attributes to any Person, including under Section 1605(b) of the Energy
Policy Act of 1992.
1.30 "ERR" has the meaning set forth in the recitals of this Agreement.
1.31 "Event of Default" has the meaning set forth in Article 9.
1.32 "Expansion Plant" means any expansion of the Generating Facility from its Contract
Capacity. Each such expansion of the Generating Facility shall be deemed to be an
Expansion Plant.
1.33 "Expansion Plant Output" means all capacity and associated Energy, Test Energy, and
associated Environmental Attributes and Capacity Attributes produced by Seller at any
Expansion Plant.
1.34 "Expected Annual Contract Quantity" means the amount of Energy and Environmental
Attributes that Seller expects to deliver to Buyer hereunder in a given Contract Year other
than the first and last Contract Years (which may be partial years), as set forth in Exhibit
6 [Expected Annual Contract Quantity Form].
1.35 "Expected Commercial Operation Date" means the date on which the Commercial
Operation Date is expected to occur, as specified in Exhibit 7 jMilestones].
1.36 "FERC" means the Federal Energy Regulatory Commission and its successor
organization, if any.
1.37 "Force Majeure Event" has the meaning set forth in Section 8.1.
1.38 "GAAP" means Generally Accepted Accounting Principles in the United States of
America that are consistently applied.
1.39 "Generating Facility" means Seller's electricity generating facility as more particularly
described in Exhibit 2 [Description of Generating Facility], together with all materials,
equipment systems, structures, features and improvements necessary to produce
electricity at such facility, excliding the Site, land rights and interests in land.
1.40 "Governmental Authority" means any federal or state government, or political
subdivision thereof, including, any municipality, township or county, or any entity or
authority exercising executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, including, any corporation or other entity owned or
controlled by any of the foregoing.
1.41 "Guarantor" means a Person that guarantees the obligations of Seller by executing a
Guaranty.
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NCPA — 2008 Power Purchase Agreement
1.42 "Guaranty" means a guaranty in the form attached hereto as Exhibit 8 [Guaranty
Agreement].
1.43 "Interconnection" means the interconnection of the Generating Facility with the
Transmission System, including construction, installation, operation and maintenance of
all Interconnection Facilities.
1.44 "Interconnection Agreement" means the agreement between Seller and the Transmission
Provider pursuant to which Seller and the Transmission Provider set forth the terns and
conditions for Interconnection of the Generating Facility to the Transmission System, as
amended from time to time.
1.45 "Interconnection Facilities" means all of the facilities installed for the purpose of
interconnecting the Generating Facility to the Transmission System, including
transformers and associated equipment, relay and switching equipment and safety
equipment.
1.46 "Interest Rate" means, for any date, the lesser of: (i) the per annum rate of interest equal
to the prime lending rate as may from time to time be published in the Wall Street
Journal under "Money Rates" on such day (or if not published on such day on the most
recent preceding day on which published); and (ii) the maximum rate permitted by
applicable law.
1.47 "Intermittent Resources" means Generating Facilities that use wind or solar energy, or
tidal or wave action, to generate electricity, or any other resource agreed upon by Seller
and Buyer.
1.48 "Investment Tax Credits" or "ITC" means investment tax credits under Section 48 of the
Internal Revenue Code, as amended from time -to -time during the Term.
1.49 "ISO" means the California Independent System Operator Corporation, or its functional
successor.
1.50 "ISO Tariff' means the duly authorized tariff, rules, protocols and other requirements of
the ISO, as amended from time to time.
1.51 "kWh" means a kilowatt-hour of electric energy.
1.52 "Lender(s)" means any Person(s) providing money or extending credit (including any
capital lease) to Seller for: (i) the construction of the Generating Facility; or (ii) the tern
or permanent financing of the Generating Facility.
1.53 "Letter(s) of Credit" means one or more irrevocable, transferable standby letters of credit
issued by a U.S. commercial bank, or the U.S. branch of a foreign bank, with such bank
having a credit rating of at least A- from S&P or A3 from Moody's, in the fonn attached
hereto as Exhibit 9 rLetter of Credit].
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NCPA — 2008 Power Purchase Agreement
1.54 "Meters" means the physical metering devices, data processing equipment and apparatus
associated with the meters owned by Seller or Transmission Provider or its designee, and
used to determine the quantities of Energy generated by the Generating Facility and to
record other related parameters required for the reporting of data to Seller in accordance
with the requirements of Article 4.
1.55 "Meter Service Agreement for ISO Metered Entities" has the meaning set forth in the
ISO Tariff.
1.56 "Milestones" means the events that are set forth in Exhibit 7 IMilestonesl.
1.57 "Moody's" means Moody's Investor Services, Inc. or its successor.
1.58 "MW" means a megaWatt of electric energy.
1.59 "MWh" means a megaWatt-hour of electric energy.
1.60 "Non -Peak Months" means, collectively, the months of October, November, December,
January, February, March, April and May during each Contract Year.
1.61 "Outage" means a physical state in which all or a portion of the Generating Facility is
unavailable to provide Energy to the Delivery Point, including any duration or reduction
in the capacity of the Generating Facility, whether planned or unplanned.
1.62 "Output" means (i) the Contract Capacity and associated Energy, (ii) Test Energy, and
(iii) all Environmental Attributes and Capacity Attributes.
1.63 "Participating Generator Agreement" has the meaning set forth in the ISO tariff.
1.64 "Parties" means Buyer and Seller, and their respective successors and permitted
assignees.
1.65 "Party" means Buyer or Seller, and each such Party's respective successors and permitted
assignees.
1.66 "Peak Months" means, collectively, the months of June, July, August and September
during each Contract Year.
1.67 "Permits" means, collectively, all federal, state or local authorizations, certificates,
permits, licenses and approvals required by any Govei7unental Authority for the
construction, ownership, operation and maintenance of the Generating Facility.
1.68 "Person" means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity.
1.69 "Production Tax Credits" or "PTC" means production tax credits under Section 45 of the
Internal Revenue Code, as amended from time -to -time during the Term.
NCPA — 2008 Power Purchase Agreement
1.70 "Prudent Utility Practice" means those practices, methods and equipment, as changed
from time to time, that: (i) when engaged in, or employed, are commonly used in the
State of California in prudent electrical engineering and operations to operate electricity
equipment lawfully and with safety, reliability, efficiency and expedition; or (ii) in the
exercise of reasonable judgment considering the facts known, when engaged in could
have been expected to achieve the desired result consistent with applicable law, safety,
reliability, efficiency and expedition.
Prudent Utility Practices are not limited to an optimum practice, method, selection of
equipment or act, but rather are a range of acceptable practices, methods, selections of
equipment or acts.
1.71 "Replacement Price" means either (a) the price at Which Buyer, acting in a commercially
reasonable manner, purchased or purchases a replacement for any Output required to be,
but not, delivered by Seller hereunder, plus (i) costs reasonably incurred by Buyer in
purchasing such substitute Output, and (ii) additional transmission charges, if any,
reasonably incurred by Buyer to the Delivery Point; or at Buyer's option, (b) the market
price at the Delivery Point for such Output not delivered as determined by Buyer in a
commercially reasonable manner; provided, however, Buyer shall not be required to
purchase any replacement for Output not delivered to determine the Replacement Price
under (b) above, or to utilize or change its utilization of its owned or controlled assets or
market positions to minimize Seller's liability. For the purposes of this definition, Buyer
may purchase or value Energy, Environmental Attributes and Capacity Attributes,
together or separately, and if separately, the Replacement Price shall be the sure of the
relevant costs and values.
1.72 "Resource Adequacy Benefits" means the rights and privileges attached to any generating
resource that satisfy any entity's resource adequacy obligations.
1.73 "Required Credit Rating" means a rating on a Party's unsecured, senior long-term debt
obligations, unenhanced by any insurance or other mechanism, of not less than "BBB-"
by S&P or "Baa3" by Moody's.
1.74 "Requirements of Law" means, collectively, any federal or state law, treaty, franchise,
rule, regulation, order, writ, judgment, injunction, decree, award or determination of any
arbitrator or a court or other Govermnental Authority, in each case applicable to or
binding upon Seller or Buyer or any of their property or to which Seller or Buyer or any
of their respective properties are subject.
1.75 "RPS" or "Renewable Portfolio Standard Program" has the meaning set forth in the
recitals of this Agreement.
1.76 "Schedule" or "Scheduling" means the actions of Seller, Buyer and/or their designated
representatives, including each Party's Transmission Providers, if applicable, of
notifying, requesting and confirming to each other the quantity of Energy to be delivered
on any given day or days hereunder during the Tenn at the Delivery Point.
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NCPA — 2008 Power Purchase Agreement
1.77 "Scheduling Coordinator" means an entity certified by the ISO for the purposes of
undertaking the responsibilities specified by ISO Tariff Section 2.2.6, as amended from
time -to -time.
1.78 "Seller" has the meaning set forth in the preamble of this Agreement.
1.79 "Site" means the real property on which the Generating Facility is to be built and located,
as more particularly described in Exhibit 2 [Description of Generating Facility].
1.80 "Site Control" means the point at which Seller satisfies one or more of the following
conditions: (i) Seller is (a) the lessee under a lease, or (b) the grantee under an exclusive
easement, in each case with the owner of the Site that allows Seller to construct and
operate the Generating Facility at the Site during the Tenn in accordance with this
Agreement; (ii) Seller has a fee ownership of the Site; or (iii) any other form of site
control acceptable to Buyer in its reasonable discretion.
1.81 "S&P" means the Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.) or
its successor.
1.82 "Taxes" means any federal, state, local or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property (including assessments, fees
or other charges based on the use or ownership of real property), personal property,
transactional, sales, use, transfer, registration, value added, alternative or add on
minimum, estimated tax, or other tax of any kind whatsoever, or any liability for
unclaimed property or escheatment under common law principles, including any interest,
penalty or addition thereto, whether disputed or not, including any item for which
liability arises as a transferee or successor -in -interest.
1.83 "Term" has the meaning set forth in Section 2.1.
1.84 "Test Energy" means Energy generated by the Generating Facility prior to the
Commercial Operation Date.
1.85 "Test Energy Price" means the price that is eighty percent (80%) of the Contract Price.
1.86 "Transmission Provider" means any entity or entities responsible for the interconnection
of the Generating Facility with a Control Area or transmitting Energy on behalf of Seller
from the Generating Facility to the Delivery Point, and on behalf of Buyer from the
Delivery Point.
1.87 "Transmission System" means the facilities used for the transmission of electricity in
interstate commerce, including any modifications or upgrades made to such facilities,
owned or operated by the Transmission Provider.
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NCPA — 2008 Power Purchase Agreement
ARTICLE 2: TERM; TERMINATION AND SURVIVAL OF OBLIGATIONS
2.1 Effective Date and Terra
This Agreement shall become effective on the Effective Date and, unless earlier
terminated pursuant to an express provision of this Agreement, shall continue until the
day before the [Insert Term] anniversary of the Commercial Operation Date ("Term").
2.2 Buyer Termination Option
(a) Generally. Buyer may, in its sole and unlimited discretion, terminate this
Agreement at any time after two (2) years from the Commercial Operation Date, upon
thirty (30) days advance written notice to Seller, without liability of any kind (other than
for previously accrued obligations) provided that within this thirty (30) day period Buyer
pays to Seller the Buyout Payment. Termination under this Section 2.2 shall not be
implied from any Event of Default or other act or omission of Buyer other than by
express written notice by Buyer invoking this Section 2.2.
(b) Buyout Payment. The Buyout Payment shall be determined pursuant to Exhibit 1
[Buyout Payment]. Buyer shall remit the Buyout Payment to Seller in equal monthly
installments over the lesser of (i) five (5) years, or (ii) the remaining Term of this
Agreement. The Buyout Payment shall not be considered as a measure of damages or for
any purpose other than in connection with this Section 2.2.
(c) Disputes. Any disputes regarding the provisions of this Section 2.2 or Exhibit 1
[Buyout Payment] shall be resolved in accordance with Section 11.2(d) of this
Agreement. Notwithstanding any such dispute, this Agreement shall terminate upon the
effective date of the notice to Seller pursuant to Section 2.2(a).
2.3 Effect of Termination - Survival of Obligations
(a) Generally. Except as set forth in section 2.3(b) or as otherwise expressly set forth
herein, upon expiration or termination of this Agreement, neither Party shall have future
or further rights or obligations under this Agreement.
(b) Survival of Obligations. The following rights, obligations or provisions shall
survive termination or expiration of this Agreement:
(i) obligations by one Party to the other for payment of any amounts, or for
perfonnance of any duties, that have accrued or arose prior to, or have
directly resulted from, the expiration or tennination of this Agreement;
(ii) indemnity obligations contained in Section 9.4, which shall survive to the
full extent of the statute of limitations period applicable to any third party
claim;
(iii) limitation of liability provisions contained in Section 11.18;
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NCPA — 2008 Power Purchase Agreement
(iv) for a period of one (1) year after the expiration or termination date, the right
to dispute an invoice pursuant to Section 5.1(b); or
(v) the Confidentiality obligations under Section 11.5.
ARTICLE 3: PURCHASE AND SALE
3.1 Purchase and Sale of Output
(a) Generally. In accordance with the terms and conditions hereof, commencing on the
Commercial Operation Date and continuing throughout the Tenn, Seller shall sell and
deliver at the Delivery Point, and Buyer shall purchase and accept from Seller at the
Delivery Point, and pay the Contract Price for, all of the Output. Seller shall only
Schedule and deliver Energy and Environmental Attributes and Capacity Attributes from
the Generating Facility.
