HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2022-01-19 COU No.2122-167
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM
AGREEMENT
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COU No. 2122-167
SUPPORT SERVICES PROGRAM AGREEMENT
PREAMBLE
This Support Services Program Agreement is entered into as of the day of
2016 ("the Effective Date") by and between the Northern California Power
Agency,a jo' t powers agency of the State of California ("NCPA") and those members of
NCPA who execute this Agreement (each a "Signatory Member" and together the"Signatory
Members"). NCPA and each Signatory Member are referred to individually as a "Party" and
together as the"Parties."
RECITALS
A. NCPA and its Members desire to establish a support services program by which
NCPA may offer to provide certain support services to the Members from time to time. These
support services may include, but are not limited to, joint purchasing,engineering services,
transmission and distribution planning,power marketing and analysis, employee training,
employment and human relations assistance,customer services and billing, metering and data
management,power plant operations and other farms of assistance and professional services
relating to the operation of a publicly owned electric utility,as related to either the generation,
transmission or distribution of electricity or the wholesale or retail operation of such a utility, all
within the scope of the NCPA Joint Powers Agreement("Support Services'}.
B. Particular Support Services will from time to time be offered by NCPA to those
Signatory Members who choose to accept and pay for such particular Support Services. Such
offers will be without any liability on the part of Members of NCPA who are not Signatory
Members nor any liability on the part of Signatory Members who do not choose to become a
Participating Member with respect to the particular Support Services, A Signatory Member
choosing to accept and pay for a particular Support Service will become a "Participating
Member" with respect to that Support Service. A Signatory Member is not required to accept
any particular Support Services by reason of being a Signatory Member.
C. Support Services shall be broadly construed. Provided,however:
(1) Support Services does not include the procurement of either energy(or the attributes
of energy, such as renewable energy credits) which is provided through the Market Purchase
Program Agreement, Single Member Services Agreements and the Pooling Agreement.
(2) Support Services does not include procurement of natural gas which is provided
through the Natural Gas Program Agreement.
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(3) Support Services does not include services provided by NCPA pursuant to third
phase agreements relating to generation projects or other project agreements previously or
subsequently entered into by NCPA and certain of its Members.
(4) Support Services does not include any on-going services which are to be provided by
NCPA to its Members through program agreements. For example, Support Services does not
include any legislative and regulatory services provided through the Legislative and Regulatory
Affairs Program Agreement.
D. The Signatory Members desire that NCPA negotiate and enter into agreements with
third parties to provide the Support Services for the benefit of Participating Members. This
Agreement does not authorize NCPA to directly provide Support Services utilizing NCPA's
own staff, except in limited circumstances. Such direct provision of Support Services may be
provided to one or more Members through either a Single Member Service Agreement or a
Professional Services/Operating Agreement as deemed appropriate by NCPA.
E. Each Support Service will be offered by NCPA to all the Signatory Members. Those
Signatory Members wishing to accept the offer with respect to a particular Support Service will
execute a written confirmation for that Support Service (a "Confirmation") and thereby become
a Participating Member with respect to such Support Service. The Participating Members
executing a particular Confirmation will pay NCPA the cost of providing the Support Services
offered by such Confirmation as detailed in the Confirmation including the cost of developing
the Confirmation; Signatory Members not executing a particular Confirmation will have no
obligation with respect to the Support Services provided pursuant to that Confirmation.
F. Each Signatory Member,in executing this Agreement,will provide the identity of the
Designated Representatives authorized to execute Confirmations on its behalf, and agrees that,
subject to such not to exceed dollar limitations as are set forth in its signature page to this
Agreement (as such limitations may be amended), any Confirmations executed by such
Designated Representatives are binding upon the Signatory Member without further approval by
the Signatory Member's Governing Board.
G. NCPA desires to provide, and the Signatory Members desire to secure, Support
Services under this Agreement in a manner that balances their operational and economic
interests and the interests of other NCPA Members with the ongoing financial viability and
professional responsibilities of NCPA. Accordingly, Signatory Members desire to secure
Support Services under this Agreement by accepting a limited insurance based recourse against
NCPA,with the option of procuring additional insurance at Signatory Members' sole expense,
thereby ensuring that NCPA will substantially limit its risk for the provision of such Support
Services which,in turn, allocates risks back to the Signatory Members in the event NCPA is not
adequately insured.
NOW, THEREFORE, the Parties agree as follows:
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Section 1. Definitions and Interpretation.
1.1 Definitions. Whenever used in this Agreement (including in the preamble and
recitals hereto), the following terms shall have the means ascribed to them in this section:
"Agreement" means this NCPA Support Services Program Agreement,including all
exhibits or schedules attached hereto, as the same may be amended from time to time in
accordance with the terms and conditions hereof.
"All Resources Bill" means the single, combined monthly invoice from NCPA to a
Participating Member with respect to all NCPA programs and projects.
"Annual Budget" means the budget for the Fiscal Year adopted by the Commission, as it
may be amended from time to time.
"Associate Member" means the Plumas-Sierra Rural Electric Cooperative, an associate
member of NCPA.
"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., Pacific Time.
"Commission" means the NCPA Commission.
"Confirmation" has the meaning set forth in the recitals hereto.
"Costs" means both (i) the cost billed to NCPA by a third party provider of Support
Services, plus (h) the direct or indirect costs incurred by NCPA in obtaining such
Support Services from the third party provider,including development of the
Confirmation, administration of any agreements with the third party provider and any
over-head costs incurred. Overhead costs shall be determined by NCPA on a
Confirmation—by- Confirmation basis. "Costs" shall also include any NCPA direct or
indirect costs, including salary,incurred in those limited instances where NCPA directly
provides the Support Services under a Confirmation.
"Constitutive Documents" means,with respect to NCPA, the Joint Powers Agreement
and any resolutions or bylaws adopted thereunder, and with respect to each Signatory
Member, the California Government Code and other statutory provisions applicable to
such Signatory Member and any applicable agreements, charters, contracts, or other
documents concerning the formation, operation or decision making of such Signatory
Member, including, if applicable,its City Charter, and any codes, ordinances, bylaws, and
resolutions adopted by such Signatory Member's Governing Body.
"Defaulting Party" has the meaning set forth in Section 12.1.
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"Designated Representatives" means,with respect to NCPA, both its General Manager,
and its General Counsel, acting jointly, and with respect to each Signatory Member
means both its Utility Director (or an employee or official other than the Utility Director
designated by resolution of the Signatory Member's Governing Board) and its City
Attorney or General Counsel, acting jointly.
"Effective Date" has the meaning set forth in the preamble hereof.
"Electric System" means,with respect to each Signatory Member except the San
Francisco Bay Area Rapid Transit District (`KART"), all properties and assets, real and
personal, tangible and intangible, of the Signatory Member now or hereafter existing,
used or pertaining to the generation for resale, transmission, transformation, distribution
or sale of electric capacity and energy, or the utilization of such,including all additions,
extensions, expansions,improvements and betterments thereto and equipment thereof;
provided, however, that to the extent the Signatory Member is not the sole owner of an
asset or property or to the extent that an asset or property is used in part for the above
described purposes, only the Signatory Member's ownership interest in such asset or
property or only the part of the asset or property used for electric purposes shall be
considered to be part of its Electric System. "Electric System" means,with respect to
BART, all properties and assets, real and personal, tangible and intangible, of BART
now or hereafter existing,used or pertaining to the operation or maintenance of its
transportation system, including all additions, extensions, expansions,improvements and
betterments thereto and equipment thereof; provided, however, that to the extent BART
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 BART's ownership interest in such
asset or property or only the part of the asset or property used for transportation system
purposes shall be considered to be part of its Electric System.
"Event of Default" shall have the meaning provided in Section 12.1.
"Fiscal Year" means the NCPA fiscal year; currently the twelve month period beginning
July 1 and ending on the next-following June 30.
"General Manager" means the General Manager of NCPA.