(b) Test Energy. Prior to the Commercial Operation Date, Seller shall sell and deliver
at the Delivery Point, and Buyer shall purchase and accept from Seller at the Delivery
Point, and pay the Test Energy Price for the Test Energy. All Test Energy shall be
Scheduled in accordance with Section 3.1(c) and Exhibit 10 [Operations Forecasts and
Scheduling Protocols].
(c) Scheduled and Delivered Amounts? Seller shall use good faith efforts to ensure
that the amounts Scheduled hereunder match the amounts generated by the Generating
Facility. Notwithstanding anything herein to the contrary, the Parties acknowledge that,
because of the scheduling requirements of the ISO, Scheduled deliveries and metered
generation may be unequal during any period. Buyer shall make monthly payments
based upon the amount Scheduled through the ISO, and shall reconcile differences
between metered generation and the Energy Scheduled by Seller's Scheduling
Coordinator in the next monthly period after actual meter data is available and confirmed
by the ISO as follows:
(i) If the metered generation is more than the amount of Energy Scheduled
through the ISO then the following reconciliation shall apply:
1. If the actual imbalance energy price received by Seller (or its
Scheduling Coordinator) from the ISO is less than the Contract Price,
Buyer shall pay to Seller (in addition to amounts paid for Scheduled
Energy) the amount equal to (A) eighty percent (80%) of the
difference between (i) the Contract Price for such excess Energy
amounts, and (ii) the greater of zero dollars ($0.0) per MWh or the
actual imbalance energy price received by Seller (or its Scheduling
Coordinator) from the ISO in respect of such excess Energy,
multiplied by (B) the amount of the excess Energy generated.
1 [NOTE: This section shall not apply to projects less than 1 MW.I
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NCPA — 2008 Power Purchase Agreement
2. If the actual imbalance energy price received by Seller (or its
Scheduling Coordinator) from the ISO is greater than the Contract
Price, Seller shall pay to Buyer an amount equal to (A) the difference
between (i) the actual imbalance energy price received by Seller (or
its Scheduling Coordinator) from the ISO, and (ii) the Contract Price
for the excess Energy not Scheduled to Buyer, multiplied by (B) the
amount of such excess Energy.
3. In either case, all Environinental Attributes and any Capacity
Attributes associated with such excess Energy shall be transferred to
Buyer at no additional cost to Buyer.
(ii) If the metered generation is less than the amount of Energy Scheduled
through the ISO then the following reconciliation shall apply:
1. If the price paid by Seller (or its Scheduling Coordinator) to the ISO
is less than the Contract Price, Seller shall retain all payments for the
Scheduled amounts, but shall return to Buyer the amount equal to (A)
the difference between (i) the Contract Price for such generation, and
(ii) the actual unbalance energy price paid by Seller (or its Scheduling
Coordinator) to the ISO for such excess Scheduled generation,
multiplied by (B) the amount of such excess Scheduled generation.
2. If the price paid by Seller (or its Scheduling Coordinator) to the ISO
is greater than the Contract Price, Buyer shall pay to Seller (in
addition to amounts paid for Scheduled Energy) the amount equal to
(A) eighty percent (80%) of the difference between (i) the lower of (a)
two times the Contract Price or (b) the price paid by Seller (or its
Scheduling Coordinator) to the ISO and (ii) the Contract Price,
multiplied by (B) the amount of such excess Scheduled generation.
(iii) Notwithstanding the foregoing, if, begimling with the fourth month
following the Commercial Operation Date and for each month thereafter,
the average over the month of each hourly difference between the
Scheduled amount and the generated amount, expressed as a percentage of
the relevant hour's Scheduled amount, is greater than plus or minus ten
percent (10%), then, with respect to such month:
1. the percentages set forth in Secti'Ons 3.1(c)(i)(1)(A) and
3,1(c)(ii)(2(A) shall be reduced to fifty percent (50%), and
2. the zero dollars per ($0.0) per MWh value in Section 3.1(c)(i)(1)(A)
shall be increased to the amount equal to the Contract Price multiplied
by 0.5, and
3. the two times the Contract Price value in Section 3,1(c)(ii)2.(A)(i)(a)
shall be reduced to 1.5 times the Contract Price.
(iv) Except as set forth in this Section 3.1(c), in the event that the amount of
Output generated by the Generating Facility deviates from the Scheduled
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NCPA — 2008 Power Purchase Agreement
amounts in any time interval, Seller shall bear any costs (and hold Buyer
harmless therefrom) and retain any revenues associated with the deviation.
(d) Intermittent Resources. If, and for so long as, the Seller is participating in the
Participating Intermittent Resource Program ("PIRP") established under ISO Tariff
Amendment 42, and Seller's Schedules are established under such program, Buyer shall
pay to Seller the Scheduled amounts, and there shall be no reconciliation pursuant to
Section 3.1(c)(i),(ii), and (iii). However, if at any time during the Term, Seller is no
longer participating in PIRP, or its Schedules are not established under PIRP, Section
3.1(c) shall apply.
3.2 Delivery Point
(a) Allocation of Costs and Risks. Seller shall be responsible for any costs or charges
imposed on or associated with the Output or the delivery of the Output hereunder up to
and at the Delivery Point. Buyer shall be responsible for any costs or charges imposed on
or associated with the Output, or its receipt, after the Delivery Point.
(b) Title and Risk of Loss. Title to, and risk of loss related to, the Output shall transfer
from Seller to Buyer after the Delivery Point.
3.3 Environmental Attributes and Capacity Attributes
(a) Generally. Throughout the Term, Seller shall transfer to Buyer, and Buyer shall
receive from Seller, all rights, titles and interest in and to the Environmental Attributes
and Capacity Attributes, if any, whether now existing or subsequently generated or
acquired (other than by direct purchase from a third party) by Seller, or that hereafter
come into existence, during the Term, as a component of the Output purchased by Buyer
from Seller hereunder. Seller agrees to transfer and make such Environmental Attributes
and Capacity Attributes available to Buyer immediately to the fullest extent allowed by
applicable law upon Seller's production or acquisition of the Enviromnental Attributes
and Capacity Attributes. Seller agrees that the Contract Price and the Test Energy Price,
as applicable are the full compensation for all Energy, Environmental Attributes, and
Capacity Attributes.
(b) No Assignment. Seller shall not assign, transfer, convey, encumber, sell or
otherwise dispose of any portion of the Environmental Attributes and Capacity Attributes
to any Person other than Buyer.
(c) RPS Compliance. Before delivery of any Test Energy hereunder, Seller shall cause:
(i) the Generating Facility to be certified by the appropriate entity having jurisdiction as
an ERR for purposes of the RPS legislation; and (ii) all Output delivered to Buyer from
the Generating Facility to qualify as output of an ERR for purposes of the RPS
legislation. Seller shall ensure that the Generating Facility maintains ERR status
throughout the Tenn of this Agreement. Seller shall cooperate reasonably with Buyer
and provide such certifications or attestations to Buyer as are reasonably necessary to
verify that all Environmental Attributes attributable to the Energy have been transferred
to Buyer.
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NCPA — 2008 Power Purchase Agreement
(d) Reporting Rights. During the Tenn, Seller shall not report to any Person that the
Environmental Attributes and Capacity Attributes granted hereunder to Buyer belong to
anyone other than Buyer, and Buyer may report under any program that such attributes
purchased hereunder belong to it.
(e) Attestation. Seller shall document the production of Environmental Attributes
under this Agreement by delivering with each invoice to Buyer an attestation for
Environmental Attributes produced by the Generating Facility and purchased by Buyer in
the preceding calendar month. On or before March 31 st of each year following a
Contract Year, Seller shall document the transfer of Environmental Attributes to Buyer
under this Agreement by delivering to Buyer an attestation for Environmental Attributes
transferred under this Agreement in the preceding Contract Year. The form of attestation
is set forth as Exhibit 11 [Form of Attestation]. Exhibit 11 [Form of Attestation] shall be
updated or changed by the Parties as necessary to ensure that Buyer receives full and
complete title to, and the ability to record with any EA Agency as its own, all of the
Environmental Attributes purchased hereunder.
(f) Documentation. At Buyer's request, the Parties, each at their own expense, shall
execute all such documents and instruments in order to effect the transfer of the
Environmental Attributes specified in this Agreement to Buyer or its designees, as Buyer
may reasonably request. Upon notification by an EA Agency that any transfers
contemplated by this Agreement will not be recorded, the Parties shall promptly
cooperate in taking all reasonable actions necessary so that such transfer can be recorded.
Each Party shall promptly give the other Party copies of all documents it submits to the
EA Agency to effectuate any transfers.
3.4 Tax Credits
Buyer agrees and acknowledges that all PTCs and ITCs in effect on the Effective Date
shall be owned by Seller and/or the owners of the Site. In the event that new tax credits
or increased levels of existing tax credits, or other financial incentives applicable to the
Generating Facility or the Output are enacted or implemented after the Effective Date and
during the Term of the Agreement, Seller agrees to share with Buyer fifty percent (50%)
of the value of such tax credits and/or financial incentives realized by Seller or its
affiliates in respect of the Generating Facility or the Output.
3.5 R.iLFht of First Refusal for Expansion Plant and Expansion Plant Output
(a) Buyer's Right to Purchase. Seller may in its sole discretion determine, from time to
time, during the Tenn to develop, finance, construct and/or operate an'Expansion Plant.
Each time such a determination is made, Seller shall notify Buyer of such detennination
and shall offer in writing to sell the Expansion Plant Output to Buyer. The offer shall
include the price to be paid by Buyer for the Expansion Plant Output, and the term of the
proposed power purchase agreement ("PPA"). The PPA shall otherwise conform to the
teens and conditions of this Agreement. If Buyer wishes to accept such offer to purchase
all (or a portion) of the Expansion Plant Output, Buyer shall so notify Seller within ninety
(90) days of its receipt of such offer. The Parties shall promptly thereafter enter into a
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NCPA — 2008 Power Purchase Agreement
definitive PPA incorporating the terms of such offer. Until such an Expansion Plant PPA
is executed, Seller's proposal accepted by Buyer (including any modifications agreed
upon in writing by both Parties), shall control all dealings between the Parties relating to
the Expansion Plant.
(b) Seller's Right to Sell to Third Parties. If Buyer does not accept Seller's offer to
purchase all of the Expansion Plant Output within ninety (90) days of receipt of Seller's
offer, Seller shall be free to offer to sell that portion of the Expansion Plant Output not
accepted by Buyer to one or more third parties at a price and on other terns and
conditions which, taken as a whole, are at least as favorable to Seller as the price and
other terns and conditions set forth in Seller's offer to Buyer. If Buyer does not purchase
the Expansion Plant Output and Seller sells such Expansion Plant Output to a third party,
it shall promptly certify in writing to Buyer that the terms and conditions of sale of such
Expansion Plant Output to such third party, taken as a whole, are at least as favorable to
Seller as the price and other terns and conditions set forth in Seller's offer to Buyer, and
Seller shall provide the relevant contract and any other supporting documentation for
such certification. Upon the sale of such Expansion Plant Output in compliance with this
Agreement, Buyer shall have no further rights to be offered or to purchase such
Expansion Plant Output. Buyer's refusal of Expansion Plant Output from one Expansion
Plant shall not affect Buyer's right to purchase the Expansion Plant Output from a later
Expansion Plant under the terms of this Agreement. Seller shall not sell nor provide
Buyer's Expansion Plant Output to any third party unless it can do so without
compromising in any material way its ability to provide the Output to Buyer hereunder.
The materiality of any such impact shall be determined by Buyer in its reasonable
discretion.
3.6 Option to Install Emission Controls
Buyer may at its option, exercised from time to time, install emission controls on the
Generating Facility in connection with the Contract Capacity beyond those then required
to meet the Requirements of Law applicable to Seller or the Generating Facility, provided
that:
(i) Buyer shall (a) bear all costs and financial, regulatory and operational risks
thereof, including the capital cost thereof and any increase in operation or
maintenance expenses, (b) keep Seller whole in all respects, including for
decreases in Output and other adverse effects on the Contract Capacity and
its performance, increases in opetations and maintenance costs and failures
of such emission controls to operate; and (c) retain any and all benefits
resulting from the emission controls installed by Buyer, including
environmental offsets, additional energy production, operation and
maintenance cost savings, and tax credits; and
(ii) Buyer shall not make any such changes to the Contract Capacity without the
approval of Seller to the design and plan for implementation of such
changes, such approval not to be unreasonably withheld.
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NCPA — 2008 Power Purchase Agreement
ARTICLE 4: METERING
4.1 Metering Requirements
(a) Meters. The transfer of Energy from Seller to Buyer shall be measured by revenue
quality Meters at the Delivery Point. Such Meters shall be selected, provided, installed,
owned, maintained and operated, at Seller's sole cost and expense, by Seller or its
designee in accordance with the ISO Tariff. Seller shall exercise reasonable care in the
maintenance and operation of the Meters, and shall test and verify the accuracy of each
Meter at least annually. Seller shall infonn Buyer in advance of the time and date of
these tests, and shall pen -nit Buyer to be present at such tests and to receive the results of
such tests.
(b) SCADA. Seller shall install and maintain all equipment and data circuits necessary
to determine and transmit real time supervisory control and data acquisition ("SCADA")
system data and real time data from the Meter to the ISO. Seller shall provide to Buyer a
copy of each certificate of compliance issued by ISO, if any.