"Good Utility Practice" means any of the practices, methods and acts engaged in or
approved by a significant portion of the electric utility industry during the relevant time
period, or any of the practices, methods and acts which,in the exercise of reasonable
judgment in light of the facts known at the time the decision was made, could have been
expected to accomplish the desired result of the lowest reasonable cost consistent with
good business practices, reliability, safety and expedition. Good Utility Practice is not
intended to be limited to the optimum practice, method or act to the exclusion of all
others,but rather to be acceptable practices, methods, or acts generally accepted in the
region and consistently adhered to by the electric utility industry.
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"Governing Board" means with respect to NCPA its Commission, and with respect to
each Signatory Member means its city council, board of directors, board of port
commissioners, or other duly constituted legislative body having approval authority for
contracting and purchasing under the terms of the Constitutive Documents of the
Signatory Member.
"Joint Powers Agreement" or "JPA" means that certain Amended and Restated
Northern California Power Agency Joint Power Agreement dated as of January 1, 2008,
as the same may be amended from time to time.
"Member" means any member of NCPA or any Associate Member of NCPA.
"NCPA" has the meaning set forth in the preamble of this Agreement.
"NCPA Procurement Policies" means those policies for the procurement of goods and
services adopted by the Commission, as the same may be amended from time to time.
"NERC" means the North American Electric Reliability Corporation, or its successor in
interest as the national electric reliability organization designated by the Federal Energy
Regulatory Commission.
"Participating Member" has the meaning set forth in the recitals of this Agreement.
"Party" or "Parties" has the meaning set forth in the preamble of this Agreement.
"Revenues" means,with respect to each Signatory Member with the exception of the
San Francisco Bay Area Rapid Transit District ("BART"), all income, rents, rates, fees,
charges, and other moneys derived by the Signatory Member 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
Signatory Member directly or indirectly from the sale,lease or other disposition of all or
a part of the Electric System, but the term Revenues shall not include (i) customers'
deposits or any other deposits subject to refund until such deposits have become the
property of the Signatory Member, or (ii) contributions from customers for the payment
of costs of construction of facilities to serve them. In regard to BART, "Revenues"
means all income, rents, rates, fees, charges,grants, fares or tariffs, subventions and
other moneys derived by the BART from its operation including,without limiting the
generality of the foregoing, (i) the earnings on and income derived from the investment
of such income, rents, rates, fees, charges grants, fares or tariffs, subventions or other
moneys, and (ii) the proceeds derived by the BART directly or indirectly from the sale,
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lease or other disposition of all or a part of its assets, but the term Revenues shall not
include any moneys derived from sources the use of which is limited by law to
expenditures other than BART operating expenses.
"Security Account" means an account established by NCPA and funded by Participating
Members in accordance with Section 7.2, the funds of which are available for use by
NCPA with respect to a particular Confirmation in accordance with the terms and
conditions herein and those of the particular Confirmation.
"Signatory Member" has the meaning set forth in the preamble hereto.
"Support Services" has the meaning set forth in the recitals of this Agreement .
"Uncontrollable Force" means any act of God,labor disturbance, act of the public
enemy,war,insurrection, riot, fire, storm, flood, earthquake, explosion, any curtailment,
order, regulation or restriction imposed by governmental, military or lawfully established
civilian authorities or any other cause beyond the reasonable control of the Party
claiming Uncontrollable Force which could not be avoided through the exercise of Good
Utility Practice.
"Utility Director" means,with respect to each Signatory Member with the exception of
the San Francisco Bay Area Rapid Transit District ("BART"), the person having
administrative charge of and responsibility for the operation and maintenance of the
Electric System of a Signatory Member. In regards to BART, "Utility Director" means
the person having administrative charge of and responsibility for the procurement of
electrical energy for the operation of the BART transportation system.
1.2 Interpretation of Agreement. As used in this Agreement (including the preamble
and recitals hereto), unless in any such case the context requires otherwise:
1.2.1 The terms "herein," "hereto," "herewith" and "hereof' are references to
this Agreement taken as a whole and not to any particular provision; the term "include,"
"includes" or "including" shall mean "including, for example and without limitation;" and
references to a "Section," "subsection," "clause," or "Exhibit" shall mean a Section, subsection,
clause or Exhibit of this Agreement, as the case may be.
1.2.2 All references to a given agreement,instrument or other document shall be
a reference to that agreement,instrument or other document as modified, amended,
supplemented and restated through the date as of which such reference is made, and reference
to a law, regulation or ordinance includes any amendment or modification thereof.
1.2.3 A reference to a "person" includes any individual,partnership, firm,
company, corporation, joint venture, trust, association, government, organization or other entity,
in each case whether or not having a separate legal personality and includes its successors and
permitted assigns.
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1.2.4 The singular shall include the plural and the masculine shall include the
feminine, and vice versa.
1.2.5 All references to a "day" shall refer to a calendar day, unless specified as a
Business Day.
Section 2. Effectiveness of Agreement; Signature Authority
2.1 Effective Date as to Signatory Member. Following the approval of this Agreement
by the Commission, any Member may become a Signatory Member by providing an executed
counterpart of this Agreement to NCPA. This Agreement shall become effective as to a given
Signatory Member upon the later of the Effective Date and the date on which an executed copy
of this Agreement is provided to NCPA. NCPA shall provide a copy of each executed signature
page of a Signatory Member to all other Signatory Members.
2.2 Form of Signature Page;Amendment of Designated Representatives and Not to
Exceed Dollar Authority. Each Signatory Member signature page shall be in the form attached
hereto as Exhibit "A." Each signature page shall identify the initial Designated Representatives
of the Signatory Member and the monetary not to exceed authority for any individual
Confirmations for that Signatory Member.
2.2.1 Any Signatory Member may amend its not to exceed authority at any time
(either increasing or decreasing such authorities), by providing thirty (30) days written notice of
such change to NCPA accompanied by a resolution of the Governing Board of the Signatory
Member approving such change in the not to exceed authorities.
2.22 Signatory Members shall provide written notice to NCPA upon a change
in the identity of either of its Designated Representatives.
Section 3. Support Services Procurement.
3.1 Offers to Procure Support Services. NCPA may, from time to time in its sole
discretion, offer to procure one or more Support Services for the Signatory Members. Signatory
Members desiring to accept such offer with respect to a particular Support Service shall execute
a Confirmation prepared by NCPA for that Support Service and thereby become a Participating
Member with respect to such Confirmation and Support Service. Confirmations shall be in
substantially the form attached hereto as Exhibit `B," and as provided in Section 5. Each such
Confirmation shall indicate that the particular Support Service will be accomplished by NCPA
contracting with a named third party to provide the Support Service,which contract shall
thereafter be entered into by NCPA in accordance with the NCPA Procurement Policies.
NCPA's Designated Representatives shall have the authority to execute Confirmations without
the further approval of the Commission where the underlying contract with a third party is
within the contracting authority of the General Manager as established by the NCPA
Procurement Policies. Provided, however, that NCPA may in its sole discretion choose to self-
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provide the Support Services, rather than contracting with a third party,where it is providing
training, human resources assistance, assistance with NERC or other regulatory compliance, or
assistance in the form of student interns to the Signatory Members.
3.2 NCPA Procurement of Support Services. NCPA agrees, upon receipt of a
Confirmation executed by the Designated Representatives of one (1) or more Participating
Members, to procure the Support Service specified in such Confirmation on behalf of the
Participating Member(s). Provided, however, that NCPA may in its discretion decline to
provide Support Services unless the number of Participating Members and the extent of
participation is acceptable to NCPA.
3.3 NCPA Payment of Costs. NCPA shall pay all Costs incurred in providing Support
Services under a particular Confirmation using funds: (a) received from Participating Members
during the normal course of monthly billing of Members,with the Costs of each Confirmation
itemized on the NCPA All Resources Bill; or (b) as necessary from Security Account funds for
that Confirmation,if any, paid to NCPA in accordance with Section 7.2; or (c) such other
sources and methods as may be agreed upon in writing by the Parties from time to time or as
specified in a particular Confirmation.
Section 4. No Purchase of Energy or Natural Gas; Other Exclusions. Support Services do
not include the purchase of natural gas, energy, or any attributes of energy including capacity,
reliability or environmental attributes (such as credits, benefits, emissions reductions, offsets,
and allowances, however titled). This Agreement and associated Confirmations shall not be
utilized for the procurement of natural gas, energy, or any attributes of energy. NCPA shall
continue to buy and sell natural gas and energy, or its attributes, on behalf of its Members
through other existing agreements,including the Gas Purchase Program Agreement, the Market
Purchase Program Agreement, Single Member Service Agreements and the Pooling Agreement.
Support Services do not include those items referred to in Recital C.
Section 5. Format of Confirmations; Dollar Not to Exceed Limitations;Amendments.
5.1 Format of Confirmations. Confirmations shall generally be in substantially the form
provided by Exhibit `B. Confirmations shall define the scope of the particular Support Service
to be provided, the means by which NCPA will procure such Support Service, and any other
terms on which such Support Services shall be provided, to the extent such terms are not
defined by this Agreement.
5.1. The Confirmation shall identify the third party who will provide the Support
Services and incorporate by reference the agreement between the third party and NCPA.
5.1.2 Confirmations shall not amend the terms of this Agreement. In the event
NCPA and the Participating Members desire to include a provision in a Confirmation
inconsistent with this Agreement, such Confirmation shall be effective only if approved by the
Governing Boards of all Participating Members and the Commission.
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5.2 Dollar Not to Exceed Limitations of Confirmations. Each Confirmation shall
include a "not to exceed" amount or dollar limitation, broken down by Participating Member,
indicating the maximum amount that each Participating Member shall be required to pay for the
Support Services provided under the Confirmation. The "not to exceed" shall not relieve a
Participating Member of its obligations under this Agreement,including Sections 7 and 11
hereof.
5.2.1 Except as provided in sections 7.4 (relating to use of Security Accounts)
and 7.5 (relating to emergency additions to Security Accounts), no Participating Member shall be
required to pay for Costs incurred in excess of its stated limitation on a given Confirmation,
unless agreed to by the Participating Members.
5.2.2 Any Participating Member may amend its "not to exceed" amount or dollar
limitation for a given Confirmation by providing written notice of the change to NCPA
executed by its Designated Representatives.
5.3 Amendment of Confirmations. A Confirmation may be amended with respect to all
Participating Members only in writing executed by the signatures of the Designated
Representatives of NCPA and the Participating Members. Amendments relating to the "not to
exceed" amount or dollar limitation of one or more Participating Members shall be
accomplished as provided in subsection 5.2.2.
Section 6. Participating Member Authority to Execute Confirmations. Each
Participating Member acknowledges and agrees to be bound by their respective Designated
Representatives' execution of Confirmations without further approval by the Governing Board
of the Participating Member or other approvals, and agrees that such execution is in accordance
with its Constitutive Documents.
Section 7. Payment Obligations; Confirmation Security Account; Invoicing.
7.1 Payment Obligations. Each Signatory Member agrees to pay NCPA each month its
share of Costs specific to each Confirmation for which the Signatory Member is a Participating
Member.
Such amounts shall be included by NCPA on the monthly All Resources Bill for each
Signatory Member, except to the extent that a given Confirmation provides for a different
invoicing mechanism and NCPA agrees thereto.
7.2 Confirmation Security Accounts.
7.2.1 Upon issuance of any Confirmation, NCPA shall determine
whether or not a Participating Member deposit to a Security Account for that
Confirmation will be required in order to provide the Support Service in
question. If so, the amount of the required Security Account deposit shall be
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noted on the Confirmation and the Participating Member or Members shall make
the required deposits prior to provision of any Support Services pursuant to that
Confirmation. Within ten days of NCPA's notice of the amount of the Security
Account deposit, the affected Participating Member shall have the option of
withdrawing its Confirmation and not receiving the Support Service requested
therein.
7.2.2 Periodically, and at least quarterly,NCPA shall review and revise its
determination of the security necessary for a particular Confirmation and whether each
Participating Member has a sufficient balance in the Security Account for that Confirmation.
To the extent that any Participating Member's balance in the Security Account for the
Confirmation is greater than one hundred and ten percent (110%) of the amount required,
NCPA shall credit the difference between the balance and the amount required as soon as
practicable to the Participating Member's next following All Resource Bill. To the extent that
any Participating Member's balance in the Security Account for the Confirmation is less than
ninety percent (901/o) of the amount required, NCPA shall add the difference between the
balance and the ninety percent (90%) as soon as practicable to the Participating Member's next
following All Resource Bill, or as necessary, to a special invoice to the Participating Member.
7.3 Security Account in Addition to Other Security Accounts. Any required deposits
into a Security Account for a Confirmation pursuant to this Agreement shall be separate from,
and in addition to, any security accounts maintained pursuant to other agreements between
NCPA and its Members,including but not limited to the Market Purchase Program Agreement,
Single Member Services Agreement and the Gas Purchase Program Agreement. Each Security
Account for a Confirmation shall be separate from, and in addition to, any Security Account for
a different Confirmation.
7.4 Use of Security Account Funds. Security Account funds shall be segregated by
Confirmation. NCPA may use any and all funds deposited into the Security Account for a
particular Confirmation to pay any Costs it incurs in providing Support Services pursuant to that
Confirmation,including making payments to counterparties under any agreement, or for
termination payments, requests for assurances by third parties, credit support, payment of claims
and related expenses under a Confirmation. Such use shall be without regard to any individual
Participating Member's balance in the Security Account or its proportionate share of
Confirmation Costs and irrespective of whether NCPA has issued an All Resources Bill or
invoice for such Costs to the Participating Members or whether a Participating Member has
made timely payments of All Resources Bills or invoices.
If funds deposited into the Security Account are used by NCPA to pay any Costs it
incurs with respect to a particular Confirmation, NCPA will maintain a detailed accounting of
each Participating Member's shares of funds withdrawn from the Security Account or letter of
credit, and upon the collection of all or a part of such withdrawn funds from the applicable
Participating Member or Members, NCPA will credit back to each Participating Member the
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funds collected in proportion to such non-defaulting Participating Member's share of funds
withdrawn from the Security Account.
Funds deposited into a Security Account for a particular Confirmation shall not be used
to pay the Costs incurred pursuant to a different Confirmation, nor shall any funds in other
security accounts maintained by NCPA and not established pursuant to this Agreement be used.
7.5. Emergency Additions. In the event that the funds are withdrawn pursuant to
Section 7.4 of this Agreement, or if the Security Account for a particular Confirmation is
insufficient to allow payment of an invoice, demand, request for further assurances or claims by
third parties with respect to a particular Confirmation,NCPA shall notify all Participating
Members for that Confirmation and then prepare and send a special or emergency assessment to
the Participating Members. Each Participating Member shall pay to NCPA such assessment
when and if assessed by NCPA within ten (10) days of the invoice date of the assessment.
NCPA shall maintain a detailed accounting of each Participating Member's deposits into and
shares of withdrawals from the Security Account for the particular Confirmation.
7.6 Interest on Security Accounts. Monies on deposit in the Security Accounts created
pursuant to this Agreement shall be invested by NCPA in accordance with the investment policy
adopted by the NCPA Commission. Interest earned (or losses sustained) on the Security
Accounts shall be proportionately credited to the Participating Members in accordance with
each Participating Member's Security Account obligations.
7.7 Return of Funds in Security Accounts. Upon the completion of the provision of
Support Services under a particular Confirmation, or upon a permitted withdrawal of a
Participating Member from a Confirmation,NCPA shall return the share of affected Security
Account funds within ninety (90) days. Provided, however, that NCPA shall,in its sole
discretion, as determined by the General Manager, estimate the then outstanding liabilities of the
Participating Members including any estimated contingent liabilities and shall retain all such
funds until all such liabilities have been fully paid or otherwise satisfied in full.