(c) Access by Buyer. Buyer shall be provided access to all monitored SCADA points
to be used at its discretion in real time monitoring. Buyer may further, at its sole cost and
expense, install any updates or upgrades to the Meters, as well as install and maintain
check meters and all associated measuring equipment necessary to pennit an accurate
determination of the quantities of Energy delivered under this Agreement, provided that
such equipment does not interfere with Seller's Meters. Seller shall permit Buyer or
Buyer's representative access to its Generating Facility for the purpose of installing and
maintaining such check meters.
(d) ISO Requirements. Seller shall submit to the ISO, or allow the ISO to retrieve, any
meter data required by the ISO related to the Generating Facility and its Output in
accordance with the ISO's settlement and billing protocol and meter data tariffs.
4.2 Meter Inaccuracies and Retroactive Adjustments
If a Meter fails to register, or if the measurement made by a Meter is found upon testing
to be inaccurate by an amount exceeding plus or minus one percent (1%), an adjustment
shall be made correcting all measurements made by the inaccurate or defective Meter
during the Adjustment Period. If the Parties are unable to agree on the amount of the
adjustment to be applied to the Adjustment Period, the amount of the adjustment shall be
determined: (i) by correcting the error if the percentage of error is ascertainable by
calibration, tests or mathematical calculation, or (ii) if not so ascertainable, by estimating
on the basis of the deliveries under similar conditions during periods when the Meter was
registering accurately. Upon the determination of the amount of any adjustment and
upon acceptance of such adjustment by the ISO, if applicable, Buyer shall pay to Seiler
any additional amounts then due for deliveries of Output during the Adjustment Period at
such time as other payments are due for the billing period in which the determination is
made, or Buyer shall be entitled to a credit against the next subsequent payments due for
the deliveries of Output, whichever case is applicable.
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NCPA — 2008 Power Purchase Agreement
4.3 Records and Audits
Seller and Buyer shall each keep complete and accurate records and all other data
required by each Party for the purposes of proper administration of this Agreement,
including such records as may be required by state or federal regulatory authorities. To
facilitate payment and verification, Seller and Buyer shall keep all books and records
necessary for billing and payments and grant the other Party reasonable access to those
records. Seller and Buyer, at their own expense, shall have the right to audit and to
examine the billing and operating records and data kept by the other Party relating to the
transactions under, and the administration of, this Agreement at any time during normal
business hours throughout the Term of this Agreement and for two years thereafter. All
such records and data shall be maintained by each Party throughout the Term of this
Agreement and for a period of not less than two (2) years following the termination
hereof. All such audits and examinations shall be conducted upon reasonable notice and
during normal business hours.
ARTICLE 5: BILLING AND PAYMENT
5.1 Billing
(a) Generally. Seller shall read the Meters at the end of each calendar month of the
Term, and provide to Buyer on or before the tenth (10th) day of the following month: (i)
an invoice based upon the Meter data for Energy delivered in such previous calendar
month; and (ii) the corresponding attestation pursuant to Exhibit 11 Form of
Attestationl. Such invoice shall be delivered as specified under Section 11.1.
(b) Disputes over Invoice. Should either Seller or Buyer determine at a later date, but
in no event later than one (1) year after the original invoice date, that the invoice amount
was incorrect, that Party shall promptly notify the other Party of the error. Iii the event
that an invoice or portion thereof, or any other claim or adjustment arising hereunder, is
disputed, payment of the undisputed portion of the invoice shall be required to be made
when due, with notice of the objection given to the other Party. Payment of the disputed
amount shall not be required until the dispute is resolved. Upon resolution of the dispute,
any required payment shall be made within thirty (30) Business Days of such resolution
along with interest accrued at the Interest Rate from, and including, the due date to, but
excluding the date paid. Inadvertent overpayments by Buyer shall be returned upon
request or deducted by Seller from subsequent payments, with interest accrued at the
Interest Rate from, and including, the date of such overpayment to, but excluding the date
repaid or deducted by, Seller. Any dispute with respect to an invoice is waived unless the
other Party is notified in accordance with this Section 5.1(b) within one (1) year after the
invoice is rendered or any specific adjustment to the invoice is made. If an invoice is not
rendered within one (1) year after the close of the month during which performance
occurred, the right to payment for such performance is waived. Failure of Buyer or its
agent to withhold any payment amount is not a waiver of Buyer's right to challenge such
amount.
NCPA — 2008 Power Purchase Agreement
5.2 Payment
(a) Generally. Subject to Section 5.1(b), all invoices under this Agreement shall be due
and payable on or before thirty (30) days after receipt of the invoice or, if such day is not
a Business Day, then on the next Business Day. Each Party shall make payments by
electronic funds transfer as set forth in Exhibit 12 [Payment/Wire Instructions], or by
other mutually agreeable method(s), to the account designated by the other Party.
(b) Late Payinents and Interest Rate. Payments made after the due date shall be
considered late and shall bear interest on the unpaid balance at an annual rate equal to
two percent (2%) plus the Interest Rate. Interest shall be computed on the basis of a 365 -
day year.
5.3 Nettine of Payments
The Parties hereby agree that they shall discharge mutual debts and payment obligations
due and owing to each other on the same date through netting, in which case all amounts
owed by each Party to the other for the purchase and sale of Output during the monthly
billing period under this Agreement, including any related damages, interest, and
payments or credits, shall be netted so that only the excess amount remaining due shall be
paid by the Party who owes it.
5.4 Allocation of Taxes
Seller shall pay or cause to be paid all Taxes on or with respect to the Output sold and
delivered hereunder arising at, or prior to, the Delivery Point. Buyer shall pay or cause to
be paid all Taxes on or with respect to the Output purchased and received from the
Delivery Point (other than ad valorem, franchise or income taxes which are related to the
sale of the Output and are, therefore, the responsibility of Seller). In the event Seller is
required by law or regulation to remit or pay Taxes which are Buyer's responsibility
hereunder, Buyer shall promptly reimburse Seller for such Taxes. If Buyer is required by
law or regulation to remit or pay Taxes which are Seller's responsibility hereunder, Buyer
may deduct the amount of any such Taxes fiom the sums due to Seller under this
Agreement. Nothing shall obligate or cause a Party to pay or be liable to pay any Taxes
for which it is exempt under the law. In the event that such Party does not prepare
audited financial statements, such Party shall provide financial statements prepared in
accordance with GAAP demonstrating its financial condition in form and substance
reasonably acceptable to the other Party.
ARTICLE 6: CREDIT REQUIREMENTS
6.1 Financial Information
If requested by one Party, the other Party shall deliver: (i) within one hundred and
twenty (120) days following the end of each fiscal year, a copy of the other Party's
annual report containing audited consolidated financial statements for such fiscal year,
and (ii) within sixty (60) days after the end of each of its first three (3) fiscal quarters of
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NCPA — 2008 Power Purchase Agreement
each fiscal year, a copy of the other Party's quarterly report containing unaudited
consolidated financial statements for such fiscal quarter. In all cases the statements shall
be for the most recent accounting period and prepared in accordance with GAAP;
provided, however, that should any such statements not be available on a timely basis due
to a delay in preparation or certification, such delay shall not be an Event of Default so
long as the other Party diligently pursues the preparation, certification and delivery of the
statements.
6.2 Credit
(a) Required Credit Rating. Subject to Sections 6.2(b) and (c) below, Seller, or its
Guarantor (if applicable), shall maintain a minimum credit rating no lower than the
Required Credit Rating throughout the Tenn of this Agreement.
(b) Seller's Failure to Maintain Required Credit Rating. At any time during the Term
of this Agreement, in the event that Seller's credit rating by either S&P or Moody's is
lower than the Required Credit Rating, or in the event that Seller's senior unsecured long-
term debt is not rated by S&P or Moody's, then Seller shall provide to the other within
three (3) Business Days of request: (i) a Guaranty from a Guarantor with a credit rating
equal to, or better than, the Required Credit Rating; or (ii) either a Letter of Credit or cash
in an amount equal to the Credit Support Amount. If Seller's credit rating is below the
Required Credit Rating on the Effective Date of this Agreement, Seller shall provide
contemporaneously with the Agreement: (i) a Guaranty from a Guarantor with a credit
rating equal to, or better than, the Required Credit Rating; or (ii) either a Letter of Credit
or cash in an amount equal to the Credit Support Amount.
(c) Guarantor's Failure to Maintain Required Credit Rating. In the event that Seller's,
and its Guarantor's, credit rating by either S&P or Moody's is lower than the Required
Credit Rating, or in the event that Seller's, and its Guarantor's (if applicable), senior
unsecured long-term debt is not rated by S&P or Moody's, then Seller shall provide to the
other within three (3) Business Days of request either a Letter of Credit or cash in an
amount equal to the Credit Support Amount.
ARTICLE 7: SELLER'S ADDITIONAL OBLIGATIONS
During the Tenn of this Agreement, Seller hereby agrees to perforin the following
obligations, in addition to Seller's obligations pursuant to Articles 3, 4, 5, and 6:
7.1 Construction, Operation and Maintenance of the Generating Facility
(a) Generally. Seller shall develop, finance, construct, own, operate, and maintain the
Generating Facility in accordance with this Agreement, all Requirements of Law,
Contractual Obligations, Permits and Prudent Utility Practice.
(b) Compliance. Seller shall, in its own name and at its own expense, seek, obtain,
maintain, comply with and, as necessary, renew and modify from time to time, all
Pen -nits and other authorizations that are required by any Requirements of Law or
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NCPA — 2008 Power Purchase Agreement
Govermnental Authority as are necessary for Seller to engage in the activities and
obligations required by the Agreement.
(c) Records. Seller shall keep complete and accurate operating and other records and
all other data for the purposes of proper administration of this Agreement as reasonably
required by Buyer, including such records as may be required by any Governmental
Authority or Prudent Utility Practice.
(d) Disclosure. Seller shall provide to Buyer such information regarding the
permitting, engineering, construction or operations of the Generating Facility as Buyer
may from time to time reasonably request, subject to licensing or other restrictions of
Seller or a third party with respect to confidentiality, disclosure or use.
(e) Insurance. Seller shall obtain and maintain the policies of insurance in amounts and
with coverage as set forth in Exhibit 14 [Seller's Insurance_Informationl.
7.2 Milestones
(a) Generally. Seller covenants that it will diligently pursue all Milestones set forth in
Exhibit 7 [Milestonesl, including the Commercial Operation Date. The Parties agree that
time is of the essence in connection with the completion of the Generating Facility, and
that certain Milestones for the development, financing and construction of the Generating
Facility must be achieved in a timely fashion or Buyer shall suffer damages. Seller shall
achieve the Milestones by the corresponding dates set forth in Exhibit 7 [Milestones].
(b) Monthly Reports. Starting on the Effective Date, Seller shall provide to Buyer
monthly progress reports concerning the progress towards completion of the Milestones.
In addition, within five (5) Business Days of the completion of each Milestone, Seller
shall provide a certification to Buyer (along with any supporting documentation)
demonstrating the satisfaction of such Milestone. Seller shall provide to Buyer additional
information concerning Seller's progress towards, or confirmation of, achievement of the
Milestones, as Buyer may reasonably request from time to time.
(c) Notice of Failure To Achieve a Milestone. Upon becoming aware that Seller will,
or is reasonably likely to, fail to achieve one or more Milestone(s) by the required date,
for any reason including a Force Majeure Event, Seller shall so notify Buyer in writing as
soon as is reasonably practical. Such notice shall explain the cause of the delay, provide
an updated date for achievement of the Milestone(s), and describe Seller's plan for
meeting such Milestone(s). Seller's notice will also explain any impact such delay may
or will have on any other Milestone, and the measures to be taken to mitigate such
impact.
(d) Failure To Achieve Milestone. In the event that Seller fails to meet any Milestone
by the applicable Milestone deadline as set forth in Exhibit 7 [Milestones], as such
deadline may be extended as a result of a Force Majeure Event in accordance with
Section 7.2(e), Seller shall be liable for Delay Liquidated Damages for each full month
(with parts of a month pro rated) that Seller is late in satisfying the Milestone. So long as
Seller is paying such Delay Liquidated Damages on a monthly basis Buyer shall not be
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NCPA — 2008 Power Purchase Agreement
7.3
7.4
permitted to terminate this Agreement, provided that in no event shall the combined
extensions by payment of Delay Liquidated Damages for any or all of the Milestones
exceed twelve (12) months. If any Milestone has not been satisfied within twelve (12)
months following the relevant Milestone deadline, or if for any reason Seller fails to pay,
or discontinues paying, the monthly Delay Liquidated Damages provided for above,
Seller shall have committed an Event of Default. The twelve (12) month period referred
to in the prior sentence shall not be extended as a result of a Force Majeure Event.
(e) Force Majeure Event. In the event that a Force Majeure Event causes any delay in
the achievement of a Milestone, such Milestone's deadline may be extended, together
with any Force Majeure Event extensions for other Milestones, for a period not to exceed,
in the aggregate, six (6) months. The extension of the deadline for any Milestone shall
extend the deadline for all subsequent Milestones, provided that in no event shall the
combined extensions for Force Majeure Events for any or all of the Milestones exceed six
(6) months. The extension provided for in this Section 7.2(e) shall be the only effect of a
Force Majeure Event on Seller's obligations with respect to the Milestones.
(f) Waiver of Rig_l1_t. Buyer may, at its discretion, grant waivers for Seller's failure to
meet any of the Milestones, but in no way shall any such waiver constitute a waiver of
any future failures by Seller to meet other Milestones.