Section 8. Invoicing.
8.1 Invoices. As part of the All Resources Bill or by separate special invoice, as required
in the circumstances,NCPA will issue an invoice to each Signatory Member for the fixed
Support Services Program Agreement Costs as provided in Section 7.1 and its proportionate
share of the Costs of any Confirmation as to which it is a Participating Member.
8.2 Payment of Invoices. All non-emergency invoices delivered by NCPA in the normal
course of billing hereunder (including the All Resources Bill) are due and payable on the date
indicated on such invoice, but in any event no later than thirty (30) days following receipt
thereof; 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 Participating Member's share of an
applicable Security Account to the payment of all or any portion of an invoice issued to such
Participating Member ,provided that application of such funds from a Security Account relating
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to a particular Confirmation shall not relieve the Participating Member from any late payment
charges pursuant to Section 8.3. 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 Participating Member,NCPA shall deposit the relevant portion of the payment
into the Security Account and credit such deposit to such Participating Member. Emergency
invoices shall be due as indicated in Section 7.5.
8.3 Late Payments. Any amount due and not timely paid by a Signatory Member shall
bear interest computed on a daily basis until paid at the lesser of(i) the per annum prime rate (or
reference rate) of the Bank of America NT&SA then in effect,plus two percent (20/6),
or (ii) the maximum rate permitted by law.
Section 9. Settlement Data and Examination of Books and Records; Signatory Member
Covenants.
9.1 Settlement Data. NCPA will make settlement data available to the Participating
Members. Procedures and formats for the provision of such data will be as established by the
NCPA Commission from time to time.
9.2 Records.
9.2.1 NCPA Books and Records. NCPA shall maintain any and all ledgers,
books of account,invoices,vouchers, cancelled checks and other records or documents
evidencing or relating to charges for the Support Services or expenditures or disbursements to
the Signatory Members for a minimum of three (3) years, or for any longer period required by
law, from the date of their payment.
9.2.2 Examination of Books and Records. Any Signatory Member shall have the
right to examine the books and records created and maintained by NCPA pursuant to this
Agreement,including but not limited to (a) those required to be kept by Section 9.2.1 and (b)
those required by NCPA to be kept by any third party provider of Support Services, at any
reasonable, mutually agreed upon time.
9.2.3 Ownership of Records. Except as otherwise provided in a particular
Confirmation, all reports, reports, data, maps, models, charts, studies, surveys, photographs,
memoranda, plans, studies, specifications, records, files, or any other documents or materials,in
electronic or any other form, that NCPA prepares or obtains for a Participating Member
pursuant to a Confirmation and that relate to the matters covered hereunder shall be the
property of the Participating Member. NCPA hereby agrees to deliver those documents to the
Participating Member upon termination of the Confirmation to which they refer. It is
understood and agreed that the documents and other materials,including but not limited to
those described above,prepared pursuant to this Agreement are prepared specifically for the
Participating Member and are not necessarily suitable for any future or other use. Participating
Member and NCPA agree that, until final approval by Participating Member, all data, plans,
specifications, reports and other documents are confidential and will not be released to third
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parties without prior written consent of the parties to a Confirmation, except as may otherwise
be required by applicable law.
9.3 Signatory Member Covenants. Each Signatory Member covenants and
agrees: (i) to continue to pay or advance to NCPA, from its Revenues all payments required
under this Agreement; (ii) to make payments to NCPA under this Agreement where NCPA has
incurred Costs or is obligated to pay a third party with respect to a Confirmation whether or
not there is an interruption in,interference with, or reduction or suspension of Support Services
provided under this Agreement, such payments not being subject to any reduction,whether by
offset or otherwise, and regardless of whether any dispute exists provided such interruption,
interference or reduction in Support Services is caused by forces constituting an Act of God and
not reasonably contemplated by the Parties; and (iii) to operate its Electric System and the
business in connection therewith in an efficient manner and at reasonable cost and to maintain
its Electric System in good repair,working order, and condition.
Section 10. Administration of Agreement.
10.1 General. The NCPA Commission has sole overall responsibility and authority for
the administration of this Agreement. Any acts, decisions or approvals taken, made or sought
by NCPA under this Agreement shall be taken, made or sought, as applicable,in accordance
with NCPA's Constitutive Documents.
10.2 Withdrawal of Signatory Member. A Signatory Member may voluntarily withdraw
from this Agreement at any time by providing two (2) year's advance written notice to NCPA
and the other Signatory Members. A withdrawing Signatory Member shall reimburse NCPA for
any and all Costs resulting from the withdrawal including the legal, accounting and
administrative costs of winding up and assuring the complete satisfaction and discharge of the
withdrawing Signatory Member's obligations. A withdrawing Signatory Member will continue to
be liable for any Costs or on-going obligations relating to a Confirmation as to which that
withdrawing Signatory Member is a Participating Member, and withdrawal from any given
Confirmation shall be permitted only in accordance with the terms of the particular
Confirmation. A withdrawing Signatory Member shall not be liable for Costs under a
Confirmation, subsequent to the effective date of the Signatory Member's withdrawal and if
unrelated to Support Services provided under the Confirmation to that withdrawing Signatory
Member.
10.3 Termination of Agreement by NCPA. NCPA may terminate this Agreement at any
time upon six (6) month's written notice to the Signatory Members. Any such termination shall
not affect any on-going obligations of NCPA relating to Confirmations then in effect, provided
that no additional Confirmations shall be offered to the Signatory Members by NCPA after the
six month notice of termination has been provided to them by NCPA.
10.4 Termination by Signatory Members. Upon the occurrence of an Event of Default
where NCPA is the Defaulting Party, and following the applicable cure periods, one or more
Signatory Members may,without limiting their other rights or remedies available under this
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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 Signatory Members may have against NCPA,
terminate this Agreement in whole, subject to the provisions of Section 12.6.4. Termination by
one Signatory Member shall not affect the validity of the Agreement as to other Signatory
Members.
Section 11. Insurance, Defense and Indemnity Obligations
11.1 Limitation of NCPA Liability. Except as otherwise provided in this Section 11,
NCPA shall not at any time be liable for any injury or damage occurring to a Participating
Member or any other person or property from any cause whatsoever arising out of this
Agreement or any Confirmation entered into pursuant to this Agreement.
11.2 Limited Right of Recourse. The provisions of Section 11.1 shall not apply where
the injury or damage is to a Participating Member and is caused by the active negligence of
NCPA or of any employee, agent or contractor of NCPA, provided, however, that any liability
under this subsection is limited to the extent of the actual coverage and coverage limits of the
insurance policies described in this Section 11.
11.2.1 Reimbursement of NCPA Deductibles. Notwithstanding Section 11.2
above, the applicable Participating Member agrees to reimburse NCPA,in a timely manner, for
all deductibles or and/or self-insured retentions payable by NCPA for any claim, liability, or
damage arising out of this Agreement or any Confirmation entered into pursuant to this
Agreement.
11.3 Indemnity Obligation of Participating Members. Except as provided in Section
11.2 above, each Participating Member as to the particular Confirmation involved shall, at its
sole cost and expense,indemnify and hold harmless NCPA, and its Members, and their
respective officers, agents and employees ("Indemnitees") from and against any and all liability,
obligation, damages,penalties, claims, liens, costs, charges, losses and expenses (including
reasonable attorneys' fees),which may be imposed upon,incurred by or be asserted against the
Indemnitees arising out of this Agreement or any Confirmation entered into pursuant to this
Agreement.
11.4 Defense Obligation of Participating Members. In the event any action or
proceeding shall be brought against the Indemnitees by reason of any matter for which the
Indemnitees are indemnified hereunder, the Participating Members as to the Confirmation
involved shall, upon reasonable prior written notice from any of the Indemnitees, at
Participating Member's sole cost and expense, resist and defend the same with legal counsel
mutually selected by Indemnitee and the Participating Member or Members, unless mutual
selection of counsel is expressly prohibited by an applicable insurance policy;provided however,
that neither Indemnitee nor Participating Member shall admit liability in any such matter or on
behalf of the other without express written consent,which consent shall not be unreasonably
withheld or delayed, nor enter into any compromise or settlement of any claim for which
Indemnitees are indemnified hereunder without prior express written consent. The Participating
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Member's duty to defend shall begin upon receipt of a written notice identifying with specificity
the allegations that give rise to this duty to defend.
11.5. Notice of Claims Required. The Parties shall give each other prompt written
notice of the making of any claim or the commencement of any action, suit or other proceeding
covered by the provisions of this Section 11.
11.6 NCPA Obligation to Maintain Insurance. During the term of the Agreement and
prior to providing Support Services under any Confirmation issued pursuant to this Agreement,
NCPA shall maintain, or cause to be maintained, in full force and effect, and at its sole cost and
expense, the types and limits of insurance as are annually approved by the governing
Commission of NCPA.
11.7 Participating Member Insurance. The Signatory Members acknowledge that there
are significant limits on NCPA's liability under the this section 11 and that upon becoming a
Participating Member as to one or more Confirmations, the Participating Member may wish to
purchase additional insurance of its own to cover the additional risks and the potential additional
liabilities it is assuming under this Agreement and Confirmations entered into pursuant to this
Agreement. Each Participating Member will,with respect to any additional insurance it obtains
or which is otherwise available to it, cause its insurers to issue an endorsement providing a
waiver of subrogation rights as to the Indemnitees.
11.8 Survival of Obligations. The defense and indemnity obligations of this Section 11
shall survive the termination of this Agreement.
Section 12. Default and Remedies.
12.1 Events of Default. An Event of Default under this Agreement shall exist upon the
occurrence of any one or more of the following by a Party in default of its obligations hereunder
("Defaulting Party"):
(i) if any Signatory Member or Participating Member fails to make any payment due
hereunder or to provide assurances as required of NCPA under a Confirmation when
due hereunder within two (2) Business Days after receipt of notice given by NCPA of
such non-payment; or
(ii) the failure of a Signatory Member to perform any other covenant or obligation under
this Agreement where such failure is not cured within ten (10) calendar days following
receipt of a notice from NCPA demanding cure (provided that this shall not apply to any
failure to make payments (which is covered by Section 12.1 (i) ); or
(iii) if any representation or warranty of a Signatory Member material to the transactions
contemplated hereby shall prove to have been incorrect in any material respect when
made and the Signatory Member does not cure the facts underlying such incorrect
representation or warranty so that the representation or warranty becomes true and
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correct within ten (10) calendar days of the date of receipt of notice from any other Party
demanding cure; or
(iv) if a Signatory Member 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 Agreement
following a ten (10) calendar day notice to cure by any non-defaulting Signatory
Member.
12.2 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 12.1 above, as may be
applicable, after written notice has been sent to the Defaulting Party from NCPA or a non-
defaulting Signatory Member specifying the default and demanding that the same be remedied;
provided, however, that the failure of a Party to provide such notice shall not be deemed a
waiver of such default.
12.3 Participation Rights Of Defaulting Signatory Member. Notwithstanding anything
herein to the contrary, upon the occurrence of an Event of Default and until such Event of
Default is cured, the Signatory Member that is the Defaulting Party shall not have the right to
participate under any additional Confirmations.
12.4 Remedies in the Event of Default.
12.4.1 Remedies of NCPA. Upon the occurrence of an Event of Default where
a Signatory Member is the Defaulting Party,without limiting its other rights or remedies
available under this Agreement, at law or in equity, and without constituting or resulting in a
waiver, release or estoppel of any right, action or cause of action NCPA may have against the
Defaulting Party Participant, NCPA may: (i) suspend the provision of Support Services under
this Agreement or any Confirmation issued pursuant to this Agreement to such Defaulting Party
until the Event of Default is cured; (ii) demand that the Defaulting Party provide further
assurances to compel the correction of the default,including the collection of a surcharge, or
such other actions as may be necessary to produce Revenues to secure the cure of the Event of
Default; and (iii) terminate this Agreement or any Confirmation as to the Defaulting Party,
following the expiration of any applicable cure period pursuant to section 12.1, on ten (10)
calendar days' prior written notice to the Defaulting Party.
12.4.2 Remedies of Signatory Members. Upon the occurrence of an Event of
Default where NCPA is the Defaulting Party, and following the applicable cure periods pursuant
to section 12.1, one or more Signatory Members may,without limiting their other rights or
remedies available under this Agreement, at law or in equity, and without constituting or
resulting in a waiver, release or estoppel of any right, action or cause of action they may have
against NCPA, terminate this Agreement as to themselves and without affecting the validity of
the Agreement as to other Signatory Members, subject to the provisions of Section 12.6.4.
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12.5 Special Covenants Regarding Security Accounts. In the event that a Participating
Member's balance in a required Security Account is insufficient to cover all invoices for Costs
incurred under this Agreement sent to such Participating Member, then,without limiting
NCPA's other rights or remedies available under this Agreement, at law or in equity, such
Participating Member shall cooperate in good faith with NCPA and shall cure the deficit 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 Accounts as provided herein, drawing on its cash-on-hand and lines of
credit, obtaining further assurances by way of credit support and letters of credit, and taking all
such other action as will cure the default with all due haste.
12.6 Effect of Termination or Suspension.
12.6.1 Generally. The suspension or termination of this Agreement will not
terminate,waive, or otherwise discharge any ongoing or undischarged contingent liabilities or
obligations arising from this Agreement until such obligations are satisfied in full, and all of the
Costs incurred by NCPA in connection with such suspension or termination,including
reasonable attorney fees, the fees and expenses of other experts,including auditors and
accountants, other costs and expenses that NCPA is entitled to recover under this Agreement,
and other reasonable and necessary costs associated with any and all of the remedies, are paid in
full.
12.6.2 Suspension by NCPA. If performance of all or any portion of this
Agreement is suspended by NCPA with respect to a Signatory Member in accordance with
Section 12.4.1(i) such Signatory Member 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 Costs that were not recovered from such Signatory
Member as a result of such suspension.
12.6.3 Termination by NCPA. If this Agreement is terminated by NCPA with
respect to a Signatory Member in accordance with Section 12.4.1(iii) such Signatory Member
shall pay any and all Costs incurred by NCPA as a result of such termination,including
reasonable attorney fees, the fees and expenses of other experts,including auditors and
accountants, other reasonable and necessary costs associated with such termination and any
portion of the Costs that were not, or will not be, recovered from such Signatory as a result of
such termination; provided, however,if NCPA terminates this Agreement with respect to the
last remaining Signatory Member, then this Agreement shall terminate.
12.6.4 Termination by Signatory Members. If this Agreement is terminated by
all Signatory Members in accordance with Section 10.4 , or by unanimous consent of all of the
Parties hereto, then the Signatory Members shall pay to NCPA all previously unpaid Costs
incurred as of the date of such termination. The Signatory Members shall indemnify NCPA for
any costs incurred in connection with such termination,including reasonable attorney fees, fees
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and expenses of other experts,including auditors and accountants and other reasonable and
necessary costs. If the Parties are unable to reach agreement as to the foregoing, then the
Parties agree to submit the matter to mediation with a mutually agreed upon mediator. If the
Parties are still unable to reach agreement following mediation, then the matter shall be
submitted to binding arbitration subject to the rules of the American Arbitration Association,
the costs of such arbitration being borne equally among the Signatory Members.
Section 13. Uncontrollable Forces.
13.1 Uncontrollable Force In General. Obligations of the Parties, other than those to
pay money when due, shall be excused for so long as and to the extent that failure to perform
such obligations is due to an Uncontrollable Force; provided, however, that if a Party is unable
to perform due to an Uncontrollable Force, such Party shall exercise due diligence to remove
such inability with reasonable dispatch. Nothing contained in this Agreement shall be construed
as requiring a Party to settle any strike,lockout, or labor dispute in which it may be involved, or
to accept any permit, certificate, contract, or any other service agreement or authorization
necessary for the performance of this Agreement or any Confirmations issued pursuant to this
Agreement which contains terms and conditions which a Party determines in its good faith
judgment are unduly burdensome or otherwise unacceptable.