Commercial Operation Performance Tests
No later than fourteen (14) days prior to conducting its Commercial Operation
Performance Tests, Seller shall notify Buyer of the date on which it intends to conduct
such tests. Within seven (7) days of the successful completion of Seller's Commercial
Operation Performance Tests, Seller shall provide to Buyer written notification of the
Commercial Operation Date, including any relevant data demonstrating that Commercial
Operation has occurred. Buyer has the right to be present during any Commercial
Operation Performance Test, and to receive all information, including meter and
performance data associated with such tests. Seller may change the date for such tests
upon written notice to Buyer, provided that Buyer has at least fourteen (14) days' notice
of the date of such tests.
Performance Guaranties
(a) Availability. By noon on Wednesday of each week throughout the Tenn, Seller
shall deliver Ao Buyer a report detailing the expected Availability of the Generating
Facility for the next week and the actual availability of the Generating Facility for the
preceding week. The report shall include any and all full or partial unit shut -downs or
derations, Force Majeure Events, scheduled maintenance, forced outages, curtailments,
and other events affecting Availability. Unless challenged by Buyer, Seller's report of
actual Availability shall determine such Availability. If challenged, Seller's report shall
be considered Seller's determination of Availability and shall not be considered evidence
of actual Availability. Seller shall provide to Buyer, upon request, all information
concerning Availability as Buyer may reasonably request. Seller shall, with respect to
each Contract Year, maintain an Availability of ninety-five percent (95%) or more during
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NCPA — 2008 Power Purchase Agreement
the Peak Months and an Availability of eighty percent (80%) or more during the Non -
Peak Months. Within thirty (30) days of the end of each Peak Months and Non -Peak
Months, Seller shall provide a period performance report detailing the actual Availability
of the Generating Facility during the given period of months. In the event that Seller fails
to meet the Availability during either the Peak Months or the Non -Peak Months of any
Contract Year, Seller shall pay to Buyer within thirty (30) days of the period performance
report, or, at Buyer's option (as effected by written notice to Seller within fifteen (15).
days of the period performance report), Buyer may offset payments to Seller in the next
monthly billing statement, an amount equal to the Availability Shortfall Damages.
(b) Expected Annual Contract Quantity.
(i) For all resources not identified as Intermittent Resources, if during any
Contract Year, other than the first and last Contract Years, Seller fails to
Schedule and deliver to Buyer hereunder from the Generating Facility
seventy percent (70%) or more of the Expected Annual Contract Quantity
for any reason Seller shall pay to Buyer the product of (i) the positive
difference between the Replacement Price and the Contract Price, and (ii)
the difference between seventy percent (70%) of the Expected Annual
Contract Quantity and the amount of Energy actually Scheduled and
delivered.
(ii) For all resources identified as Intermittent Resources, if during any Contract
Year, other than the first and last Contract Years, Seller fails to Schedule
and deliver one hundred and forty percent (140%) of the Expected Annual
Contract Quantity on a rolling two (2) year basis, Seller shall pay to Buyer
the product of (i) the positive difference between the Replacement Price and
the Contract Price, and (ii) the difference between one hundred and forty
percent (140%) of the Expected Annual Contract Quantity and the amount
of Energy actually Scheduled and delivered.
(iii) For all resources, if Seller is prevented from generating or delivering Output
due to a Force Majeure Event, Seller's obligation under this Section 7.4(b)
shall be reduced to the extent of such impact.
(iv) Any dispute regarding the calculation of the Replacement Price shall be
resolved in accordance with Section 11.2(d) of this Agreement.
(c) Limitations. If during any Contract Year, Seller pays to Buyer amounts raider
Section 7.4(a), such amounts shall be subtracted from any amounts that Seller may also
owe to Buyer under Section 7.4(b); provided that the difference shall not be less than
zero. The Parties recognize and agree that (i) the actual damages to Buyer for a failure by
Seller to meet the required Availability or to deliver the Expected Annual Contract
Quantity are difficult or inconvenient to determine, (ii) payment of amounts by Seller
pursuant to this Section 7.4 is an appropriate remedy, and (iii) any such payment does not
constitute a forfeiture or penalty of any kind, but rather constitutes anticipated costs to
Buyer under the terms of this Agreement.
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NCPA — 2008 Power Purchase Agreement
7.5 Obligation to Schedule and Deliver
(a) Scheduling. Seller shall be responsible for designating a Scheduling Coordinator
for the transmission of Energy from the Generating Facility to the Delivery Point in
accordance with applicable ISO rules. The Scheduling Coordinator shall be identified in
Exhibit 10 [Operations Forecasts and Scheduling Protocols].. Seller may change its
Scheduling Coordinator upon thirty-five (35) days advance written notice to Buyer.
Seller shall Schedule or cause to be Scheduled the Energy generated by the Generating
Facility in accordance with, and shall at all times comply with, all applicable ISO
requirements and the provisions of Exhibit 10 [Operations Forecasts and Schedqun
Protocols].
(b) Agreement with Transmission Provider. Seller shall, at its own cost and expense,
negotiate and enter into an Interconnection Agreement and such other agreements with
the Transmission Provider as needed to enable Seller to transmit Energy to the Delivery
Point.
(c) Agreements with ISO. Seller shall, at its own cost and expense, negotiate and enter
into any agreements with the ISO required by the ISO for generators delivering power
into the ISO -controlled grid, including a Meter Service Agreement for ISO Metered
Entities and a Participating Generator Agreement.
(d) Start-ups and Shut -downs. Seller shall coordinate all Generating Facility start-ups
and shut -downs, in whole or in part, with Buyer in accordance with ISO scheduling
protocols and the reasonable protocols established by Buyer that are not inconsistent with
the ISO Tariff and ISO procedures, as specified in Exhibit 10 [Operations Forecasts and
Scheduling Protocols].
7.6 Modifications to the Generatiny_ Facility
Seller shall obtain Buyer's written consent, which shall not be unreasonably withheld or
delayed prior to making any modifications to the Generating Facility that could adversely
affect Seller's or Buyer's ability to perform its obligations under this Agreement,
including the delivery of the Expected Annual Contract Quantity and meeting the
Availability requirements of Section 7.4. Any such modifications shall be conducted in
accordance with Good Utility Practice and all applicable laws and reliability criteria, as
such may be amended from time to time.
ARTICLE 8: FORCE MAJEURE
8.1 Force Maieure Events
(a) Excuse. Subject to Section 8.2 below, and except as expressly set forth herein,
neither Party shall be considered in default under this Agreement for any delay or failure
in its performance under this Agreement (including any obligation to deliver or accept
Output) if such delay or failure is due to a Force Majeure Event, but only to the extent
that:
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(i) such Force Majeure Event is not attributable to fault or negligence on the
part of that Party;
such Force Majeure Event is caused by factors beyond that Party's
reasonable control; and
(iii) despite taking all reasonable technical and commercial precautions and
measures to prevent, avoid, mitigate or overcome such event and the
consequences thereof, the Party affected has been unable to prevent, avoid,
mitigate or overcome such event or consequences.
(b) Definition. "Force Majeure Event" may include, subject to Section 8.1(a) above
and (c) below:
(i) acts of God such as storms, floods, lightning and earthquakes;
(ii) sabotage or destruction by a third party of facilities and equipment relating
to the performance by the affected Party of its obligations under this
Agreement;
(iii) Transmission System or generating equipment failure;
(iv) war, riot, acts of a public enemy or other civil disturbance;
(v) strike, walkout, lockout or other significant labor dispute;
(vi) curtailment by the ISO, or its successor, but only to the extent that the ISO
declares a "Force Majuere" under the ISO Tariff, or
(c) Exclusion. "Force Majeure Event" does not include the following:
(i) economic hardship of either Party;
(ii) an Outage, except if caused directly by an event or circumstance that meets
the requirements set forth in this Section 8.1;
(iii) failure or delay in the granting of Permits;
(iv) failures or delays by the Transmission Provider or the ISO in entering into,
or performing under, all agreements with Seller contemplated by this
Agreement;
(v) curtailment or interruption of transmission services, other than by the ISO
where the ISO declares a "Force Majeure" under the ISO Tariff, or
(vi) insufficiency, unavailability, failure, or diminishment of [insert resource
type] resource, except as a result of an event that would otherwise qualify as
a Force Majeure Event.
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8.2 Conditions
In addition to the conditions set forth in Section 8.1(a) above, a Party may rely on a claim
of a Force Majeure Event to excuse its perfonnance only to the extent that such Party:
(i) provides prompt notice of such Force Majeure Event to the other Parry,
giving an estimate of its expected duration and the probable impact on the
performance of its obligations under this Agreement;
(ii) exercises all reasonable efforts to continue to perform its obligations under
this Agreement;
(iii) expeditiously takes action to correct or cure the event or condition excusing
performance so that the suspension of perfonnance is no greater in scope
and no longer in duration than is dictated by the problem; provided,
however, that settlement of strikes or other labor disputes shall be
completely within the sole discretion of the Party affected by such strike or
labor dispute;
(iv) exercises all reasonable efforts to mitigate or limit damages to the other
Party; and
(v) provides prompt notice to the other Party of the cessation of the event or
condition giving rise to its excuse from performance.
8.3 Termination Due To Force Majeure Event
In addition to and without limiting any other provisions of this Agreement, if a Party is
prevented from performing its material obligations under this Agreement for a period of
either (i) three hundred and sixty five (365) consecutive days or more, or (ii) seven
hundred and thirty (730) non-consecutive days or more (whether full or partial days), the
unaffected Party may terminate this Agreement, without liability of either Party to the
other, upon thirty (3 0) days written notice at any time during the Force Majeure Event.
ARTICLE 9: DEFAULT/REMEDIES/TERMINATION
9.1 Events of Default Generally
An `Event of Default" shall mean, with respect to each Party, the occurrence of any of
the following:
(i) the failure to make, when due, any payment required pursuant to this
Agreement if such failure is not remedied within thirty (30) Business Days
after written notice;
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any representation or warranty made by such Party herein is false or
misleading in any material respect when made or when deemed made or
repeated;
(iii) the failure to perforin any material covenant or obligation set forth in this
Agreement (except to the extent constituting a separate Event of Default,
and except for the obligations set forth in Section 7.4, the exclusive
remedies for which are provided in such Section) if such failure is not
remedied within thirty (30) days after written notice (provided that if such
failure is not capable of being remedied within such period, then for such
longer period as is reasonably needed to effect the remedy, not to exceed
one -hundred -eighty (180) days, so long as the failing Party diligently
pursues such remedy);
(iv) the initiation of an involuntary proceeding against such Party under the
bankruptcy or insolvency laws, which involuntary proceeding remains
undismissed for sixty (60) days, or in the event of the initiation by such
Party of a voluntary proceeding under the bankruptcy or insolvency laws;
(v) such Party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all of its assets to, another entity and, at the
time of such consolidation, amalgamation, merger or transfer, the resulting,
surviving or transferee entity fails to assume all the obligations of such
Party under this Agreement to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably satisfactory to the
other Party, or
(vi) with respect to each Party's Guarantor, if any:
1. if any representation nor warranty made by a Guarantor in connection
with this Agreement is false or misleading in any material respect
when made or when deemed made or repeated;
2. the failure of a Guarantor to make any payment required or to perform
any other material covenant or obligation in any Guaranty made in
connection with this Agreement and such failure is not remedied
within three (3) Business Days after written notice;
s
3. the initiation of an involuntary proceeding against such Guarantor
under the bankruptcy or insolvency laws, which involuntary
proceeding remains undismissed for sixty (60) consecutive days, or in
the event of the initiation by such Guarantor of a voluntary
proceeding under the bankruptcy or insolvency laws;
4. the failure of a Guarantor's Guaranty to be in full force and effect for
purposes of this Agreement (other than in accordance with its terms)
prior to the satisfaction of all obligations of such Party to which such
Guaranty shall relate without the written consent of the other Party; or
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9.2
9.3
5. if a Guarantor repudiates, disaffirms, disclaims, or rejects, in whole or
in part, or challenges the validity of any Guaranty.
Additional Events of Default by Seller
In addition to the Events of Default in Sections 7.2 and 9.1 above, the following shall
each constitute an "Event of Default" by Seller:
(i) Seller Schedules and/or delivers to Buyer energy or other product from a
resource other than the Generating Facility specified in this Agreement;
(ii) With respect to a Generating Facility that is not identified as an Intermittent
Resource, Seller fails for any reason, including as a result of a Force Majure
Event, to Schedule and/or deliver at least one-half of the Expected Annual
Contract Quantity during any Contract Year, other than the first and last
Contract Years;
(iii) With respect to a Generating Facility that is identified as an Intermittent
Resource, Seller fails for any reason, including as a result of a Force Majure
Event, to Schedule and/or deliver at least one-half of the Expected Amival
Contract Quantity during one of any two consecutive Contract Years, not
including the first and last Contract Years;
(iv) Seller fails to satisfy the creditworthiness requirements set forth in Section
6.2 of this Agreement;
(v) Seller sells or transfers Buyer's share of the Output (or any individual
component thereof) to any Person other than Buyer; or
(vi) Seller fails to comply with the terms of Buyer's right of first refusal as
described in Section 3.5 of this Agreement.
Remedies; 'Termination for Default
(a) Termination for Default. In the event the defaulting Party fails to cure the Event of
Default within the period for curative action under Sections 9.1 or 9.2, as applicable, the
non -defaulting Party may tenninate the Agreement by notifying the defaulting Party in
writing of (i) the decision to terminate, and (ii) the effective date of the tennination.