13.2 Each Party shall notify the others promptly, by telephone to the other Parties'
operating personnel as applicable and to the parties' Designated Representatives upon becoming
aware of any Uncontrollable Force which may adversely affect the performance under this
Agreement or any Confirmation entered into pursuant to this Agreement. A Party shall
additionally provide written notice to any affected Parties within 24 hours after providing. Each
Party shall notify the others promptly,when an Uncontrollable Force has been remedied or no
longer exists.
Section 14. Dispute Resolution.
14.1 Informal Dispute Resolution. If any dispute arises between the Parties that cannot
be settled after engaging in good faith negotiations, Signatory Members and NCPA agree to
resolve the dispute in accordance with the following:
14.1.1 Each Party shall designate a senior management or executive level
representative to negotiate any dispute;
14.1.2 The representatives shall attempt, through good faith negotiations, to
resolve the dispute by any means within their authority.
14.1.3 If the issue remains unresolved after thirty (30) days of good faith
negotiations, despite having used their best efforts to do so, either Party may pursue arbitration
pursuant to Section 14.2.
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14.2 Arbitration. In the event that a dispute is unresolved following the informal
dispute resolution process established in Section 14.1, either Party may,within sixty (60) days of
the termination of such informal dispute resolution process,initiate binding arbitration to
resolve such dispute. Disputes shall be arbitrated pursuant to the Commercial Arbitration and
Mediation Rules of the American Arbitration Association. The costs of arbitration shall be
equally shared by the Parties, and the Parties shall bear their own attorneys' fees. The arbitrator
shall have no authority to amend this Agreement or any Confirmation.
14.3 Claims. This informal resolution process is not intended to nor shall it be
construed to, change the time periods for filing a claim or action specified by Government Code
§ 900, et seq.
Section 15. Miscellaneous
15.1 Compliance with Applicable Laws. NCPA and any subcontractors shall comply
with all laws applicable to the performance or provision of the Support Services hereunder.
15.2 Other Governmental Regulations. To the extent that this Agreement or any
Confirmation entered into pursuant to this Agreement may be funded by fiscal assistance from
another governmental entity, NCPA and any subcontractors shall comply with all applicable
rules and regulations to which Participating Members are bound by the terms of such fiscal
assistance program.
15.3 Licenses and Permits. NCPA represents and warrants to Participating Members
that NCPA and its employees, agents, and any subcontractors have all licenses, permits,
qualifications, and approvals of whatsoever nature that is legally required to practice their
respective professions. NCPA represents and warrants to Participating Members that NCPA
and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions.
15.4 Independent Contractor. At all times during the term of this Agreement, NCPA
shall be an independent contractor and shall not be an employee of any Participating Member.
A Participating Member shall not have the right to control the means by which NCPA
accomplishes Support Services rendered pursuant to this Agreement and the Confirmations
entered into pursuant to this Agreement. Notwithstanding any other agency, state,local or
federal policy, rule, regulation, law, or ordinance to the contrary, NCPA and any of its
employees, agents, and subcontractors providing Support Services under this Agreement and
the Confirmations entered into pursuant to this Agreement shall not qualify for or become
entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any
incident of employment by any Participating Member,including but not limited to eligibility to
enroll in the California Public Employees Retirement System (PERS) as an employee of a
Participating Member and entitlement to any contribution to be paid by a Participating Member
for employer contributions and/or employee contributions for PERS benefits.
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15.5 Confidentiality. The Parties will keep confidential all confidential or trade secret
information made available to them in connection with this Agreement (including all
Confirmations entered into pursuant to this Agreement), to the extent possible, consistent with
applicable laws,including the California Public Records Act. It shall be the responsibility of the
holder of the claim of confidentiality or trade secret to defend at its expense against any request
that such information be disclosed. Confidential or trade secret information shall be marked or
expressly identified as such.
15.6 Liabilities of Signatory Members.
15.6.1 No Signatory Member shall be liable under this Agreement for the
obligations of any Confirmation as to which it is not a Participating Member. Notwithstanding
the foregoing, the Parties acknowledge that any debts or obligations entered into by NCPA
pursuant to this Agreement not connected with any Confirmation shall be jointly and severally
borne by them as Signatory Members , and not by non-Signatory Members of NCPA, pursuant
to Article IV, Section 3(b) of the Joint Powers Agreement.
15.6.2 Each Participating Member shall be solely responsible and liable for
performance of its own obligations under this Agreement as to those Confirmations under
which it has chosen to receive Member Services. The obligation of each Participating Member
under a given Confirmation is a several obligation and not a joint obligation with those other
Participating Members with respect to a given Confirmation, subject to the authority of NCPA
pursuant to section 7 to utilize Security Account funds if necessary for a given Confirmation
regardless of the Participating Member which provided such Security Account funds.
15.7 No Consequential Damages. FOR ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF
DAMAGES IS PROVIDED IN THIS AGREEMENT,THE LIABILITY OF THE
DEFAULTING PARTY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION,
AND ALL OTHER DAMAGES OR REMEDIES ARE HEREBY WAIVED. IF NO
REMEDY OR MEASURE OF DAMAGE IS EXPRESSLY PROVIDED,THE LIABILITY
OF THE DEFAULTING PARTY SHALL BE LIMITED TO ACTUAL DAMAGES ONLY
AND ALL OTHER DAMAGES AND REMEDIES ARE HEREBY WAIVED. IN NO
EVENT SHALL NCPA OR ANY PARTICIPATING OR SIGNATORY OR OTHER
MEMBER OR THEIR RESPECTIVE SUCCESSORS,ASSIGNS, REPRESENTATIVES,
DIRECTORS, OFFICERS,AGENTS, OR EMPLOYEES BE LIABLE FOR ANY LOST
PROFITS, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR
INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF
GOODWILL, LOST REVENUES,LOSS OF PROFIT OR LOSS OF CONTRACTS
ARISING FROM THIS AGREEMENT OR ANY CONFIRMATION ENTERED INTO
PURSUANT TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. EACH SIGNATORY MEMBER EACH
HEREBY WAIVES SUCH CLAIMS AND RELEASES EACH OTHER AND EACH OF
NCPA AND ITS MEMBERS FROM ANY SUCH LIABILITY.
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The Parties acknowledge that California Civil Code section 1542 provides that: "A general
release does not extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release,which if known by him or her must have
materially affected his or her settlement with the debtor." The Parties waive the provisions of
section 1542, or other similar provisions of law, and intend that the waiver and release provided
by this section of this Agreement shall be fully enforceable despite its reference to future or
unknown claims and its application to future and unknown Confirmations.
15.8 Amendments. Except where this Agreement specifically provides otherwise, this
Agreement may be amended only by written instrument executed by the Parties with the same
formality as this Agreement.
15.9 Severability. In the event that any of the terms, covenants or conditions of this
Agreement or the application of any such term, covenant or condition, including application to
any particular Confirmation, shall be held invalid as to any person or circumstance by any court
having jurisdiction, all other terms, covenants or conditions of this Agreement and their
application shall not be affected thereby, but shall remain in force and effect unless the court
holds that such provisions are not severable from all other provisions of this Agreement.
15.10 Governing Law. This Agreement shall be interpreted,governed by, and
construed under the laws of the State of California.
15.11 Headings. All indices, titles, subject headings, section titles and similar items are
provided for the purpose of convenience and are not intended to be inclusive, definitive, or
affect the meaning of the contents of this Agreement or the scope thereof.
15.12 Notices. Any notice, demand or request required or authorized by this
Agreement or any Confirmation entered into pursuant to this Agreement, to be given to any
Party shall be in writing. They shall either be personally delivered to a Signatory Member's
Designated Representatives and to the Secretary of the Commission or transmitted to the
Signatory Member's Designated Representatives and to the Secretary of the Commission at the
addresses shown on the signature pages hereof by U.S. mail, first class postage prepaid. 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.
Notices shall be deemed received upon delivery or three (3) days after mailing.
15.13 Warranty of Authority. Each Party represents and warrants that it has been duly
authorized by all requisite approval and action to execute and deliver this Agreement and that
this Agreement is a binding,legal, and valid agreement enforceable in accordance with its terms
as to that Party.
15.14 Counterparts. This Agreement may be executed in any number of counterparts,
and each executed counterpart shall have the same force and effect as an original instrument and
as if all the signatories to all of the counterparts had signed the same instrument. Any signature
page of this Agreement may be detached from any counterpart of this Agreement without
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impairing the legal effect of any signatures thereon, and may be attached to another counterpart
of this Agreement identical in form hereto but having attached to it one or more signature
pages.
15.15 No Assignment. Except as otherwise provided in a particular Confirmation, no
Signatory Member may assign or otherwise transfer any other rights and obligations under this
Agreement without the express written consent of NCPA.
15.16 Venue. In the event that a Party brings any action under this Agreement or any
Confirmation issued pursuant to this Agreement, the Parties agree that trial of such action shall
be vested exclusively in the state courts of California in the County of Placer or in the United
States District Court for the Eastern District of California.
15.17 Attorneys' Fees. If a Party to this Agreement brings any action,including an
action for declaratory relief, to enforce or interpret the provision of this Agreement or any
Confirmation issued pursuant to this Agreement, the Parties shall bear their own attorneys' fees.
15.18 Interpretation. Each Party to this Agreement is sophisticated in the operation of
electric utilities, and operates a publicly owned Electric System. Each Party to this Agreement
was represented by counsel during the negotiation of this Agreement. Hence, this Agreement
and all Confirmations issued pursuant to this Agreement shall be interpreted as being equally
drafted by all Parties and without reference to Civil Code Section 1654 requiring interpretation
against Parties causing an ambiguity.
15.19 No Third Party Beneficiaries. Except as otherwise provided in a particular
Confirmation to the contrary, nothing contained in this Agreement or any Confirmation issued
pursuant to this Agreement is intended by the Parties, nor shall any provision of this Agreement
or any Confirmation issued pursuant to this Agreement be deemed or construed by the Parties
or by any third person, to be for the benefit of any third party, nor shall any third party have any
right to enforce any provision of this Agreement or any Confirmation issued pursuant to this
Agreement or be entitled to damages for any breach by the Parties of any of the provisions of
this Agreement or any Confirmation issued pursuant to this Agreement.
15.20 No Implied Waiver of Breach. The waiver of any breach of a specific provision
of this Agreement or any Confirmation does not constitute a waiver of any other breach of that
term or any other term of this Agreement or Confirmation.
15.21 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and shall apply to and bind the successors and assigns of the Parties.
15.22 Conflict of Interest. NCPA shall not employ any Participating Member official or
employee to perform Support Services for that Participating Member. No officer or employee
of Participating Member shall have any financial interest in this Agreement or any Confirmation
entered into pursuant to this Agreement that would violate California Government Code
Sections 1090 et seq.
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15.23 List of Exhibits. The Exhibits referenced herein are incorporated by this
reference. They shall be denoted as follows:
Exhibit"A": Form of Signatory Member execution page including designation of Designated
Representatives and purchasing amount limitations.
Exhibit`B": Form of Confirmation.
IN WITNESS WHEREOF,each Signatory Member has executed this Agreement with the
approval of its Governing Body, and NCPA has authorized execution of this Agreement by its
General Manager in accordance with the authorization of its Commission.
NOR ERN CALIFORNIA POWER AGENCY
By:
Randy S. Howard,General Manager
ttest:
Cary Pad Assistan ecretary to the Commission
Approved s o F rm:
By:
Michael F. Dean, General Counsel
24
EXHIBIT "A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the
following NCPA Member as a Signatory Member:
City of Ukiah [Name of NCPA Member Agency]
1. The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory Member are:
Cindy Sauers(Mar 1,202216:41 PST)
Utility Director David Rapport, City Attorney
Cindy Sauers
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed $ 20,000.00
The NCPA Support Services Program Agreement was approved on January 19, 20 22
by resolution no. 2022-05 of the Ukiah City Council [Name of
Governing Body of Signatory Member, e.g., "city council" or "board of directors'].
By: [Signature of person executing]
Its: Sage Sangiacomo, City Manager [Title of person executing]
Attest: /_
ko-q [ (A-1164
Kristine Lawler(M a r2,202213:45 PST) [Signature of Person Attesting to Approval]
Its: Kristine Lawler, City Clerk [Title of Person Attesting]
Approved as to Form:
B �- xg,#—
�
Y�
Title: David Rapport, City Attorney
25
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EXHIBIT `B"
NCPA Services Program Agreement Form of Confirmation:
CONFIRMATION UNDER THE NCPA SUPPORT SERVICES PROGRAM
AGREEMENT
1. This is a Confirmation pursuant to the Support Services Program Agreement and
subject to the terms and conditions of that agreement, except as expressly provided in this
Confirmation. All capitalized terms have the meaning given to them in the Support Services
Program Agreement.
2. The Participating Members for this Confirmation are:
3. NCPA agrees to provide the following Support Services to the Participating
Members:
The Support Services will be contracted for by NCPA with using an agreement
in substantially the form attached to this Confirmation.
4. The Participating Members executing this Confirmation agree to pay for the Support
Services in the not to exceed amounts specified in this Confirmation and in accordance with the
provisions of the Support Services Program Agreement:
5. A Security Account deposit [is not required for this Confirmation/is required for this
Confirmation in the amount of$ ]
Participating Member NORTHERN CALIFORNIA POWER AGENCY
By:
By its Designated Representatives:
Randy S. Howard, General Manager
and
Attest:
Cary Padgett,
Assistant Secretary to the Commission
Approved as to Form:
By:
2507645.12 General Counsel
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EXHIBIT"A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the
following NCPA Member as a Signatory Member:
Redding [Name of NCPA Member Agency]
l. The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory Member are:
----------------
Utility ev
t General Counsel or City Attorney
Barryin Barry E. DeWalt
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed $ 125,000.007
The NCPA Support Services Program Agreement was approved on April. 19 , 20 16
by resolution no. of the Redding City Council [Name of
Governing Bod of Signato etx� er, e.g., "city council' or "board of directors"],
By: [Signature of person executing]
Its: [Title of person executing]
Art t:
[Signature of Person Attesting to Approval]
Its: City r1RXk-TLa,n�_i� Mom,a [Title of Person Attesting]
Approved as tc, Form:
By:
Title:
Form Approved
25
Bar at
City Attomey
EZHIBIT"A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the
following NCPA Member as a Signatory Member:
PORT OF OAKLAND [Name of NCPA Member Agency]
1_ The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Si ❑ M
Chris l xecutive Director Danny Wan,General C n
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed $ 150,000
The NCPA Support Services Program Agreement was approved on April 14, 32016
lay resolution no. 1 G-45 of the Board of Port Commi sinners [Name of Governing
Body of Signfr6 Member,e.g., "city council" or"board of directors"].
By: Chris Lytle [Signature of person executing]
Its: xe utive Director [Title of person executing]
Attest:
John Bettetton[Signature of Person Attesting to approval]
Its: 4c`reta , to the Board [Title of Person Attesting]
Approved as to orm:
0/7
By: /4�7
Title:
25
02/09/2016 DRAFT
EXHIBIT"A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved,executed and joined by the
following NCPA Member as a Signatory Member:
City of Santa Clara [Name of NCPA Member Agency]
1. The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory Member are:
City onager General Counsel or City Attorney
?. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed$ 1501000
The NCPA Support Services Program Agreement was approved on May 24 , 2416_
by resolution no. 1 G-8327 of the Santa Clara CiW-CQuncil [Name of
Governin Body of S' atory Member,e.g.,"city council' or"board of directors"].