(b) Remedies. For all claims, causes of action and damages with respect to an Event of
Default, in addition to the right to tennination under Section 9.3(a), the non -defaulting
Party shall be entitled to foreclose upon, or otherwise employ, any security provided by
the defaulting Party, and to recover actual damages allowed by law unless otherwise
limited by this Agreement. Neither the enumeration of Events of Default in Sections 9.1
and 9.2, nor the termination of this Agreement by a non -defaulting Party pursuant to
Section 9.3(a), shall limit the right of a non -defaulting Party to rights and remedies
available at law, including claims for breach of contract or failure to perform by the other
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Party and for direct damages incurred by the non -defaulting Party as a result of the
termination of this Agreement.
(c) Limitations. Except as otherwise specifically and expressly provided in this
Agreement, neither Party shall be liable to the other under this Agreement for any
indirect, special or consequential damages, including loss of use, loss of revenues, loss of
profit, interest charges, cost of capital or claims of its customers or members to which
service is made. Under no circumstances shall the non -defaulting Party be required to
make a termination payment or other payment in respect of any damages to the defaulting
Party (except for payments due under this Agreement for performance prior to
termination).
9.4 Indemnification
Seller and Buyer agree to defend, indemnify, and hold each other, and their respective
officers, directors, employees and agents, harmless from and against all claims, demands,
losses, liabilities, and expenses (including reasonable attorneys' fees) (collectively,
"Damages") for personal injury or death to persons and damage to each other's physical
property or facilities or the property of any other Person to the extent arising out of,
resulting from, or caused by the negligent or intentional and wrongful acts, errors, or
omissions of the indemnifying Party. This indemnification obligation shall apply
notwithstanding any negligent or intentional acts, errors or omissions of the indemnitees
but the indemnifying Party's liability to pay Damages to the indemnified Party shall be
reduced in proportion to the percentage by which the indemnitees' negligent or
intentional acts, errors or omissions caused the Damages. Neither Party shall be
indemnified for its Damages resulting from its sole negligence or willful misconduct.
These indemnity provisions shall not be construed to relieve any insurer of its obligation
to pay claims consistent with the provisions of a valid insurance policy.
9.5 Buyer's Right to Operate
If an Event of Default under Sections 9.2(ii) or 9.2(iii) occurs, then Buyer or its designee
may, but shall not be obligated to, step-in and assume operational control from Seller of
the Generating Facility; provided that Buyer shall not be permitted to step-in and take
control so long as Seller or any of Seller's Lenders are using commercially reasonable
efforts to remedy the Events of Default. Buyer, its employees, contractors and designees
shall have the unrestricted right to enter the Generating Facility to the extent necessary to
operate the Generating Facility. Upon the exercise of this right, Buyer or its designee
shall at all times operate the Generating Facility using Prudent Utility Practice and shall
comply, to the extent commercially practicable, with the terms of this Agreement.
Notwithstanding the foregoing, Seller shall not be excused from any obligation or remedy
available to Buyer as a result of Buyer's operation of, or election not to operate, the
Generating Facility. Buyer shall pay Seller the applicable Contract Price for Output
provided hereunder, less any costs incurred by Buyer to operate the Generating Facility.
Buyer shall indemnify and hold Seller harmless from any liability to third parties arising
out of Buyer's failure to operate the Generating Facility using Prudent Utility Practice.
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Upon Buyer's satisfaction that Seller has the ability to operate the Generating Facility in
accordance with this Agreement, Seller shall resume operational control.
ARTICLE 10: REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 Seller's Representations, Warranties and Covenants
Seller represents, warrants and covenants to Buyer that as of the date of execution of this
Agreement:
(i) Seller is duly organized and validly existing as a [Seller's business
registration] under the laws of [State of Registration], and has the lawful
power to engage in the business it presently conducts and contemplates
conducting in this Agreement and Seller is duly qualified in each
jurisdiction wherein the nature of the business transacted by it makes such
qualification necessary;
(ii) Seller has the legal power and authority to make and carry out this
Agreement and to perform its obligations hereunder; all such actions have
been duly authorized by all necessary proceedings on its part. As of the
Commercial Operation Date, (a) the Generating Facility is a "qualifying
small power production facility" as that term is defined in Section 3(17)(C)
of the Federal Power Act, and will possess all of the exemptions from
regulation provided in 18 C.F.R. Sections 292.601(c) and 292.602; or (b)
Seller has market-based rate authority, and has made all filings required in
connection with this Agreement, under Federal Power Act;
(iii) throughout the Terrn: (a) the Generating Facility will qualify and be
certified by the California Energy Commission ("CEC") as an ERR under
the rules and requirements in effect as of the Effective Date; and (b) the
Output delivered to Buyer will qualify as output from an ERR under the
requirements of the RPS Legislation and under the rules and requirements
in effect as of the Effective Date;
(iv) this Agreement has been duly and validly executed and delivered by Seller
and, as of the Effective Date, constitutes a legal, valid and binding
obligation of Seller, enforceable in accordance with its teens against Seller,
except to the extent that its enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally or by general principles of equity;
(v) there are no actions, suits, proceedings or investigations pending or, to the
knowledge of Seller, threatened in writing against Seller, at law or in equity
before any Governmental Authority, which individually or in the aggregate
are reasonably likely to have a materially adverse effect on the business,
properties or assets or the condition, financial or otherwise, of Seller, or to
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result in any impairment of Seller's ability to perform its obligations under
this Agreement;
(vi) Seller will deliver to Buyer at the Delivery Point the Output free and clear
of all liens, security interests, claims and encumbrances or any interest
therein, or thereto, by any Person.
(vii) Seller holds and will hold throughout the Terin, the rights to all
Enviromnental Attributes and Capacity Attributes, which it has conveyed
and has committed to convey to Buyer hereunder; and
(viii) the execution, delivery and performance of this Agreement by Seller will
not conflict with its governing documents, any applicable laws, or any
covenant, agreement, understanding, decree or order to which Seller is a
party or by which it is bound or affected.
10.2 Buyer Rem-esentations and Warranties
Buyer represents and warrants to Seller that as of the date of execution of this
Agreement:
(i) Buyer is a joint powers agency established pursuant to the laws of the State
of California, and has all requisite corporate power and authority to own,
lease, and operate its properties and to carry on its business as is now being
conducted;
(ii) Buyer is duly qualified or licensed to do business as a joint powers agency
and is in good standing in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification necessary, except where the failure to be so duly qualified
or licensed and in good standing would not have a material adverse effect;
(iii) Buyer has the legal power and authority to make and carry out this
Agreement and to perform its obligations hereunder and all such actions
have been duly authorized by all necessary proceedings on its part;
(iv) the execution, delivery and perforinance of this Agreement by Buyer will
not conflict with its governing documents, any applicable laws or any
covenant, agreement, understanding, decree or order to which Buyer is a
party or by which it is bound or affected;
(v) this Agreement has been duly and validly executed and delivered by Buyer
and, as of the Effective Date, constitutes a legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms against Buyer,
except to the extent that its enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally or by general principles of equity; and
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(vi) there are no actions, suits, proceedings or investigations pending or, to the
knowledge of Buyer, threatened in writing against Buyer, at law or in equity
before any Governmental Authority, which individually or in the aggregate
are reasonably likely to have a materially adverse effect on the business,
properties or assets or the condition, financial or otherwise, of Buyer, or to
result in any impairment of Buyer's ability to perform its obligations under
this Agreement.
ARTICLE 11: MISCELLANEOUS
11.1 Notices
All written notices, requests, statements or payments under this Agreement shall, unless
otherwise specified herein, be deemed properly sent if delivered in person or sent by
facsimile, reliable overnight courier, or sent by registered or certified mail, postage
prepaid to the persons specified in Exhibit 12 [Contacts]. Notice by facsimile or hand
delivery shall be effective at the close of business on the day actually received, if
received during a Business Day, and otherwise shall be effective at the close of the next
Business Day. Notice by overnight United States mail or courier shall be effective on the
next Business Day after it was sent. A Party may change its addresses by providing
notice of same in accordance herewith.
11.2 Dispute Resolution
(a) Arbitration or Mediation. Subject to Section 5.1(b), any dispute under this
Agreement between Seller, and Buyer shall, at the request of any Party, be referred to a
senior representative of each of the Parties for resolution on an informal basis as
promptly as practicable. In the event the senior representatives are unable to resolve the
dispute, the matter may be submitted to arbitration or mediation on such tenlls and
conditions as the Parties may agree.
(b) Liti a tion. In the event the Parties are unable to satisfactorily resolve the Dispute
within thirty (30) calendar days of such referral or such other period as the Parties may
mutually agree, subject to any extensions of time as may be mutually agreed upon in
writing, or any arbitration agreement, either Party may initiate litigation in a court of law
with jurisdiction pursuant to Section 11. 12, which shall be the exclusive venue to litigate
disputes.
(c) Remedies. Nothing in this Section 11.2 shall be construed to delay the exercise of
remedies pursuant to Section 9.3 pending the resolution of any dispute.
(d) Expert Arbitration. Notwithstanding the provisions of Sections 11.2(a) or (b),
disputes expressly referred for resolution under this Section 11.2(d) shall be resolved in
the following manner.
(i) Each Party shall, within fourteen (14) days of referral, appoint an expert for
inclusion on the arbitral panel.
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(ii) Within fourteen (14) days of the later of such appointments, the two Party -
appointed experts shall appoint a third expert. The third expert shall have at
least five (5) years of experience in electricity generation and sales matters
in California and shall not have been employed by either Party, including as
a consultant, or have had any other financial relationship to either Party, in
the last three (3) years.
(iii) In the event that a third expert cannot be agreed upon, within such fourteen
(14) day period, the Parties shall request [Name to be determined to
appoint the third expert.
(iv) Within fourteen (14) days of the appointment of the third expert, each Party
shall provide to the experts and the other Party such materials as it
determines to be relevant to the dispute. The experts may, in their
judgment, convene a hearing at which each Party may be subject to inquiry
by the experts and/or the other Party; provided, however, such Party shall
not be required to provide materials beyond those already provided.
(v) The experts shall render a decision on the dispute by a simple majority vote
within sixty (60) days of the selection of the third expert, and shall produce
a written explanation for their decision.
11.3 Re6ulatory Compliance
Each Party shall at all times comply with all applicable laws, ordinances, rules and
regulations applicable to it. As applicable, each Party shall give all required notices, shall
procure and maintain all Permits necessary for perfonnance of this Agreement, and shall
pay its respective charges and fees in connection therewith. In the event of any change to
the ISO Tariff that materially impacts either Party's obligations or ability to perform
under this Agreement, either Party may request that the Parties engage in good faith
negotiations to amend this Agreement such that an equitable balance of benefits and
burdens may be restored to the Parties. In the event that the Parties are unable to agree
upon any amendments to this Agreement within sixty (60) days of the request for
negotiations, either Party may invoke the dispute resolution provisions of Section 11.2(d).
Pending any resolution under Section 11.2(d), the Parties shall continue to comply with
the provisions of this Agreement.
11.4 No Dedication of Facilities
Any undertaking by one Party to the other under any provision of this Agreement shall
not constitute the dedication of the Generating Facility or any portion thereof to the
public or to any portion thereof.
11.5 Confidentiality
All Confidential Infonnation obtained by either Party from the other Party shall be used
only in connection with such Party's exercise of its rights or performance of its
obligations under this Agreement and shall not be disclosed to any third party, except as
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may be required by law (including the California Public Records Act, Cal. Government
Code Section 6250, etq. seq.), applicable regulation or judicial process; provided,
however, that if the receiving Party is required to disclose such Confidential Information
by applicable law, regulation or legal process, the receiving Party shall promptly notify
the disclosing Party of such pending disclosure prior to such disclosure; provided further
that Buyer may, at any time, disclose any information (i) determined by its attorney to be
required by law to be disclosed by a public entity such as the Buyer, and (ii) to those of
its members that receive some or all of the Output, whether directly or indirectly, from
Buyer. The provisions of this Section 11.5 shall survive for three (3) years after the
termination of this Agreement.
11.6 Assignment
(a) Buyer. Buyer may, without the consent of Seller (and without relieving itself from
liability hereunder) assign this Agreement or assign or delegate its rights and obligations
under this Agreement, if such assignment is made to: (i) one or more of its members; or
(ii) where such assignment does not occur by operation of law, any successor to Buyer
provided such successor is a public utility holding a certificate of public convenience and
necessity granted by the California Public Utilities Commission, or a municipal utility.
(b) Seller. Seller may, without the consent of Buyer (and without relieving itself from
liability hereunder): pledge, encumber, or assign this Agreement or the account,
revenues or proceeds hereof as collateral security in connection with any financing or
other financial arrangements for the Generating Facility, provided that in connection with
any such pledge, encumbrance, or assignment, the assignee agrees that upon any
foreclosure or exercise of similar remedies upon the Generating Facility or material assets
thereof, such assignee shall be bound by this Agreement.
(c) Written Consent Needed. Except as stated above, neither this Agreement nor any of
the rights, interests, or obligations hereunder shall be assigned by either Party, without
the prior written consent of the other Party, which consent shall not be unreasonably
withheld. Any assignment of this Agreement in violation of the foregoing shall be, at the
option of the non -assigning Party, void.
(d) Binding on Parties. This Agreement and all of the provisions hereof are binding
upon, and inure to the benefit of, the Parties and their respective successors and permitted
assigns.
11.7 Waiver of Rights
Waivers of any rights hereunder must be in writing and shall not be implied from
performance or usage of trade. The failure of either party to this Agreement to enforce or
insist upon compliance with or strict performance of any of the terns or conditions
hereof, or to take advantage of any of its rights hereunder, shall not constitute a waiver or
relinquishment of any such terns, conditions or rights, but the same shall be and remain
at all times in full force and effect.
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11.8 Section pleadings
All titles, subject headings, section titles and similar items are provided for the purpose of
reference and convenience and are not intended to be inclusive, definitive or to affect the
meaning of the contents or scope of the Agreement.
11.9 No Third Party Beneficiary
This Agreement shall not be construed to create rights in, or to grant remedies to, any
third party (other than a permitted successor or assignee bound to this Agreement) as a
beneficiary of this Agreement or any duty, obligation or undertaking established herein.
11.10 Forward Contract
The Parties acknowledge and agree that this Agreement and the transactions
contemplated by this Agreement constitute a "forward contract" within the meaning of
the United States Bankruptcy Code.
11.11 Applicable Law
This Agreement is made in the State of California and shall be interpreted and governed
by the laws of the State of California and/or the laws of the United States, as applicable.
11.12 Venue
The Parties hereby submit to the exclusive jurisdiction of the federal courts for the
Eastern District of the State of California; provided, however, that if such federal courts
sitting in the Eastern District of the State of California refuse jurisdiction, the Parties
agree to the exclusive jurisdiction of the state courts sitting in the County of Placer, State
of California.
11.13 Nature of Relationship
The duties, obligations and liabilities of the Parties are intended to be several and not
joint or collective. The Agreement shall not be interpreted or construed to create an
association, joint venture, fiduciary relationship or partnership between Seller and Buyer
or to impose any partnership obligation or liability or any trust or agency obligation or
relationship upon either Party. A Party shall not have any right, power or authority to
enter into any agreement or undertaking for, or act on behalf of, or act as or be an agent
or representative of or otherwise bind the other Party.
11.14 Good Faith and Fair Dealing; Reasonableness
The Parties agree to act reasonably and in accordance with the principles of good faith
and fair dealing in the performance of this Agreement. Unless expressly provided
otherwise in this Agreement: (i) wherever the Agreement requires the consent, approval
or similar action by a Party, such consent, approval or similar action shall not be
unreasonably withheld or delayed; and (ii) wherever the Agreement gives a Party a right
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to determine, require, specify or take similar action with respect to matters, such
determination, requirement, specification or similar action shall be reasonable.
11.15 Severability
Should any provision of this Agreement be or become void, illegal or unenforceable, the
validity or enforceability of the other provisions of this Agreement shall not be affected
and shall continue in full force and effect. The Parties will, however, use their best
endeavors to agree on the replacement of the void, illegal, or unenforceable provision(s)
with legally acceptable clauses that correspond as closely as possible to the sense and
purpose of the affected provision.
11.16 Counterparts
This Agreement may be executed in two or more counterparts and by different Parties on
separate counterparts, all of which shall be considered one and the same Agreement, and
each of which shall be deemed an original.
11.17 Cooperation
The Parties agree to reasonably cooperate with each other in the implementation and
performance of the Agreement. Such duty to cooperate shall not require either Party to
act in a manner inconsistent with its rights under this Agreement.
11.18 Limitation of Liabilities
To the extent permitted by law, no Parry's directors, members of its governing bodies,
officers or employees shall be liable to any other party or parties for any loss or damage
to property, loss of earnings or revenues, personal injury, or any other direct, indirect, or
consequential damages or injury, or punitive damages, which may occur or result from
the performance or non-perfonnance of this Agreement, including any negligence arising
hereunder. Any liability or damages faced by an officer or employee of a federal agency
or by that agency that would result from the operation of this provision shall not be
inconsistent with federal law. THERE IS NO WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED
WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE
EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS
AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH
OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF
DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF
DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S
LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL
OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED,
UNLESS THE PROVISION IN QUESTION PROVIDES THAT THE EXPRESS
REMEDIES ARE IN ADDITION TO OTHER REMEDIES THAT MAY BE
AVAILABLE. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY
PROVIDED HEREIN, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO
DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES
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SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES
OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY
HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES,
BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION
OR OTHERWISE. UNLESS EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO
THE PROVISIONS OF SECTION 9.4, IT IS THE INTENT OF THE PARTIES THAT
THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF
DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED
THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN
ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED
HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM
OR LOSS.
11.19 Further Assurances
The Parties hereto agree to execute and deliver promptly, at the expense of the Party
requesting such action, any and all other and further instruments, documents and
information that a Party may request, and that are reasonably necessary, or appropriate, to
give full force and effect to the ternis and intent of this Agreement.
11.20 Time is of the Essence "
Time is of the essence to this Agreement and in the performance of all of the covenants,
obligations and conditions hereof.
11.21 Construction
The Parties acknowledge that this Agreement was jointly prepared by them, by and
through their respective legal counsel, and any uncertainty or ambiguity existing herein
shall not be interpreted against either Party on the basis that the Party drafted the
language, but otherwise shall be interpreted according to the application of the rules on
interpretation of contracts.
11.22 Entire Agreement; Integration
This Agreement, together with all exhibits attached hereto, constitutes the entire
agreement between the Parties and supersedes any and all prior oral or written
understandings. No amendment, addition to or modification of any provision hereof shall
be binding upon the Parties, and neither Party shall be deemed to have waived any
provision or any remedy available to it, unless such amendinent, addition, modification or
waiver is in writing and signed by a duly authorized officer or representative of the
Parties.
37
NCPA — 2008 Power Purchase Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the Effective Date first written.
BUYER:
NORTHERN CALIFORNIA POWER AGENCY
Name:
Title:
SELLER:
[ATAME OF SELLER]
By:
Name:
Title:
NCPA — 2008 Power Purchase Agreement
Ml
EXHIBITS
Exhibit 1 Buyout Payment Form
Exhibit 2 Description of Generating Facility
Exhibit 3 Commercial Operation Performance Tests
Exhibit 4 Contract Price
Exhibit 5
Credit Support Amount
Exhibit 6
Expected Annual Contract Quantity Form
Exhibit 7
Milestones
Exhibit 8
Guaranty Agreement
Exhibit 9
Letter of Credit
Exhibit 10
Operations Forecasts and Scheduling Protocols
Exhibit 11
Form of Attestation
Exhibit 12
Payment / Wire Instructions
Exhibit 13a
Contacts, Buyer
Exhibit 13b
Contacts, Seller.
Exhibit 14
Seller's Insurance Information
1
NCPA — 2008 Power Purchase Agreement
Exhibit 1
BUYOUT PAYMENT
Contract Year
Buyout Payment in US$
Time period prior to the Commercial
Operation Date
$ [Buyout Payment Price or Formula]
Contract Year 1
$ [Buyout Payment Price or Formula]
Contract Year 2
$ [Buyout Payment Price or Formula]
Contract Year 3
$ [Buyout Payment Price or Formula]
Contract Year 4
$ [Buyout Payment Price or Formula]
Contract Year 5
$ [Buyout Payment Price or• Formula]
Contract Year 6
$ [Buyout Payment Price or Formula]
Contract Year 7
$ [Buyout Payrnent Price or Formula]
Contract Year S
$ [Buyout Payfnent Price or Formula]
Contract Year 9
$ [Buyout Payment Price or Formula]
Contract Year 10
$ [Buyout Payment Price or Formula]
Contract Year 11
$ [Buyout Payment Price or Formula]
Contract Year 12
$ [Buyout Payment Price or Formula]
Contract Year 13
$ [Buyout Payment Price or Formula]
Contract Year 14
$ [Buyout Payment Price or Formula]
Contract Year 15
$ [Buyout Payment Price or Formula]
Exhibit 1
NCPA—2007Power Putchase Agreement Page 1
Exhibit 2
DESCRIPTION OF GENERATING FACILITY
Name:
Owner:
Location:
Equipment:
Type of Facility:
Delivery Point:
Operator:
Buyer: NCPA Seller:
Name Name
Signature Signature
Date Date
Exhibit 2
NCPA— 2007 Power Purchase Agreement Page 1
Exhibit 3
COMMERCIAL OPERATION PERFORMANCE TESTS
Seller shall coordinate and schedule with Buyer a Performance Test after completion of all
equipment startup and commissioning activities. This Performance Test may be performed before
completing punch list items. Buyer shall be pennitted to witness the Performance Test, including
access to and copies of control room logs, control system display screens, and instrumentation data
for a reasonable period of time before, during and after the Perfonnance Test, and may also
concurrently conduct a site inspection of the Generating Facility, systems and equipment. Seller
shall supply a written copy of the Performance Test results to Buyer within five (5) business days
following the conclusion of such test. The Performance Test shall consist of uninterrupted
operation of the Generating Facility for a period of no less than ('", , . 1•
1) Compliance. The Performance Test shall demonstrate the ability of the Generating Facility to
comply with all material safety, system reliability, environmental, and other Requirements of Law,
this Agreement, and any related agreements, including any interconnection agreements.
2) Contract Capacity. The Performance Test shall demonstrate the ability of the Generating
Facility to reliably generate the full Contract Capacity.
3)
4)
[TO BE FURTIIER DETERMINED]
Exhibit 3
NCPA— 2007 Power Purchase Agreement Page 1
Exhibit 4
CONTRACT PRICE
Contract Price (Choose One)
❑ 1) Flat Rate Pricing:
The Contract Price Shall be
($/MWh).
OR
❑ 2) Escalated Pricing:
The Contract Price Shall be
($/MWh).
beginning (year).
The Contract Price Shall be escalated each
January 1 st as follows:
OR
❑ 3) Defined Prices as stated to the right.
Exhibit 4
NCPA-2007Power Purchase Agreement Page 1
Defined Price
Year
Price 3)
$/MWh
2007
.
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
r
2018
2019
2020
2021
2022
2023 j
2024
2025
2026
2027
2028
2029
2030
2031
Exhibit 5
CREDIT SUPPORT AMOUNT
[TO BE DETERMINED]
Exhibit 5
NCPA — 2007 Power Purchase Agreement Page 1
Exhibit 6
EXPECTED ANNUAL CONTRACT QUANTITY
Contract Year
Expected Annual Contract Quantity
Contract Year I
[Expected Annual Contract Quantity]
Contract Year 2
[Expected Annual Contract Quantity]
Contract Year 3
[Expected Annual Contract Quantity]
Contract Year 4
[Expected Annual Contract Quantity]
Contract Year 5
[Expected Annual Contract Quantity]
Contract Year 6
J[Expected
[Expected Annual Contract Quantity]
Contract Year 7
Annual Contract Quantity]
Contract Year 8
[Expected Annual Contract Quantity]
Contract Year 9
[Expected Annual Contract Quantity]
Contract Year 10
[Expected Annual Contract Quantity]
Contract Year 11
[Expected Annual Contract Quantity]
Contract Year I2
[Expected Annual Contract Quantity]
Contract Year 13
[Expected Annual Contract Quantity]
Contract Year 14
[Expected Annual Contract Quantity]
Contract Year 15
[Expected Annual Contract Quantity]
Contract Year 16
[Expected Annual Contract Quantity]
Contract Year 17
[Expected Annual Contract Quantity]
Contract Year 18
[Expected Annual Contract Quantity]
Contract Year 19
[Expected Annual Contract Quantity]
Contract Year 20
[Expected Annual Contract Quantity]
° Contract Year 21
[Expected Annual Contract Quantity]
Contract Year 22
[Expected Annual Contract Quantity]
Contract Year 23
[Expected Annual Contract Quantity]
Contract Year 24
[Expected Annual Contract Quantity]
Contract Year 25
[Expected Annual Contract Quantity]
Exhibit 6
NCPA — 2007 Power Purchase Agreement Page I
NCPA — 2007 Power Purchase Agreement
Exhibit 7
CONSTRUCTION MILESTONES
[TO BE DETERMINED]
Exhibit 7
Page 1
Exhibit 8
GUARANTY AGREEMENT
This Guaranty Agreement (the "Guaranty") is made by [Insert Guarantor's Name] ("Guarantor"),
a [Insert Guarantor's business registration and location thereof], in favor of Northern California
Power Agency (individually and collectively, the "Counterparty").
WHEREAS, Counterparty is a party to the Renewable Energy Power Purchase Agreement between
Northern California Power Agency and [Insert Seller's Name] ("Agreement") with [Insert Seller's
Name], a subsidiary of Guarantor (the "Company"); and
WHEREAS, the Guarantor is the parent of Company, and will receive substantial and direct
benefits from the transactions contemplated by the Agreement and has agreed to enter into this
Guaranty to provide assurance for the payment obligations of Company in connection with the
Agreement and to induce the Counterparty to enter into the Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration, the adequacy, receipt
and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:
1. Guaranty. The Guarantor hereby unconditionally, irrevocably and absolutely guarantees the
full and punctual payment when due (subject to written demand in accordance with Paragraph
6 below) of Company's payment obligations arising under the Agreement, as such Agreement
may be amended or modified by agreement between Company and the Counterparty from
time to time (the "Guaranteed Obligations"). In addition, Guarantor shall reimburse
Counterparty for all sums paid to Counterparty by Company with respect to such Guaranteed
Obligations which Counterparty is subsequently required to return to Company or a
representative of Company's creditors as a result of Company's bankruptcy, insolvency,
reorganization, liquidation, receivership, or similar proceeding. The Guarantor's obligations
and liability under this Guaranty shall be limited to payment obligations only and the
Guarantor shall have no obligation to perform under the Agreement, including, without
limitation, to sell, deliver, supply or transport gas, electricity or any other commodity.
If all or a part of any payment made by Guarantor to Counterparty hereunder is later
determined to have been improper because such amount was not actually owed by Company
to Counterparty under the Agreement, Counterparty shall repay such amount to Guarantor
within ten (10) business days of written demand by Guarantor together with any interest,
reasonable attorneys' fees, and/or costs of collection, if any, required by the Agreement4o be
paid by Counterparty in the collection of such amount.
2. Guaranty Absolute. The liability of Guarantor under this Guaranty shall be absolute,
irrevocable and unconditional irrespective of-
(a)
f
(a) any defect or deficiency in the Agreement or any other documents executed in
connection with the Agreement;
(b) any modification, extension or waiver of any of the terins of the Agreement;
Exhibit 8
NCPA — 2007 Power Purchase Agreement Page 1
(c) any change in the time, manner, terms or place of payment of or in any other term of,
all or any of the Guaranteed Obligations, or any other amendment or waiver of or
any consent to departure from the Agreement or any other agreement or instrument
executed in connection therewith;
(d) any sale, exchange, release or non -perfection of any property standing as security for
the liabilities hereby guaranteed or any liabilities incurred directly or indirectly
hereunder or any setoff against any of said liabilities, or any release or amendment or
waiver of or consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(e) except as to applicable statutes of limitation, failure, omission, delay, waiver or
refusal by the Counterparty to exercise, in whole or in part, any right or remedy held
by the Counterparty with respect to the Agreement or any transaction under the
Agreement;
(f) any change in the existence, structure or ownership of the Guarantor or Company, or
any bankruptcy, insolvency, reorganization, liquidation, receivership, or similar
proceeding affecting Company or its assets; or
(g) subject to Guarantor's reservations in the last sentence of this Paragraph 2, any
dispute between Counterparty and the Company in connection with the Guaranteed
Obligations.
The obligations of the Guarantor hereunder are several and not joint with Company or any
other person, and are primary obligations for which the Guarantor is the principal obligor.
There are no conditions precedent to the enforcement of this Guaranty, except as expressly
contained herein. It shall not be necessary for the Counterparty, in order to enforce payment
by the Guarantor under this Guaranty, to exhaust its remedies against Company, any collateral
pledged by Company, any other guarantor, or any other person liable for the payment or
performance of the Guaranteed Obligations. This Guaranty is one of payment and not of
collection and shall apply regardless of whether recovery of all such Guaranteed Obligations
may be discharged, or uncollectible in any bankruptcy, insolvency, reorganization, liquidation,
receivership, or similar proceeding affecting Company or its assets. This Guaranty is a
continuing guaranty and shall apply to all present and future transactions entered into under
the Agreement.
Without limiting Guarantor's own defenses and rights hereunder, Guarantor reserves to itself
all rights, setoffs, counterclaims and other defenses to which Company is or may be entitled to
arising from or out of the Agreements or otherwise, except as limited herein and except for
defenses arising out of any Lack of authority by Company to enter into the Guaranteed
Obligations or the bankruptcy, insolvency, reorganization, liquidation, receivership, or similar
proceeding affecting Company or its assets.
3. Waiver. Guarantor hereby waives:
(a) except for the acceptance required from Counterparty below, notice of acceptance of
this Guaranty, notice of the creation or existence of any of the Guaranteed
Exhibit 8
NCPA — 2007 Power Purchase Agreement Page 2
Obligations and notice of any action by the Counterparty in reliance hereon or in
connection herewith;
(b) notice of the entry into the Agreement between Company and the Counterparty and
notice of any amendments, supplements or modifications thereto; or any waiver of
consent under the Agreement, including waivers of the payment and performance of
the obligations thereunder;
(c) notice of any increase, reduction or rearrangement of Company's obligations under
the Agreement or notice of any extension of time for the payinent of any sums due
and payable to the Counterparty under the Agreement;
(d) except as expressly set forth herein, presentment, demand for payment, notice of
dishonor or nonpayment, protest and notice of protest or any other notice of any
other kind with respect to the Guaranteed Obligations; and
(e) any requirement that suit be brought against, or any other action by the Counterparty
be taken against, or any notice of default or other notice be given to, or any demand
be made on, Company or any other person, or that any other action be taken or not
taken as a condition to the Guarantor's liability for the Guaranteed Obligations under
this Guaranty or as a condition to the enforcement of this Guaranty against the
Guarantor.
4. Subrogation. The Guarantor shall be subrogated to all rights of the Counterparty against
Company in respect of any amounts paid by the Guarantor pursuant to the Guaranty, provided
that the Guarantor waives any rights it may acquire by way of subrogation under this
Guaranty, by any payment made hereunder or otherwise (including, without limitation, any
statutory rights of subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. §509, or
otherwise), reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of the Counterparty against Company or any collateral
which the Counterparty now has or acquires, until all of the Guaranteed Obligations shall have
been irrevocably paid to the Counterparty in full. If (a) the Guarantor shall perform and shall
snake payment to the Counterparty of all or any part of the Guaranteed Obligations and (b) all
the Guaranteed Obligations shall have been paid in full, the Counterparty shall, at the
Guarantor's request, execute and deliver to the Guarantor appropriate documents necessary to
evidence the transfer by subrogation to the Guarantor of any interest in the Guaranteed
Obligations resulting from such payment by the Guarantor.
5. Notices. All demands, notices and other communications provided for hereunder shall, unless
otherwise specifically provided herein, (a:) be in writing addressed to the party receiving the
notice at the address set forth below or at such other address as may be designated by written
notice, from time to time, to the other party, and (b) be effective upon delivery, when mailed
by U.S. mail, registered or certified, return receipt requested, postage prepaid, or personally
delivered. Notices shall be sent to the following addresses:
Exhibit 8
NCPA — 2007 Power Purchase Agreement Page 3
If to Counterparty:
NORTHERN CALIFORNIA POWER AGENCY
180 Cirby Way
Roseville, CA 95678
Attention: Treasurer/Controller
If to Guarantor:
[Insert Guarantor's Address]
6. Demand and Payment. Counterparty is not entitled to make demand upon Guarantor until a
default occurs in payment of any Guaranteed Obligations by Company to Counterparty. Any
demand by the Counterparty for payment hereunder shall be in writing, reference this
Guaranty, reference the Guaranteed Obligations, and signed by a duly authorized
representative of the Counterparty and delivered to the Guarantor pursuant to Paragraph 5
hereof. There are no other requirements of notice, presentment or demand. The Guarantor
shall pay, or cause to be paid, such Guaranteed Obligations within ten (10) business days of
receipt of such demand.
7. No Waiver; Remedies. Except as to applicable statutes of limitation, no failure on the part of
Counterparty to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
8. Term; Termination. This Guaranty shall continue in full force and effect from the Effective
Date until all Guaranteed Obligations arising with respect to the Agreement have been fully
satisfied.
9. Assignment; Successors and Assigns. The Guarantor shall not assign its rights hereunder
without the prior written consent of the Counterparty, and any assignment without such prior
written consent shall be null and void and of no force or effect. This Guaranty shall be
binding upon and inure to the benefit of the each party hereto and their respective successors
and permitted assigns.
10. Amendments, Etc. No amendment of this Guaranty shall be effective unless in writing and
signed by Guarantor and Counterparty. No waiver of any provision of this Guaranty nor
consent to any departure by the Guarantor therefrom shall in any event be effective unless
such waiver shall be in writing and signed by Counterparty. Any such waiver shall be
effective only in the specific instance and for the specific purpose for which it was given.
Exhibit 8
NCPA — 2007 Power Purchase Agreement Page 4
11. Caption. The captions in this Guaranty have been inserted for convenience only and shall be
given no substantive meaning or significance whatsoever in construing the teens and
provisions of this Guaranty.
12. Representation and Warranties.
The Guarantor represents and warrants as follows:
(a) The Guarantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has full corporate power to execute,
deliver and perforin this Guaranty.
(b) The execution, delivery and performance of this Guaranty have been and remain
duly authorized by all necessary corporate action and do not contravene the
Guarantor's constitutional documents or any contractual restriction binding on the
Guarantor or its assets.
(c) This Guaranty constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditor's rights and to general equity principles.
13. Foreign Currency Obligations. Subject to the limitation of Guarantor's total liability set
forth in Paragraph 1 hereof, the Guarantor shall make payment in the currency in which the
Company is required to pay its payment obligations (the "Original Currency"). For the
purposes of calculating Guarantor's total liability hereunder and applying the limitation on
Guarantor's total liability, the value of the payment obligation in the Original Currency shall
be converted to US Dollars by the Guarantor at the rate equal to the applicable spot exchange
rate of a large conunercial bank located in Canada or the United States on the date that
payment is made by the Guarantor.
14. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD OR REFERENCE TO THE CONFLICT OF
LAWS PRINCIPLES OF ANY JURISDICTION. GUARANTOR HEREBY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL
COURTS IN THE EASTERN DISTRICT, CALIFORNIA IN CONNECTION WITH
ANY DISPUTE ARISING UNDER THIS GUARANTY. However, if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
15. Entire Agreement and Termination of Prior Guaranty. This Guaranty constitutes the
entire agreement and understanding between Guarantor and Counterparty with respect to the
Guaranteed Obligations and supersedes and replaces in its entirety any and all guaranties
previously issued by Guarantor to Counterparty with respect to the Guaranteed Obligations, or
any part of them.
Exhibit 8
NCPA — 2007 Power Purchase Agreement Page 5
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and
delivered by its duly authorized representative effective as of this day of , 200[
] ("Effective Date").
[Guarantor's Name]
By:_
Name:
Title:
ACCEPTED AND AGREED TO
THIS DAY OF , 200[
I'
Name:
Title:
Exhibit 8
NCPA — 2007 Power Purchase Agreement Page 6
Exhibit 9
FORM OF LETTER OF CREDIT
[TO BE DETERMINED]
Exhibit 9
NCPA — 2007 Power Purchase Agreement Page I
Exhibit 10
OPERATIONS FORECASTS
and
SCHEDULING PROTOCOLS
1. Annual Operations Forecast
I.I. No later than September 10th of each Contract Year, Seller will provide an Annual
Operations Forecast detailing hourly expected generation and all proposed planned
outages for the next Calendar Year. The Annual Operations Forecast for the first
Calendar Year shall be provided no later than ninety (90) days prior to the Commercial
Operation Date.
1.2. Buyer may request modifications to the Annual Operations Forecast at any time, and
Seller shall use good faith efforts to accommodate Buyer's requested modifications.
1.3. Seller shall not conduct planned outages at times other than as set forth in its Animal
Operations Forecast, unless approved in advance by Seller, which approval shall not be
withheld or delayed unreasonably.
1.4. Seller shall not conduct planned outages during the Peak Months.
2. Short Term Operations Forecasts
2.1. Quarterly Operations Forecast
2.1.1. Twenty (20) days prior to beginning of each quarter, Seller shall provide a
Quarterly Operations Forecast by hour of expected generation and all proposed
plamled outages.
2.1.2. Quarterly Operations Forecast will also include any requested additions or
modifications to planned outages for the next twelve (12) months.
2.1.3. Buyer will approve or require modifications to the proposed Quarterly
Operations Forecast within ten (10) calendar days of receipt of the Quarterly
Operations Forecast.
2.1.4. If required by Buyer, Seller will provide a modified Quarterly Operations
Forecast to Buyer no later than seven (7) calendar days after receipt of required
modifications from Buyer.
2.2. Weekly Update
2.2.1. No later than 14:00 each Wednesday prior to the following week (Sunday
through Saturday), Seller may provide an electronic update, in a format specified
by Buyer, to the Quarterly Operations Forecast for the next seven (7) calendar
Exhibit 10
NCPA — 2007 Power Purchase Agreement Page I
days
2.2.2. The Weekly Update shall include hourly expected generation and all proposed
planned Outages.
3. Outage Detail for Annual and Short Term Operations Forecasts
3.1. Outage information provided by Seller is to include, at a minimum, start and stop time
of Outage, capacity out of service (kWh), equipment out of service, and reason for the
Outage.
4. General Scheduling Protocols
4.1. Daily modifications to forecasts. Unless otherwise mutually agreed, Seller may
make changes to the weekly forecasts by providing such changes to Buyer prior to 08:00
two (2) Business Days before the active scheduling day.
4.1.1. Active scheduling day as detennined by the WECC Prescheduling calendar.
4.1.2. Example: For power that is scheduled for generation or delivery on Thursday,
March 29, changes must be submitted to Buyer no later than 08:00 on Tuesday,
March 27.
4.2. Hourly modifications to active schedules. Unless otherwise mutually agreed, Seller
may make changes to active schedules by providing such changes to Buyer with a
minimum of four (4) hours notice before the active hour to be changed. Changes to
active schedules are limited to two (2) changes per day, excluding forced outages,
unless otherwise agreed to between the parties. One request for a schedule change, of
one hour or multiple hours duration, constitutes one schedule change.
4.2.1. Example: For power that is scheduled for generation or delivery in hour
ending 15:00 (for the period from 14:01 to 15:00), changes must be
submitted to Buyer no later than 10:00.
4.3. At Seller's request, Buyer may modify generation and. load schedules for unforeseen
circumstances in accordance with the above scheduling timeline constraints and Buyer's
Schedule Coordination Agreement.
4.4. In the absence of forecasts and schedules as required by' this Agreement or this Exhibit,
Buyer shall utilize the most current information provided by Seller in the development and
submission of Schedules.
4.5. Daily or Hourly modifications do not modify Monthly Contractual Energy for issues
related to pricing or default.
5. Additional Scheduling Protocols When NCPA is the Scheduling Coordinator
5.1. Seller is to notify NCPA of all planned or forced generation outages to ensure compliance
Exhibit 10
NCPA — 2007 Power Purchase Agreement Page 2
with ISO Outage Coordination and Enforcement Protocols.
5.1.1. Outage information provided by Seller is to include, at a minimum, start and stop
time of Outage, capacity out of service (kW), equipment out of service, and reason
for the Outage.
5.1.2. Planned Outages not included in the Annual Operations Forecast, the Quarterly
Operations Forecast, or the Weekly Update, shall be provided by Seller to Buyer at
least four (4) business days prior to the start of the requested outage.
5.2. Forced Outages
5.2.1. "Forced Outages" are any unplanned reduction in the capability of a generating
facility.
5.2.2. Forced Outages shall be reported by Seller to NCPA within twenty (20) minutes of
such outages.
5.2.3. Notice by Seller to NCPA of a Forced Outage shall include the reason for the outage
(if known), expected duration of the outage, and the capacity reduction.
5.2.4. Within forty-six (46) hours of a Forced Outage, a detailed verbal report shall be
provided by Seller to NCPA specifying the reason for the outage, expected duration
of such outage, capacity reduction, and actions taken to mitigate such outage.
5.3. Cominencement of an Outage — Seller shall not begin any planned Outage without prior
approval of NCPA and the ISO.
5.4. Return to Service —Seller shall notify NCPA immediately whenever a generating unit is
returned to service.
6. When NCPA is not the Scheduling Coordinator
6.1. Seller shall cause its Scheduling Coordinator to provide all required Outage reporting
information directly to the ISO as required by the then existing ISO scheduling protocols.
7. Notices
7.1. All Scheduling notices and Schedules are to be submitted to Buyer by phone, fax or email
to the following persons:
7.1.1. For Day Ahead Schedule changes, inform the Buyer's Pre -Scheduling Contact listed
in Exhibit 13a [Contacts, Bu_yerl.
7.1.2. For Hourly Modifications, inform the Buyer's Schedule Coordinator Contact listed
in Exhibit 13a [Contacts, Buyerl.
7.1.3. For forced Outages, inform the Buyer's Dispatcher Contact listed in Exhibit 13a
Exhibit 10
NCPA — 2007 Power Purchase Agreement Page 3
[Contacts, Buyer].
7.1.4. For planned Outages, inform the Buyer's Dispatcher and Supervisor of Dispatch
Operations Contacts listed in Exhibit 13a (Contacts Bu erl.
NCPA —?007 Power Purchase Agreement
Exhibit 10
Page 4
8. Example Form Of Day -Ahead Schedule:
June [_], 2007
Hour Ended
Expected Capability
1
2
2
2
3
2
4
2
5
2
6
2
7
1
8
1
9
2
10
2
11
2
12
2
13
0
14
0
15
0
16
1
17
2
18
2
19
2
20
2
21
2
22
2
23
2
24
2
Expected Daily Temperatures (in Fahrenheit):
Low
High
Contact Information:
Scheduling Coordinator:
Facility / City:
Exhibit 10
NCPA — 2007 Power Purchase Agreement Page 5
Exhibit 11
FORM OF ATTESTATION
Environmental Attribute Attestation and Bill of Sale
[Name ofSeller] ("Seller") hereby sells, transfers and delivers to Northern California Power Agency ("Buyer") the
Environmental Attributes and Environmental Attributes Reporting Rights associated with the generation of the indicated
energy for delivery to the grid (as such terins are defined in the Long Terni Power Purchase Agreement ("Agreement")
dated [hate], between Buyer and Seller) arising from the generation for delivery to the grid of the energy by the
Generating Facility described below:
Facility name and location: Proieet Narne ( County, California)
EIA ID #: CEC ID #: ISO Meter ID #:
Fuel Type: Capacity (MW): Operational Date:
Dates MWhrs generated Dates MWhrs generated
in the amount of one Environmental Attribute for each megaWatt hour generated; and Seller further attests, warrants
and represents as follows:
i) to the best of its knowledge, the information provided herein is true and correct;
ii) this transfer to Buyer is the one and only sale of the Environmental Attributes and associated
Environmental Attributes Reporting Rights referenced herein;
iii) the Facility generated and delivered to the grid the energy in the amount indicated as undifferentiated
energy; and
(check one)
_ iv) Seller owns the facility.
_ iv) to the best of Seller's knowledge, each of the Environmental Attributes associated with the generation
of the indicated energy for delivery to the grid have been generated and sold by the Facility.
This serves as a bill of sale, transferring from Seller to Buyer all of Seller's right, title and interest in and to the
Environmental Attributes associated with the generation of the energy for delivery to the grid.
Contact Person: Name:
WITNESS MY HAND,
Seller:
By
Title
Date:
Phone:
Exhibit 11
NCPA — 2007 Power Purchase Agreement Page 1
Exhibit 12
PAYMENT / WIRE INSTRUCTIONS
NORTHERN CALIFORNIA POWER AGENCY (Buyer)
WIRE INSTRUCTIONS
The following information is to be used when wiring finds for deposit to Buyer:
U.S. Bank
ABA# 121122676
For Deposit to:
Northern California Power Agency
Acct. No. 1-534-0216-2744
For information purposes, please fax a copy of the wire instructions to Buyer at (916) 781-4255,
Attention Treasurer -Controller.
[Seller's Name] (Seller)
WIRE INSTRUCTIONS
The following infonnation is to be used when wiring funds for deposit to [Seller's Name]:
For Deposit to:
For infonnation purposes, please fax a copy of the wire instructions to [Seller's Name] at [Seller's
phone number], Attention [Seller's relevant contactperson].
Exhibit 12
NCPA — 2007 Power Purchase Agreement Page 1
Exhibit 13a
NCPA (BUYER) CONTACTS
1. Contract Management
Name Phone
Email
Dana Griffith 916-781-4219
dana.griffith@ncpa.com
2. Billing/Invoice Issues
Name Phone
Email
Bob Caracristi 916-781-4224
bob.caracristi@ncpa.com
Mike Daniels 916-781-4205
mike.daniels@icpa.com
3. NCPA Pre -Scheduling
Monthly, weekly and daily generation schedules are
to be provided to NCPA Pre -
Scheduling contacts.
Name Phone
Email
Kevin McMahan 916-786-0123
kevin.mcmahan@ncpa.com
916-781-4227
Norm. Worthington 916-786-0124
norm.worthington@ncpa.com
Don hnamura 916-781-4240
don.imamura@ncpa.com
Ken Goeke 916-781-4290
ken.goeke@ncpa.com
Pre -Scheduling (FAX) 916-781-4239
4. NCPA Schedule Coordination
All Hour Ahead or Real -Time Schedule changes are to be provided to NCPA Scheduling
Coordinator Contacts.
Name Phone
Email
NCPA Scheduling Coordinator 916-781-4237 SC2@ncpa.com
(FAX) 916-781-4226
5. NCPA Dispatch/Outage Coordination
All Planned and/or Forced Outages of Generating Facilities are to be provided to NCPA
Dispatch/Outage Coordination.
Exhibit 13a
NCPA —?007 Power Purchase Agreement Page 1
Name Phone
Dave Wilke 916-781-4225
(Supervisor of Dispatch Operations)
NCPA Dispatch 916-786-3518
NCPA Scheduling Coordinator 916-781-4237
NCPA Dispatch (FAX) 916-781-4226
Exhibit 13a
NCPA — 2007 Power Purchase Agreement Page 2
Email
dave.wilke@ncpa.com
Dispatch@ncpa.com
SC2@ncpa.com
Exhibit 13b
[Name of Seller] (SELLER) CONTACTS
1. Contract Management
Name Phone Email
2. Billing/Invoice Issues
Name Phone Email
3. Pre -Scheduling and Dispatch/Outage Coordination
Annual, Quarterly, Weekly and Daily generation schedules:
Name Phone Email
Pre -Scheduling (FAX)
4. Operator and Real Time Issues
All Planned and/or Forced Outages of generation facilities are to be provided to NCPA
Dispatch/Outage Coordination.
Name Phone Email '
(FAX) 916-781-4226
Exhibit 13b
NCPA — 2007 Power Purchase Agreement Page 1
Exhibit 14
SELLER'S INSURANCE INFORMATION
[TO BE DETERMINED]
March 10, 2008
A PUBLIC AGENCY
NCPA
NORTHERN CALIFORNIA POWER AGENCY 00
City of Ukiah
Attn: City Clerk
300 Seminary Avenue 180 Cirby Way
Ukiah, CA 95482 Roseville, CA 9 5 6 7 8
(916)781-3636
SUBJECT: Amended NCPA Green Power Project Third Phase Agreement www.ncpa.com
Dear Sir or Madam:
Enclosed for your records are copies of the Amended NCPA Green Power Project Third
Phase Agreement participants' signature pages.
If you have any questions please give me a call. Thank you.
Sincerely,
TRISHA HUBBARD
Administrative Assistant
(916) 781-4282 H 781-4252 fax
IN WITNESS WHEREOF, each Participant has executed this Amended
Agreement with the approval of its governing body, and NCPA has authorized
this Amended Agreement in accordance with the authorization of its
Commission.
NORTHERN CALIFORNIA POWER AGENCY BAY AREA RAPID TRANSIT DISTRICT
180 Cirby Way PO Box 12688
Roseville, CA 95678 Oakland, CA 94604-2688
916-781-3636 510-464-6435
916-783-7693 fax 510-464-6118 fax
6,0
Approved as to form:
IhI
By: I 0i
Its: Attorney
TIB'�
ts.
Approved as to form:
,9flc� 6o,�c z
By: ai+w �-
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
53 of 71
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
707-431-3317
707-431-3321 fax
By:
Its:
Approved as to form: f
B
Its: Att rney
CITY OF PALO ALTO
PO Box 10250
Palo Alto, CA 94303-0862
650-329-2273
650-321-0651 fax
CITY OF LOMPOC
PO Box 8001
Lompoc, CA 93438-8001
805-736-1261
805-736-5347 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
PLUMAS SIERRA REC
73233 State Hwy 70
Portola, CA 96122-7069
530-832-4261
530-832-6070 fax
By:
By: Its:
Its:
Approved as to form:
By:
Its: Attorney
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
54 of 71
CITY OF HEALDSBURG CITY OF LOMPOC
401 Grove Street PO Box 8001
Healdsburg, CA 95448 Lompoc, CA 93438-8001
707-431-3317 805-736-1261
707-431-3321 fax 805-736-5347 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
CITY OF PALO ALTO
PO Box 10250
Palo Alto, CA 94303-0862
650-329-2273
650-321-0651 fax
Its: H (kh a_j-e r -
Approved as to form:
By: --
Its: Attorne
By:
Its:
Approved as to form:
By:
Its: Attorney
PLUMAS SIERRA REC
73233 State Hwy 70
Portola, CA 96122-7069
530-832-4261
530-832-6070 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
54 of 71
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
707-431-3317
707-431-3321 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
CITY OF PALO ALTO
PO Box 10250
Palo Alto, CA 94303-0862
650-329-2273
650-321-0651 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
CITY OF LOMPOC
PO Box 8001
Lompoc, CA 93438-8001
805-736-1261
805-736-5347 fax
— 4/j/�ji)
By:
Its: Mayor
Approved as to form:
By: s
Its:A of rney
PLUMAS SIERRA REC
73233 State Hwy 70
Portola, CA 96122-7069
530-832-4261
530-832-6070 fax
By:
Its:
Approved as to form:
By:`
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
54 of 71
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
707-431-3317
707-431-3321 fax
CITY OF LOMPOC
PO Box 8001
Lompoc, CA 93438-8001
805-736-1261
805-736-5347 fax
By:
By: Its:
Its:
Approved as to form:
By:
Ifs: Attorney
CITY OF PALO ALTO
PO Box 10250
Palo Alto, CA 94303-0862
650-329-2273
650-321-0651 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
Approved as to form:
By:
Its: Attorney
PLUMAS SIERRA REC
73233 State Hwy 70
Portola, CA 96122-7069
530-832-4261
530-832-6070 fax
By: r
Its:
lb-oved as to m:
0��,�
By: DENNIS W. DE GU1R r
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
54 of 71
CITY OF SANTA CLARA
1500 Warburton Avenue
Santa Clara, CA 95050
408-615-2250
408-241-6771 fax
IQ
-1e n i-��r Spa ray, no
'n fS..'
MCI nager
Approvedas to form:
By: k l ey,Q L e, chimer
Its: Attorney
CITY OF LODI
221 West Pine St.
Lodi, CA 95240
209-333-6702
209-333-6807 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
CITY OF UKIAH
300 Seminary Avenue
Ukiah, CA 95482
707-463-6200
707-463-6204 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
55 of 71
CITY OF SANTA CLARA
1500 Warburton Avenue
Santa Clara, CA 95050
408-615-2250
408-241-6771 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
CITY OF LODI
221 West Pine St.
Lodi, CA 95240
209-333-6702
209-333-6807 fax
j
By: Bl it ng
Its: City Manager
dastQf
By: D. Stephen Schwabauer
Its: Attorney
CITY OF UKIAH
300 Seminary Avenue
Ukiah, CA 95482
707-463-6200
707-463-6204 fax
By:
Its:
Approved as to form:
By:
Its: Attorney
i
est•
a i Johl, City Clerk
AMENDED THIRD PHASE AGREEMENT - NCPA GREEN POWER POOL
55 of 71