By: "-u [Signature of person executing]
RAJE V BATRA
Its: Acting Ciry Manager _ _ [Tide of person
executing]
Attest:
[Signature of Person Attesting to App rov al]
Its: City Clerk [Title of Person Attesting]
Approved as to Fo
By: — /9�3
Title: City Attorney
25
EXHIBIT"A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the
following NCPA Member as a Signatory Member:
CITY OF ALAMEDA DBA Ai.AMEDA MUNICIPAL POWER
1. The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory Member are:
AMP General Manager A General Counsel r
Elizabeth Warmerdam,Interim Alan M. Cohen
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed 75,00D-
The NCPA Support Services Program Agreement was approved on June 8, 2016 by City of
Alameda Resolution No. 15154.
By: Q, 9t�' ('-�
Elizabeth Warmerdam, Interim General Manager
Attest:
Lara Weisiger, City lerk
Approve orm:
By:
Title: Jan C. Kern, City Attorney
l:\I iiBrr
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program .Agreement is hereby approved,executed and joined by the
following NCP.A Member as a Signatory Member.
C%-Fy _F 15,1+,.(.S [Name of NCP.A Member:Agency]
1. -Abe initial Desigmated Representatives of ncc Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory [liember are:
f'tLy Director Caen• Cep uisel or 0ty Attorney
1 The Designated Representatives are authorized to jointly execute any given individual
Confrrnation for Support Services on behalf of the Signatory Member which does not
exceed$ l'�S
The NC:P;A Support Services Program :A6nvement was approved on
uy resolution no. of the GL ..t [Name of
Goveming Body o 'i arory Member,e.g.,"city council" or"board of directors"[.
By: [Signature of person executing]
Its: G i1y +t+�■.3 S r, a� .. [Title of person executing]1rtcst:
4A.w�PoaojAi
ure[Signat of Person Attesting to.Approval]
1 m F [Title of Person Attesting]
.Approved as:�Kz
By:
"I-i tic: Ca f P%e
EXHIBIT"A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by
the following NCPA Member as a Signatory Member:
THE CITY OF LODI
1. The initial Designated Representatives of the Signatory Member who are jointly
autho ' d to execute Confirmations on behalf of the Signatory Member are:
ty Direc to"—Elizabeth Kirkley City Atorney—Janice D. Magdich
Authorized for Not More Than$15,000
Per Confirmation
Cityana er—Steve Sc uerrityAtto e — anice D. Ma dick
g Y J g
Authorized for Not More Than$20,000
Per Confirmation
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed the dollar amounts specified above.
The NCPA Support Services Program Agreement was approved onpr" �e{ .2, 2016
by Resolution no. 20J6-lbw of the Lodi City Council.
By: [Signature of person executing]
Its: v ro CA k [Title of person executing]
Attest:
By:
Oy
ferM. erraiolo
Its: Clerk
Approved s-to Form:
By:
�nice_D.Magdich
Title: Ci y Aitorney
EXHIBIT"A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the
following NCPA Member as a Signatory Member:
City of Roseville [Name of NCPA Member Agency]
1. The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory Member are:
ty Directo General Counsel or City Attorney
Michelle Bertolino Robert Schmitt
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed S 50,000
The NCPA Support Services Program Agreement was approved on October 5 2OI6
by resolution no. 15-428 of the_Roseville City Council [Name of
Governing Bod f Signatory Member, e.g., "city council" or "board of directors"].
By: [Signature of person executing]
Its: C [Title of person executing]
Attest:
[Signature of Person Attesting to Approval]
Its: C i ty C l e r k ['Title of Person Attesting]
Approved as to Form:
By: 20�4�xAt
Title: City Attorney
EXHIBIT "A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page i
The Support Services Program Agreement is hereby approved, executed and joined by the
following NCPA Member as a Signatory Member:
City of Lompoc [Name of NCPA Member Agency]
1. The initial Designated Representatives of the Signatory Member who are jointly
authorized to execute Confirmations on behalf of the Signatory Member are:
i
tility;an7/
CO orney
Larry J sepli W.-Pannone
t
2. The Designated Representatives are authorized to jointly execute any given individual
Confirmation for Support Services on behalf of the Signatory Member which does not
exceed $ 125,000 .
The NCPA Support Services Program Agreement was approved on November 15, 2016 by 4
resolution no. 6078 16 of the City of Lompoc City Council [Name of
c
Governing Body of Signatory Member, e.g., "city council' or "board of directors"].
By: , % _- .. = [Signature of person executing]
Patrick Wiemiller
Its: City Manager [Title of person executing] "
c
Attest:
Ql
[Signature of Person Attesting to Approval]
Stacey H4ddo
Its: —City'. rh [Title of Person Attesting]
Approved as to Form:
r
By:
e W. Pannone
Title: ity Attorney
i
I
u
I
CERTIFIED COPY
RESOLUTION NO. 6078(16)
A Resolution of the City Council of the City of Lompoc,
County of Santa Barbara, State of California,
Approval of Support Services Program Agreement with
the Northern California Power Agency
WHEREAS, City of Lompoc (City) is a member of the Northern California Power
Agency (NCPA), a joint action agency providing members with opportunities for joint E
generating, transmission and other projects, as well as other supporting programs such
as scheduling and dispatch services and legislative advocacy services to publicly
owned utilities throughout Northern California; and
WHEREAS, City is a member of NCPA and currently receives benefit from
k
various projects and programs offered at NCPA; and
WHEREAS NCPA is expanding service offerings to its members by offering
additional support services such as joint purchasing, engineering services, transmission
and distribution planning, power marketing and analysis, employee training,
employment and human relations assistance, customer services and billing, metering
and data management, power plant operations, and other forms of assistance and
professional services relating to the operation of a publicly owned electric utility, as
related to either the generation, transmission, or distribution of electricity or the
wholesale or retail operation of such a utility; and
WHEREAS, approval of the attached Support Services Program Agreement
(SSPA) between NCPA and the City will provide the opportunity for the City to utilize the
benefit of those new services; and
WHEREAS, the SSPA provides Designated Representatives are responsible for
G
committing to individual service offerings on behalf of a member organization and that
the governing board of said member delegate authority to bind the City/member to E
contractually receive and pay for service offerings in writing through a confirmation
IF
process; and j
WHEREAS, Staff recommends the City Council approve the SSPA and appoint
the City Attorney and the Utilities Director as Designated Representatives under the
SSPA and be delegated the authorities outlined in said agreement for amounts not to
exceed $125,000 per confirmation.
i
G
E
a
r
a
Resolution No. 6078(16)
Page 2 of 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LOMPOC, CALIFORNIA,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council approves the Support Services Program Agreement
between NCPA and the City and authorizes the City Manager or his delegate to execute
i
the agreement; and
SECTION 2. The City Council appoints the City Attorney and the Utilities Director as
Designated Representatives under the SSPA and delegates all authority to them to
executive service confirmations for amounts not to exceed $125,000 per confirmation
I
for services under the SSPA; and
{
SECTION 3. Effective Date. Resolution is effective on the day of its adoption.
The foregoing Resolution was proposed by Council Member Holmdahl, seconded by
Council Member Vega, and duly passed and adopted by the Council of the City of
Lompoc at its regular meeting on November 15, 2016, by the following vote:
E
AYES: Council Member(s): DeWayne Holmdahl, Victor Vega, James
Mosby, and Mayor Bob Lingl. I
NOES: Council Member(s): None
ABSENT: Council Member(s): Dirk Starbuck
I
I
Bob Lingl,�MMa r
City of Lomp
ATTEST:
Stacey Alva e , City Clerk
City of Lomp
Attachment: NCPA Support Services Program Agreement
I HEREBY CERTIFY THAT THE
foregoingInstrument is a true and
correct c py of the original®n',file,ln
the L c City c IS p rim ent.
ATTEST: