HomeMy WebLinkAbout16 Attachment F_Amended_and_Restated_MPP1834887.5
AMENDED AND RESTATED
MARKET PURCHASE PROGRAM AGREEMENT
1834887.5 i
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
TABLE OF CONTENTS
Section 1. Definitions. ................................................................................................... 3
Section 2. Effectiveness of Agreement ..................................................................... 21
Section 3. Authority .................................................................................................... 22
Section 4. Transaction Conditions ............................................................................ 22
Section 5. Transaction Instruments .......................................................................... 22
Section 6. Transaction Process and Participant Subscription to a Contract
Transaction .............................................................................................. 24
Section 7. Delivery and Receipt of a Contract Transaction ................................... 27
Section 8. Cooperation and Further Assurances .................................................... 29
Section 9. Financial Obligations, Invoicing and Security Deposit
Administration ....................................................................................... 30
Section 10. Administration of Agreement ................................................................. 43
Section 11. Admission and Withdrawal of Participants ......................................... 45
Section 12. Term and Termination ............................................................................. 48
Section 13. Default and Remedies .............................................................................. 49
Section 14. Miscellaneous ............................................................................................ 55
Exhibit A. Participant Authorization - Energy ....................................................... A-1
Exhibit B. Participant Authorization - RECs ............................................................ B-1
Exhibit C. Participant Authorization – Resource Adequacy Capacity ............... C-1
Exhibit D. Participant Authorization – GHG Compliance Instruments ............. D-1
Exhibit E. NCPA Commission-Approved Master Agreements ............................ E-1
Exhibit F. NCPA Commission-Approved Bilateral Agreements .......................... F-1
Exhibit G. NCPA Commission-Approved Exchanges .......................................... G-1
Exhibit H. NCPA Commission-Approved Auctions ............................................. H-1
Exhibit I. NCPA Commission-Approved Brokers ................................................... I-1
Exhibit J. Irrevocable Letter of Direction ................................................................... J-1
Exhibit K. Participant Authorization - Low Carbon Fuel Standard Credits ...... K-1
This AMENDED AND RESTATED MARKET PURCHASE PROGRAM
AGREEMENT ("the Agreement") is made effective as of - (0- ( 2-("the
Effective Date"),by and among the Northern California Power Agency, a joint
powers agency of the State of California ("NCPA")and those of its Members
who execute this Agreement ("Participants").NCPA and the Participants are
referred to herein individually as a "Party"and collectively as the "Parties".
RECITALS
A.NCPA and the Participants desire to amend the Market Purchase
Program Agreement made effective August 1, 2007, by and among NCPA and
the Market Purchase Program Participants, to enable NCPA, on behalf of the
Participants, to engage in Contract Transactions to purchase and sell Energy,
Resource Adequacy Capacity, RECs, GHG Compliance Instruments and Physical
Option Products, for the benefit of the Participants' customers.
B.This Agreement is made to amend the Market Purchase Program
Agreement, and to enable NCPA to transact in Approved Products identified in
the Energy Risk and Counterparty Risk Management Regulations, on behalf of
the Participants in accordance with the terms and conditions contained herein.
C.The Participants, through Contract Transactions authorized by this
Agreement, seek to assure greater rate and budget stability by: (i) reducing the
proportion of Energy that Participants need to acquire in a potentially volatile
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
1
1834887.5 2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
spot market; (ii) transacting in bundled and unbundled RECs to manage
Participants’ renewable energy portfolios; (iii) satisfying applicable resource
adequacy requirements more efficiently; and (iv) satisfying applicable GHG
emission compliance obligations more efficiently.
D. The Participants desire that NCPA negotiate and enter into
Contract Transactions with creditworthy counterparties to allow Participants to
diversify their counterparty risk by subscribing to a more diverse portfolio of
Contract Transactions than if each individually selected a single market
counterparty.
E. The Participants recognize that several factors, including but not
limited to, evaluation of counterparty risk, operational risk, price, and liquidity
requirements, may be relevant to the decision of whether to enter into any
Contract Transaction, including whether to use bundled or unbundled REC
Transactions to accomplish individual Participant’s renewable portfolio goals.
F. The Participants further desire to enable and obligate NCPA to
conduct the foregoing activities, and to enable and obligate the Participants to
deliver, take delivery of, and pay for Approved Products, and to pay NCPA for
the costs of undertaking the foregoing activities.
G. The Parties further desire, insofar as possible, to insulate other
Participants from the risks inherent in the transactions undertaken by any given
1834887.5 3
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Participant, and to insulate non-Participant Members and NCPA from the risks
undertaken by the Participants.
NOW THEREFORE, in consideration of the foregoing, the Parties agree
and intend to be legally bound as follows:
Section 1. Definitions.
1.1 Definitions. Whenever used in this Agreement (including the
Recitals hereto), the following terms shall have the following respective
meanings:
1.1.1 “Adjusting Participant” means a Participant who has
agreed to assume all or a portion of a Withdrawing Participant’s Subscription
Percentage in one or more Contract Transactions, as set forth in Section 11.2.1.
1.1.2 “Agreement” means this Amended and Restated Market
Purchase Program Agreement, including all Exhibits attached hereto, as each
may be amended from time to time in accordance with the terms and
conditions hereof.
1.1.3 “All Resources Bill” means the single, combined monthly
bill from NCPA to a Participant with respect to all NCPA programs and
projects, as such may be amended from time to time.
1834887.5 4
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.4 “Allocating Participant” means a Participant who has
formally elected and agreed to allocate all or a portion of its then existing
Subscription Percentage share in one or more Contract Transactions to an
existing or new Participant as set forth in Section 11.1.
1.1.5 “Annual Budget” means a NCPA budget for a specific
Fiscal Year as adopted by the Commission, as it may be amended from time
to time.
1.1.6 “Approved Products” means Energy, Resource
Adequacy Capacity, RECs, GHG Compliance Instruments and Physical
Option Products indentified as such in the Energy Risk and Counterparty
Risk Management Regulations.
1.1.7 “Associate Member” means an associate member of
NCPA.
1.1.8 “Auction” shall mean those Commission-approved
auctions set forth in Exhibit H.
1.1.9 “BART” means the San Francisco Bay Area Rapid Transit
District.
1.1.10 “Bilateral Agreement” means an agreement used to
purchase and sell Approved Products, entered into by NCPA with Third
1834887.5 5
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Parties or among Participants. A Bilateral Agreement shall be in a form
approved by the Commission.
1.1.11 “Business Day” means any day except a Saturday,
Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at
8:00 a.m. and close at 5:00 p.m. local time.
1.1.12 “Bundled REC” means a REC procured or sold together
with Energy as a “bundled” commodity.
1.1.13 “Broker” shall mean those Commission-approved
brokers set forth in Exhibit I.
1.1.14 “Cap and Trade Program” means: (i) CARB’s Regulation
for the California Cap on Greenhouse Gas Emissions and Market-Based
Compliance Mechanisms as set forth in title 17, California Code of
Regulations, chapter 1, subchapter 10, article 5 (commencing with section
95800), as such may be amended from time to time, or (ii) other GHG
compliance obligations, including but not limited to, federal, regional, state,
or local jurisdictions.
1.1.15 “CARB” means the California Air Resources Board, or
its successor organization.
1834887.5 6
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.16 “CARB Offset Credit” means a tradable compliance
instrument issued by CARB that represents a GHG reduction or GHG
removal enhancement of one metric ton of CO2.
1.1.17 “Claims” has the meaning set forth in Section 14.2.
1.1.18 “Commission” means the NCPA Commission.
1.1.19 “Commodity Costs” means the costs billed to NCPA by a
Third Party or Participant for an Approved Product acquired pursuant to a
Contract Transaction.
1.1.20 “Commodity Revenues” means the payments rendered
to NCPA by a Third Party or Participant for an Approved Product sold by
NCPA pursuant to a Contract Transaction.
1.1.21 “Constitutive Documents” means, with respect to NCPA,
the Joint Exercise of Power Act (Cal. Govt. Code § 6500 et seq.), the Joint
Powers Agreement and any resolutions adopted thereunder, and the NCPA
Rules of Procedure, and with respect to each Participant, the California
Government Code and other statutory provisions applicable to such
Participant, any applicable agreements, charters, contracts or other
documents concerning the formation, operation or decision making of such
Participant, including, if applicable, its City Charter, and any codes,
1834887.5 7
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
ordinances, bylaws, and resolutions adopted by such Participant’s governing
body.
1.1.22 “Contract Price” means, with respect to any Contract
Transaction under this Agreement, the price per MWh, price per MW, price
per REC, price per metric ton of carbon dioxide equivalent, and/or a
combination of such per unit prices listed in the applicable Transaction
Confirmation.
1.1.23 “Contract Transaction” means a purchase or sale of
Approved Products involving a Third Party or Participant that satisfies the
Transaction Conditions, and has been approved by each involved Party
through use of a Participant Authorization in accordance with Section 6 of
this Agreement.
1.1.24 “Deal Capture System” means NCPA’s internal database
that includes all of the MPP transactions and related details, such as
scheduling, payments, price, delivery dates, Participant Subscription
Percentage and the counterparties.
1.1.25 “Defaulting Party” has the meaning set forth in Section
13.1.
1.1.26 “Designated Representatives” means with respect to
NCPA, its General Manager; and with respect to each Participant, its Utility
1834887.5 8
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Director (an employee other than the Utility Director may be designated by
resolution of the Participant’s governing body).
1.1.27 “Effective Date” means the later of: (i) the date set forth
in the preamble of this Agreement; or (ii) the date this Agreement is executed
by all of the Participants.
1.1.28 “Electric System” means, with respect to each Participant
except BART and the Port of Oakland, all properties and assets, real and
personal, tangible and intangible, of the Participant now or hereafter existing,
used or pertaining to the generation for resale, transmission, transformation,
distribution or sale of electric capacity and energy, or the utilization of such,
including all additions, extensions, expansions, improvements and
betterments thereto and equipment thereof; provided, however, that to the
extent the Participant is not the sole owner of an asset or property or to the
extent that an asset or property is used in part for the above described
purposes, only the Participant’s ownership interest in such asset or property
or only the part of the asset or property used for electric purposes shall be
considered to be part of its Electric System. Should BART become a
Participant under this Agreement, Electric System, with reference to BART
shall mean its rail transit system. Should the Port of Oakland become a
1834887.5 9
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Participant under this Agreement, Electric System, with reference to the Port
of Oakland shall mean the Port of Oakland.
1.1.29 “Emissions Allowance” means a limited tradable
authorization to emit up to one metric ton of carbon dioxide equivalent.
1.1.30 “Energy” means the generation or use of electric power
over a period of time, usually expressed in megawatt hours, kilowatt hours or
gigawatt hours.
1.1.31 “Energy Risk and Counterparty Risk Management
Regulations” means that certain NCPA Energy Risk and Counterparty Risk
Management Regulations, version 1.5, approved May 6, 2011, as the same
may be amended from time to time.
1.1.32 “Energy Risk Management Policy” means that certain
NCPA Energy Risk Management Policy, version 1.3, approved June 16, 2011,
as the same may be amended from time to time.
1.1.33 “Environmental Attributes" means any and all credits,
benefits, emissions reductions, offsets, and allowances, howsoever entitled,
directly attributable to the market transaction hereunder. Environmental
Attributes include but are not limited to: (1) any avoided emissions of
pollutants to the air, soil or water such as sulfur oxides (“SOx"), nitrogen
oxides (“NOx”), carbon monoxide (“CO”) and other pollutants; (2) any
1834887.5 10
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
avoided emissions of carbon dioxide (“CO2”), methane (“CH4”) and other
greenhouse gases (“GHGs”) that have been determined by the United
Nations Intergovernmental Panel on Climate Change to contribute to the
actual or potential threat of altering the Earth’s climate by trapping heat in
the atmosphere; and (3) the reporting rights to these avoided emissions such
as green tag reporting rights. Environmental Attributes do not include: (1)
any energy, capacity, reliability or other power attributes; (2) production tax
credits associated with the construction or operation of the energy projects
and other financial incentives in the form of credits, reductions, or allowances
associated with the project that are applicable to a state or federal income
taxation obligation: (3) fuel-related subsidies or "tipping fees" that may be
paid to seller to accept certain fuels, or local subsidies received by the
generator for the destruction of particular pre-existing pollutants or the
promotion of local environmental benefits; (4) emission reduction credits
encumbered or used by the unit(s) for compliance with local, state, or federal
operating and/or air quality permits; and (5) RECs.
1.1.34 “Event of Default” has the meaning set forth in Section
9.7.3 and Section 13.1.
1.1.35 “Exchange” means a Commission-approved organized
market on which transactions relating to Approved Products, in the form of
1834887.5 11
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
standardized contracts, may be entered into. Examples of Exchanges include
the New York Mercantile Exchange (“NYMEX”) and the Intercontinental
Exchange (“ICE”).
1.1.36 “Fiscal Year” means the NCPA fiscal year; currently the
twelve month period beginning July 1 and ending on the next following June
30.
1.1.37 “Fixed MPP Costs” means those costs deemed to be
incurred by NCPA regardless of whether NCPA transacts with Third Parties
or Participants under this Agreement, including start-up costs and attorneys’
fees.
1.1.38 “General Operating Reserve” means the NCPA General
Operating Reserve created through resolution of the Commission, as the
same may be amended from time to time.
1.1.39 “Greenhouse Gas” or “GHG” includes, but is not limited
to, carbon dioxide (“CO2”), methane (“CH4”), nitrous oxide (“N2O”), sulfur
hexafluoride (“SF6”), hydrofluorocarbons (“HFCs”), perfluorocarbons
(“PFCs”), and other fluorinated gasses.
1.1.40 “GHG Compliance Instrument” means any instrument,
including but not limited to, Emission Allowance, CARB Offset Credit or
1834887.5 12
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Sector-Based Offset Credit that can be used to fulfill a GHG emissions
compliance obligation.
1.1.41 “Initial Term” has the meaning set forth in Section 12 of
this Agreement.
1.1.42 “Joint Powers Agreement” means that certain Amended
and Restated Northern California Power Agency Joint Power Agreement
dated as of January 1, 2008, as the same may be amended from time to time.
1.1.43 “Mandatory Reporting Regulation” or “MRR” means
CARB’s Regulation for the Mandatory Reporting of Greenhouse Gas
Emissions as set forth in title 17, California Code of Regulations, chapter 1,
subchapter 10, article 2 (commencing with section 95100), as such may be
amended from time to time.
1.1.44 “Master Agreement” means a Commission-approved
agreement used to purchase and sell Approved Products, entered into by
NCPA with Third Parties. A Master Agreement shall be in the form of a
standardized industry agreement, with such modifications as have been
approved by the Commission, provided that, in any particular instance, a
Master Agreement may be modified in the discretion of the NCPA General
Manager and NCPA General Counsel, after consultation with the
1834887.5 13
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Participants, where such modifications are reasonably required in order to
consummate the Master Agreement or to transact under the MPP.
1.1.45 “Maximum Contract Price” means the applicable lawful
ceiling price for Approved Products at the time a Contract Transaction is
consummated.
1.1.46 “Member” means any Member or Associate Member of
NCPA.
1.1.47 “MW” means megawatt.
1.1.48 “MWh” means megawatt hour.
1.1.49 “MPP” or “Market Purchase Program” means the NCPA
Market Purchase Program established by this Agreement, consisting of all
Contract Transactions hereunder and all Participants hereto as program
Participants.
1.1.50 “MPP Costs” are all Fixed MPP Costs and Variable MPP
Costs (each including administrative and general overhead costs), other than
Transaction Specific Costs and Commodity Costs associated with the MPP.
1.1.51 “NCPA” has the meaning set forth in the preamble
hereto.
1834887.5 14
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.52 “NCPA Rules of Procedure” means the Rules of
Procedure for the Northern California Power Agency, sometime referred to as
the “NCPA By-laws”, as such may be amended from time to time.
1.1.53 “Participant” means a Member of NCPA who has
executed this Agreement as set forth herein.
1.1.54 “Participant Authorization” means a Participant’s
written and properly executed authorization of a Contract Transaction, in the
form of Exhibit A, Exhibit B, Exhibit C, Exhibit D or Exhibit F.
1.1.55 “Party” or “Parties” has the meaning set forth in the
preamble hereto; provided that “Third Parties” are entities that are not party
to this Agreement.
1.1.56 “Physical Call Option” means a contract that offers a
buyer the right, but not the obligation, to buy a quantity of Energy to be
delivered at a predetermined price.
1.1.57 “Physical Collar Transaction” means a transaction
strategy used to mitigate the risk of market price volatility, consummated
through the purchase of a Physical Call Option and the sale of a Physical Put
Option, for the same term and quantity, to effectuate a ceiling and floor price
for Energy transactions.
1834887.5 15
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.58 “Physical Option Products” means a Physical Call
Option or Physical Collar Transaction for Energy that is entered into to
stabilize the costs of Energy for one or more Participants.
1.1.59 “Physical Put Option” means a contract that offers a
seller the right, but not the obligation, to sell a quantity of Energy to be
delivered at a predetermined price.
1.1.60 “Port of Oakland” means the City of Oakland, acting by
and through its Board of Port Commissioners.
1.1.61 “Principal Counsel” means with respect to NCPA, its
General Counsel, and with respect to each Participant, its City Attorney or
General Counsel.
1.1.62 “Procure” or “Purchase” and other forms of such verbs,
including Procurement, Procuring, Procured, Purchasing and Purchased
means acquiring Approved Products through Contract Transactions with
Third Parties or Participants.
1.1.63 “Renewable Energy Certificate” or “REC” means a
certificate of renewable energy generation from units that register in the
WREGIS system, or other commonly accepted renewable energy generation
tracking system or program, which can be used to verify compliance with
state and provincial regulatory requirements such as Renewable Portfolio
1834887.5 16
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Standards. A REC may or may not include associated Environmental
Attributes as specified in a Contract Transaction.
1.1.64 “Renewable Portfolio Standard” or “RPS” means the
California Renewable Energy Resources Act, SB 2 (1X) (Simitian, Chapter 1,
Statutes of 2011, First Extraordinary Session), as may be amended from time
to time.
1.1.65 “Replacement Commodity Costs” means the costs billed
to NCPA by a Third Party or Participant for an Approved Product acquired
by NCPA as an alternative supply of Approved Product in order to complete
a Contract Transaction.
1.1.66 “Resource Adequacy Capacity” is that capacity in MW
that has been approved by each Participant, acting as a local regulatory
authority, as capacity available to ensure that adequate resources are
available to meet peak demand and planning reserves for the purposes of
local area and system reliability.
1.1.67 “Revenues” means with respect to each Participant other
than BART, all income, rents, rates, fees, charges and other revenues derived
by the Participant from the ownership or operation of its Electric System,
including, without limiting the generality of the foregoing: (a) all income,
rents, rates, fees, charges or other moneys derived from the sale, furnishing
1834887.5 17
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
and supplying of electric capacity and energy and other services, facilities,
and commodities sold, furnished, or supplied through the facilities of its
Electric System; (b) the earnings on and income derived from the investment
of such income, rents, rates, fees, charges or other moneys to the extent that
the use of such earnings and income is limited by or pursuant to law to its
Electric System; and (c) the proceeds derived by the Participant directly or
indirectly from the sale, lease or other disposition of all or a part of the
Electric System, but the term Revenues shall not include (i) customers’
deposits or any other deposits subject to refund until such deposits have
become the property of the Participant; or (ii) contributions from customers
for the payment of costs and construction of facilities to serve them. Should
BART become a Participant, with reference to BART, Revenues means, all
income, rents, rates, fees, charges, grants, fares or tariffs, subventions and
other moneys derived from its operations including, without limiting the
generality of the foregoing, (i) the earnings on and income derived from the
investment of such income, rents, rates, fees, charges, grants, fares or tariffs,
subventions or other moneys and (ii) the proceeds derived directly or
indirectly from the sale, lease or other disposition of all or a part of its assets,
but the term Revenues shall not include any moneys derived from sources the
use of which is limited by law to expenditures other than operating expenses.
1834887.5 18
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.68 “Request for Proposal” or “RFP” means the issuance of a
request for offers and or bids to purchase or sell Approved Products.
1.1.69 “Scheduling Protocols” means the applicable provisions
of the Scheduling Coordinator Program Agreement and any other contractual
or other arrangements between NCPA and the relevant Participant
concerning the scheduling, delivery and metering of a Contract Transaction
approved by the Parties.
1.1.70 “Sector-Based Offset Credit” means a credit issued from
a sector-based crediting program once the crediting baseline for a sector has
been reached.
1.1.71 “Security Deposit” means funds deposited by
Participants with NCPA that are irrevocably committed and held in the
General Operating Reserve in accordance with Section 9.4. Such funds are
available for use by NCPA in accordance with the terms and conditions
hereof.
1.1.72 “Sale” or “Sell” and other forms of such verb, including
Selling and Sold, means to transfer Approved Products through Contract
Transactions to Third Parties or Participants.
1834887.5 19
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.73 “Subscription Percentage” means that proportion of a
Contract Transaction that a Participant subscribes to through a Participant
Authorization, in accordance with the terms of this Agreement.
1.1.74 “Term” has the meaning set forth in Section 12.
1.1.75 “Transaction Conditions” has the meaning set forth in
Section 4.
1.1.76 “Transaction Confirmation” has the meaning given to it
in the Master Agreement used to transact Approved Products through a
Contract Transaction.
1.1.77 “Transaction Instrument” has the meaning set forth in
Section 5.
1.1.78 “Transaction Specific Costs” means any and all costs,
except for Commodity Costs, directly or indirectly incurred by NCPA arising
due to the execution of a Contract Transaction. Transaction-Specific Costs
include, but are not limited to, termination payments, counterparty requests
for assurances, related legal fees, option premiums and associated staff time.
1.1.79 “Unbundled REC” means a REC procured or sold as a
separate commodity, apart from the underlying renewable Energy that was
generated to create the REC.
1834887.5 20
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.1.80 “Utility Director” means the most senior employee of a
Participant with authority and duty to direct, manage, and control operations
of the Participant’s electric utility; or, if the Participant does not have an
electric utility, the most senior employee with authority and duty to direct,
manage, and control acquisition and use of electric power on behalf of that
Participant.
1.1.81 “Variable MPP Costs” are those costs that are common to
all Participants under this Agreement but are expected to vary with the size
and scope of the MPP established under this Agreement, including NCPA
staff time.
1.1.82 “WECC” means the Western Electricity Coordinating
Council, or its successor organization.
1.1.83 “Withdrawing Participant” means a Participant that has
withdrawn from the Agreement as set forth in Section 11.2.1.
1.1.84 "WREGIS” means the Western Renewable Energy
Generation Information System which is the independent, renewable energy
tracking system for the region covered by WECC, established by the
California Energy Commission pursuant to Section 399.25 of the California
Public Utilities Code, as the same may be amended from time to time.
1834887.5 21
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1.2 Rules of Interpretation. As used in this Agreement (including the
Recitals hereto), unless in any such case the context requires otherwise: the terms
“herein,” “hereto,” “herewith” and “hereof” are references to this Agreement
taken as a whole and not to any particular provision; the term “include,”
“includes” or “including” shall mean “including, for example and without
limitation;” and references to a “Section,” “subsection,” “clause,” or “Exhibit”
shall mean a Section, subsection, clause or Exhibit of this Agreement, as the case
may be. All references to a given agreement, instrument or other document shall
be a reference to that agreement, instrument or other document as modified,
amended, supplemented and restated through the date as of which such
reference is made, and reference to a law, regulation or ordinance includes any
amendment or modification thereof. A reference to a “person” includes any
individual, partnership, firm, company, corporation, joint venture, trust,
association, organization or other entity, in each case whether or not having a
separate legal personality and includes its successors and permitted assigns. The
singular shall include the plural and the masculine shall include the feminine,
and vice versa.
Section 2. Effectiveness of Agreement. This Agreement shall be in force as to
each Participant on the first day of the month following the Effective Date,
subject to the provisions for new Participants in Section 11.1 below.
1834887.5 22
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Section 3. Authority. NCPA has the authority to purchase and sell Approved
Products using Contract Transactions in accordance with the terms of this
Agreement. Participants shall have the authority to subscribe to Contract
Transactions pursuant to the terms and conditions set forth in this Agreement.
Section 4. Transaction Conditions. All Contract Transactions consummated
in accordance with this Agreement shall satisfy the following conditions
(“Transaction Conditions”):
4.1.1 Contract Transactions shall be made in accordance with
all requirements and conditions set forth in NCPA’s Energy Risk
Management Policy and Energy Risk and Counterparty Risk Management
Regulations, including, but not limited to, those limiting the term and volume
of Contract Transactions; and
4.1.2 Contract Transactions shall be limited to those Approved
Products listed in NCPA’s Energy Risk Management Policy and Energy Risk
and Counterparty Risk Management Regulations; and
4.1.3 The Contract Price for a Contract Transaction shall not
exceed the Maximum Contract Price for the relevant product.
Section 5. Transaction Instruments.
5.1 NCPA shall negotiate and enter into all necessary agreements and
related or incidental documents required to consummate a Contract Transaction;
1834887.5 23
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
provided, however, that all Contract Transactions undertaken by NCPA
pursuant to this Agreement may only be initiated using one or more of the
following Commission-approved instruments (“Transaction Instruments”):
5.1.1 Contract Transactions may be initiated through the use of
a Commission-approved Master Agreement. Commission-approved Master
Agreements are listed in Exhibit E.
5.1.2 Contract Transactions may be initiated through the use of
a Commission-approved Bilateral Agreement. Commission-approved
Bilateral Agreements are listed in Exhibit F.
5.1.3 Contract Transactions may be initiated through the use of
a Commission-approved Exchange. Commission-approved Exchanges are
listed in Exhibit G.
5.1.4 Contract Transactions may be initiated through the use of
a Commission-approved Auction.
The relevant Exhibits of the Agreement shall be amended from time to
time to reflect the addition of and removal of Commission-approved Transaction
Instruments in accordance with Section 14.5.2.
5.2 Amendments to Transaction Instruments. The Commission-
approved Master Agreements and Commission-approved Bilateral Agreements
utilized to consummate Contract Transactions may, in any given instance, be
1834887.5 24
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
modified in the discretion of the NCPA General Manager and NCPA General
Counsel, after consultation with the Participants, to include additional terms and
conditions approved by the Parties’ Designated Representative and approved as
to form, procedure and authorization by the Parties’ Principal Counsel, or to
delete previously approved Commission modifications to the form of the Master
Agreement(s) and Bilateral Agreement(s), where such modifications are
reasonably required in order to transact under the MPP.
Section 6. Transaction Process and Participant Subscription to a Contract
Transaction. From time-to-time, NCPA may propose that one or more
Participants subscribe to a Contract Transaction, or one or more Participants may
request NCPA to initiate a Contract Transaction in accordance with the terms
and conditions of the Agreement. All Contract Transactions undertaken
pursuant to the Agreement shall be initiated: (i) through the use of a Request for
Proposal initiated by NCPA, or in response to a Request for Proposal initiated by
a Third Party or Participant, (ii) through use of direct and/or bilateral
negotiations with a Third Party or Participant, or (iii) on a Commission approved
Exchange or Auction. At NCPA’s sole discretion, a Contract Transaction may be
centrally cleared or entered into through the use of a Broker.
6.1 Contract Transaction Subscription Process. To initiate a Contract
Transaction NCPA shall deliver a Participant Authorization for the proposed
1834887.5 25
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Contract Transaction to each Participant who is seeking to transact Approved
Products. Each such Participant Authorization shall be substantially in the form
of Exhibit A, B, C, D or K, as applicable, and shall specify, among other things,
the quantity and price (or not-to-exceed price) for the Approved Product(s)
contemplated to be consummated through a Contract Transaction. Each
Participant shall promptly review such proposed Participant Authorization, and
upon such review may elect to subscribe to a Contract Transaction by delivering
an executed Participant Authorization to NCPA.
6.2 NCPA Obligations. Upon receipt of a duly executed Participant
Authorization, NCPA shall use reasonable efforts to attempt to consummate a
Contract Transaction through use of a corresponding Transaction Instrument, as
specified in a Participant Authorization, on behalf of one or more Participants;
provided, however, that NCPA shall not enter into a Contract Transaction for
any Participant that: (i) has failed to maintain sufficient Security Deposits as
required by Section 9.4, (ii) is otherwise in default under the terms of this
Agreement, or (iii) has not met the Transaction Conditions set forth in Section 4
of this Agreement.
Upon consummation of a Contract Transaction, NCPA shall notify and
report the transaction results to each Participant that has a Subscription
Percentage in said Contract Transaction.
1834887.5 26
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
6.3 Participant Obligations. By executing this Agreement, each
Participant acknowledges and agrees to be bound by their Designated
Representatives’ execution and Principal Counsel’s approval as to form,
procedure and authorization of a Participant Authorization substantially in the
form of Exhibit A, B, C, D or K hereto, as applicable, for each corresponding
Contract Transaction. Each Participant also: (i) acknowledges and approves the
terms of the corresponding Transaction Instrument(s) utilized by NCPA to
consummate a Contract Transaction, and agrees to take any and all actions
necessary for NCPA to comply in a timely manner with any terms and
conditions of said Transaction Instrument(s), (ii) agrees to pay for and take
delivery of its Subscription Percentage share, or to take receipt of payment for
and deliver its Subscription Percentage share of Approved Products, and (iii)
agrees to pay its Subscription Percentage share of all fees, costs, or other amounts
payable in connection with the execution, arrangement, maintenance, and
termination or liquidation of Contract Transactions.
6.4 Subscription Percentages. The Subscription Percentages of each
Participant for each Contract Transaction shall be maintained in NCPA’s Deal
Capture System, and summary reports therefrom will be provided to
Participants upon request.
1834887.5 27
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Section 7. Delivery and Receipt of a Contract Transaction. Approved
Products shall be delivered to or collected from Participants in accordance with
each Participant’s Subscription Percentage of a Contract Transaction.
7.1 Deliveries to Participants. Any Approved Products delivered to
NCPA from a Contract Transaction shall be delivered to each Participant in
proportion to such Participant’s Subscription Percentage, and each Participant
shall accept and pay for its Subscription Percentage share of such Contract
Transaction.
7.2 Delivery from Participants. Any Approved Products delivered by
NCPA to a Third Party from a Contract Transaction shall be supplied by each
Participant in proportion to such Participant’s Subscription Percentage, and each
Participant shall accept payment for its Subscription Percentage share of such
Contract Transaction.
7.3 Failure to Take Delivery or Deliver. To the extent a Participant is
unable to accept delivery of any Approved Products in full, or a Participant is
unable to make delivery of any Approved Products in full, NCPA shall either: (i)
dispose of such surplus Approved Products, in its sole discretion, in such a
manner as to attempt to maximize Participant value, or (ii) purchase an
alternative supply of equivalent Approved Products, in its sole discretion, in
such a manner as to attempt to minimize Participant cost, in order to complete
1834887.5 28
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
full delivery of the Contract Transaction, or terminate the Contract Transaction
with respect to that Participant. If a Participant fails to deliver Approved
Products to NCPA, NCPA, in its sole discretion, may seek to purchase an
alternative supply of Approved Products to deliver Participant’s relevant supply
obligation in full under the Contract Transaction, in such a manner as to attempt
to minimize Participant cost. A Participant that fails to deliver Approved
Products to NCPA in accordance with its Subscription Percentage shall be
responsible for all costs incurred by NCPA in connection with Approved
Products replacement, or Contract Transaction termination, including any
associated Replacement Commodity Costs. If a Participant fails to provide
NCPA with Approved Products in accordance with its Subscription Percentag e,
and NCPA is unable to purchase an equivalent alternative supply of Approved
Products to deliver Participant’s relevant supply obligations in full under the
Contract Transaction, or otherwise terminates the Contract Transaction, all
damages assessed to NCPA that are attributed to Participant’s failure to deliver
the Approved Product will be charged to and paid by that Participant.
7.4 Scheduling. Contract Transactions shall be scheduled for the
Participants in accordance with the Scheduling Protocols.
7.5 REC Transfers. Transferring RECs as required pursuant to a
Contract Transaction made in accordance with the Agreement shall be
1834887.5 29
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
performed in accordance with: (i) the rules and procedures established by
WREGIS, or (ii) the rules and procedures adopted by other commonly accepted
renewable energy generation tracking systems or programs, as applicable.
7.6 GHG Compliance Instrument Transfers. Transferring GHG
Compliance Instruments as required pursuant to a Contract Transaction made in
accordance with the Agreement shall be performed in accordance with: (i) the
Cap and Trade Program, (ii) the Mandatory Reporting Regulations, or (iii) the
rules and procedures adopted by other commonly accepted GHG Compliance
Instrument tracking systems or programs, as applicable.
Section 8. Cooperation and Further Assurances. Each of the Parties agree to
provide such information, execute and deliver any instruments and documents
and to take such other actions as may be necessary or reasonably requested by
any other Party which are not inconsistent with the provisions of this Agreement
and which do not involve the assumption of obligations other than those
provided for in this Agreement, in order to give full effect to this Agreement and
to carry out the intent of this Agreement. Further, the Parties agree to cooperate
and act in good faith in connection with obtaining any credit support required in
order to transact in an Approved Product using a Contract Transaction,
including with respect to negotiating and executing any agreements to
implement any credit support arrangements.
1834887.5 30
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Section 9. Financial Obligations, Invoicing and Security Deposit
Administration.
9.1 Participant Payment Obligations. Each Participant agrees to pay to
NCPA each month the sum of the following:
9.1.1 Estimated Fixed MPP Costs of $900 (estimated Fixed
MPP Costs may be adjusted each Fiscal Year, as approved by the
Commission, during the Annual Budget process); and
9.1.2 One-twelfth (1/12) of Participant’s allocated share of
estimated Variable MPP Costs for the Fiscal Year as determined in Section 9.2;
and
9.1.3 Transaction Specific Costs for each Contract Transaction
in accordance with Participant’s Subscription Percentage share; and
9.1.4 Commodity Costs for each Contract Transaction in
accordance with Participant’s Subscription Percentage share.
In addition to the aforementioned monthly payment obligations, each
Participant is obligated to fund: (i) any and all required Security Deposits
calculated in accordance with Section 9.4, and (ii) the working capital
requirement for the Market Purchase Program maintained by NCPA as set forth
in the Annual Budget.
1834887.5 31
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
9.2 Calculation of Variable MPP Costs. Participants’ payment
obligations for Variable MPP Costs under Section 9.1 shall be calculated as
follows. For each Fiscal Year, NCPA shall estimate the total Variable MPP Costs
to be incurred under this Agreement. A share of the estimated total Variable
MPP Costs will be allocated to each Participant based on each Participant’s
proportionate share of the total Participants’ Contract Transaction volumes for
all Approved Products forecasted to be transacted during the Fiscal Year, as
estimated by NCPA in its sole discretion.
9.3 True-Up of Budgeted vs. Actual Fixed MPP Costs and Variable
MPP Costs. Upon the conclusion of each Fiscal Year, NCPA, as part of its
Annual Budget settlement process, shall compare each Participant’s payment of
estimated Fixed MPP Costs and Variable MPP Costs during the Fiscal Year with
actual Fixed MPP Costs and Variable MPP Costs incurred on behalf of
Participant. Overpayments and/or underpayments of Fixed MPP Costs and
Variable MPP Costs will be credited and/or debited to Participants as directed by
the Commission in the Annual Budget settlement process.
9.4 Security Deposit Requirements. Each Participant agrees that any
funds deposited at NCPA to satisfy Participant’s Security Deposit requirements
pursuant to this Agreement shall be irrevocably committed and held by NCPA in
the General Operating Reserve, and that such funds may be used by NCPA in
1834887.5 32
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
accordance with Section 9.4.4. Each Participant’s Security Deposit will be
accounted separately from and in addition to any other security accounts or
deposits maintained pursuant to any other agreement between NCPA and the
Participant, or any other such security account or deposits required of Members.
In connection with fulfilling the Security Deposit requirements of this
Agreement, Participant may elect to use its uncommitted funds held in the
General Operating Reserve to satisfy in whole or in part its Security Deposit
required under Section 9.4. If Participant chooses to satisfy in whole or in part its
security requirements using its uncommitted funds held in the General
Operating Reserve, Participant is required to execute and deliver to NCPA an
Irrevocable Letter of Direction, as set forth in Exhibit J, directing NCPA to utilize
Participant’s uncommitted General Operating Reserve funds for such purposes,
and the designated funds will thereafter be irrevocably committed and held by
NCPA to satisfy the requirements of this Agreement.
9.4.1 Initial Amounts. Prior to subscribing to a Contract
Transaction a Participant shall insure that sufficient Security Deposit funds
have been deposited with and are held by NCPA equal to the highest three
(3) months of estimated Commodity Costs for all Contract Transactions in
which Participant has or will subscribe to purchase Approved Products, as
estimated by NCPA. Such Security Deposit requirement may be satisfied by
1834887.5 33
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Participant in whole or part either in cash, through irrevocable commitment
of its uncommitted funds held in the General Operating Reserve in
accordance with Section 9.4, or through a clean, irrevocable letter of credit
satisfactory to NCPA’s General Manager. Commodity Revenues resulting
from a Contract Transaction may not be counted against or netted with a
Participant’s Security Deposit requirements; hence Commodity Revenues
may not be used in lieu of Security Deposit funds, or a letter of credit, to
reduce a Participant’s obligations under Section 9.4 of this Agreement.
9.4.2 Additional Security Deposit Amounts. In addition to a
Security Deposit amount equal to the highest three (3) months of estimated
Commodity Costs for all Contract Transactions in which Participant has or
will subscribe, incremental funds may be required from a Participant to
commence a transaction, satisfy a margin call or terminate and liquidate a
Contract Transaction. Prior to executing a Contract Transaction, NCPA’s
Chief Financial Officer, or designee, will notify each subscribing Participant
of the necessary incremental Security Deposit amount to be funded and
deposited with NCPA by inserting such amount in the relevant portion of the
Participant Authorization.
9.4.3 Subsequent Deposits. Periodically, and at least quarterly,
NCPA shall review and revise its estimate of all costs for which Participant
1834887.5 34
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
shall be obligated to pay under this Agreement. Following such review,
NCPA shall determine whether each Participant has a sufficient Security
Deposit balance at NCPA. To the extent that any Participant’s Security
Deposit balance is greater than one hundred and ten percent (110%) of the
amount required herein, NCPA shall credit such amount as soon as
practicable to the Participant’s next following All Resources Bill, or by
separate special invoice. To the extent that any Participant’s Security Deposit
balance is less than ninety percent (90%) of the amount required herein,
NCPA shall add such amount as soon as practicable to such Participant’s next
All Resources Bill, or as necessary, to a special invoice to be paid by
Participant upon receipt. Credits or additions shall not be made to
Participants who satisfy these Security Deposit requirements in whole
through the use of a letter of credit, provided that the amount of the letter o f
credit shall be adjusted, as required from time to time, in a like manner to
assure an amount equal to the highest three (3) months of estimated
Commodity Costs is available to NCPA.
9.4.4 Use of Security Deposit Funds. NCPA may use any and
all Security Deposit funds held by NCPA (or utilize a letter of credit provided
in lieu thereof) to pay any costs it incurs hereunder, including making
payments to counterparties under any Transaction Instrument used to
1834887.5 35
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
consummate a Contract Transaction, replacing Approved Products not
delivered by a Participant that subscribes to a Contract Transaction, or for
termination payments, requests for assurances by Third Parties, credit
support, and related expenses incurred pursuant to a Contract Transaction,
without regard to any individual Participant’s Security Deposit balance or
proportionate share of MPP Costs, and irrespective of whether NCPA has
issued an All Resources Bill or special invoice for such costs to the
Participants or whether a Participant has made timely payments of All
Resources Bills or special invoices. Should Participant have satisfied its
Security Deposit requirements in whole or part through a letter of credit,
NCPA may draw on such letter of credit to satisfy Participant’s obligations
hereunder at NCPA’s sole discretion.
9.4.5 Accounting. If Security Deposit funds or a letter of credit
are used by NCPA to pay any costs it incurs hereunder as described in
Section 9.4.4, NCPA will maintain a detailed accounting of each Participant’s
shares of funds withdrawn, and upon the collection of all or a part of such
withdrawn funds, NCPA will credit back to each non-defaulting Participant
the funds collected in proportion to such non-defaulting Participant’s share of
funds initially withdrawn.
1834887.5 36
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
9.4.6 Emergency Additions. In the event that funds are
withdrawn pursuant to Section 9.4.4, or if the Security Deposit held by NCPA
is otherwise insufficient to allow for NCPA to pay any invoice, demand,
request for further assurances by Third Parties, or Claims, NCPA shall notify
all Participants of the deficiency. In conjunction with such notice, NCPA
shall send a special or emergency assessment invoice to the Participant or
Participants that caused or are otherwise responsible for the deficiency. Each
Participant of such an invoice shall pay to NCPA such assessment when and
if assessed by NCPA within two (2) Business Days of the invoice date of the
assessment, or shall consent to and direct NCPA to draw on any existing
letter of credit Participant has established for such purposes. In the event that
the Participant or Participants that caused or are otherwise responsible for the
deficiency cannot, does not or will not pay to NCPA the special or emergency
assessment within two (2) Business Days of the invoice date, NCPA shall
immediately submit a special or emergency invoice to all remaining
Participants in accordance with Section 14.3.2, and such remaining
Participants shall pay to NCPA such assessment within two (2) Business Days
of the invoice date of the assessment, or shall consent to and direct NCPA to
draw on any existing letter of credit that Participant has established for such
purposes.
1834887.5 37
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
9.4.7 Security Deposit Interest. NCPA shall maintain a
detailed accounting of each Participant’s Security Deposits, and withdrawals
of such funds, held by NCPA. Security Deposits held by NCPA shall be
invested by NCPA in accordance with the General Operating Reserve policies
and investment policies adopted by the NCPA Commission. Interest earned
on the Security Deposit funds shall be proportionately credited to the
Participants in accordance with their weighted average balances held therein.
Any Security Deposit losses caused by early termination of investments shall
be allocated among the Participants in accordance with the General
Operating Reserve provisions and guidelines approved by the Commission,
as the same may be amended from time to time; provided, however, to the
extent that either the General Operating Reserve provisions and guidelines do
not apply or the Security Deposit is not adequate to cover the losses, then
such losses shall be allocated among the Participants in accordance with their
proportionate Security Deposit balances.
9.4.8 Return of Funds. Upon termination or a permitted
withdrawal of a Participant in accordance with this Agreement, the affected
Participant may apply to NCPA for the return of their share of Security
Deposit funds ninety (90) days after the effective date of such termination or
withdrawal. However, NCPA shall, in its sole but reasonable discretion, as
1834887.5 38
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
determined by the NCPA General Manager, estimate the then outstanding
liabilities of the Participant, including any estimated contingent liabilities and
shall retain all such funds, if any, until all such liabilities have been fully paid
or otherwise satisfied in full. After all such liabilities have been satisfied in
full, as determined by NCPA’s General Manager, any remaining balance of
the Participant’s share of the Security Deposit will be refunded to the
Participant within sixty (60) days thereafter
9.5 Contract Transactions Removed from the MPP. Any Contract
Transaction shall no longer be included in the calculation of a Participant’s
obligations set forth in Section 9.1 or the Security Deposit requirements set forth
in Section 9.4 on the date its Transaction Confirmation terminates or expires and
Participant’s obligations under this Agreement attributed to such a Contract
Transaction have been satisfied in full; provided, however, that all other
obligations set forth in this Agreement shall remain effective and applicable to
such Participant, including but not limited to this Agreement’s Indemnity and
Hold Harmless obligation set forth in Section 14.2 and Joint Liability obligation
set forth in Section 14.3.2. All other Contract Transactions shall continue to be
included in the calculation of a Participant’s obligations set forth in Section 9.1
and the Security Deposit requirements set forth in Section 9.4, until such time as
NCPA approves otherwise. NCPA may, in its sole discretion, remove a
1834887.5 39
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Contract Transaction from the calculation of a Participant’s obligations through
alternate means including assignment, book-out, offsetting transaction, or
termination. Any proceeds or costs associated with removing a Contract
Transaction from use in the calculation of Participants’ obligations herein shall
be allocated among the Participants in accordance with their Subscription
Percentages unless otherwise agreed upon in writing by the Participants.
9.6 Invoicing.
9.6.1 Invoices. As part of NCPA’s regular, monthly, advance
billing (the “All Resources Bill”) or by separate special invoice, as required in
the circumstances, NCPA will issue an invoice to each Participant that will
include its Subscription Percentage share of the Commodity Costs,
Commodity Revenues, MPP Costs and Transactions Specific Costs due or
payable (or any adjustments thereto) in accordance with Section 9. Each
invoice shall include, but is not limited to the following:
(i) The total Transaction Specific Costs and Commodity Costs
attributable to Procurement of Approved Products under this Agreement for
such month and the relevant Participant’s share thereof;
(ii) The total Transaction Specific Costs and Commodity
Revenues collected from Selling Approved Products under this Agreement for
such month and the relevant Participant’s share thereof;
1834887.5 40
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
(iii) The total MPP Costs attributable to program services for
such month and the relevant Participant’s share thereof;
(iv) The quantity of Approved Products, by Contract
Transaction, delivered to or supplied from such Participant (or an estimate
thereof) and the unit price for such Approved Products;
(v) Appropriate settlement and meter data (or an estimate
thereof);
(vi) Any adjustments to prior invoices required based on actual
data received that was estimated in a previous invoice;
(vii) Notice of the amount, if any, that NCPA has paid or expects
to pay using Security Deposit funds; and
(viii) Amounts due from (or credited to) such Participant under
Section 9.4.3.
9.6.2 Payment of Invoices. All non-emergency invoices
delivered by NCPA in the normal course of billing hereunder (including the
All Resources Bill and special invoices) are due and payable within thirty (30)
days of the invoice date; provided, however, that any amount due on a day
other than a Business Day may be paid on the following Business Day.
NCPA may apply a Participant’s Security Deposit share to the payment of all
or any portion of an invoice issued to such Participant (including that portion
1834887.5 41
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
of an invoice relating to the MPP), provided that application of such Security
Deposit funds shall not relieve the Participant from any late payment charges
pursuant to Section 9.6.3. To the extent that NCPA applies Security Deposit
funds to pay an amount due under an invoice, following receipt of payment
of such invoice by the relevant Participant, NCPA shall deposit the relevant
portion of the payment to the General Operating Reserve and credit such
Security Deposit to such Participant. Emergency invoices shall be due as
indicated in Section 9.4.6 above.
9.6.3 Late Payments. Any amount due and not paid by a
Participant in accordance with Section 9.6.2 and 9.4.6 shall bear interest
computed on a daily basis until paid at the lesser of: (i) the per annum prime
rate (or reference rate) of the Bank of America NT&SA then in effect, plus two
percent (2%), or (ii) the maximum rate permitted by law.
9.7 Settlement Data and Examination of Books and Records.
9.7.1 Settlement Data. NCPA will make metering and
settlement data available to the Participants, as applicable. Procedures and
formats for the provision of such data will be as established by the NCPA
Commission from time to time.
9.7.2 Examination of Books and Records. Any Participant to
this Agreement shall have the right to examine the books and records created
1834887.5 42
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
and maintained by NCPA pursuant to this Agreement at any reasonable,
mutually agreed upon time.
9.7.3 Revenue Covenant. Any failure of a Participant to meet
its obligations hereunder or to cure such failure in a timely manner shall
constitute an Event of Default and the Defaulting Party shall be subject to
such remedies of NCPA as provided for herein. Each Participant covenants
and agrees:
(i) To continue to pay or advance to NCPA, from its Revenues
only, provided that such sources shall not include any sums derived from
sources the use of which is limited by law to expenditures other than operating
expenses, and its obligations under this Agreement. Each Participant further
agrees that it will fix the rates and charges for services provided by its Electric
System so that it will at all times have sufficient money in its department revenue
funds to meet this obligation;
(ii) To make payments under this Agreement from the
Revenues of, and as an operating expense of, its Electric System;
(iii) To make payments under this Agreement whether or not
there is an interruption in, interference with, or reduction or suspension of
services provided under this Agreement, such payments not being subject to any
reduction, whether by offset or otherwise, and regardless of whether any dispute
1834887.5 43
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
exists provided such interruption, interference or reduction in services is caused
by forces constituting an Act of God and not reasonably contemplated by the
Parties; and
(iv) To operate its Electric System and the business in connection
therewith in an efficient manner and at reasonable cost and to maintain its
Electric System in good repair, working order, and condition.
Section 10. Administration of Agreement.
10.1 General. Except as otherwise specified in this Agreement, the
NCPA Commission has sole overall responsibility and authority for the
administration of this Agreement. Any acts, decisions or approvals taken, made
or sought by NCPA under this Agreement shall be taken, made or sought, as
applicable, in accordance with NCPA’s Constitutive Documents and Section 10.2.
10.2 Action by Participating Members.
10.2.1 Forum. Whenever any action anticipated by this
Agreement is required to be taken by the Participants, such actions shall be
taken at a regular or special meeting of the NCPA Commission, but shall be
participated in only by those Commissioners, or their designated alternates,
who represent Participants.
10.2.2 Quorum. A quorum at NCPA Commission meetings for
purposes of acting upon matters relating to this Agreement shall consist of
1834887.5 44
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Commissioners, or their designated alternates, representing the majority of
Participants to the extent not inconsistent with Section 10.2.3(i), provided that
as to matters related to a specific Contract Transaction a quorum shall consist
of Commissioners, or their designated alternatives, representing a majority
interest in the Contract Transaction based upon their Subscription
Percentages.
10.2.3 Voting. Each Participant shall have the right to cast one
vote with respect to matters pertaining to this Agreement, with a majority
vote of the Participants required for action subject to the following
exceptions:
(i) Upon request of any Participant representative with a
Subscription Percentage in a specific Contract Transaction, the voting on an issue
related to a specific Contract Transaction shall be by Participant Subscription
Percentage with a 65% or more favorable vote necessary to carry the action.
(ii) After any decision related to this Agreement, other than for a
specific Contract Transaction, is taken by the affirmative vote of less than 65% of
the Participants, the action can be reviewed and revised if a Participant gives
notice of intention to seek such review and revision to NCPA and each of the
other Participants within ten (10) days following the date on which such action
was taken. Upon receipt of such a request for reconsideration, the Chairman of
1834887.5 45
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
the Commission shall agendize the matter for reconsideration at the next regular
meeting of the Commission or at a special meeting if the circumstances so
warrant. The action shall be upheld upon a majority vote of the authorized
representatives of the Participants, where each Participant will have the right to
cast one vote as to the matter presented for reconsideration. Any action taken
upon reconsideration shall be final.
Section 11. Admission and Withdrawal of Participants.
11.1 Admission of New Participants. Following the Effective Date of
this Agreement, a Member may execute this Agreement and become a
Participant provided that such joinder is approved by the NCPA Commission in
accordance with Section 10.2, and the new Participant: (i) reimburses existing
Participants for a proportionate share of the applicable costs identified during
NCPA’s Annual Budget process and any MPP Costs incurred to establish and
administer this MPP Program as determined by existing Participants, and (ii)
satisfies all Security Deposit requirements under this Agreement.
A new Participant shall not be entitled to receive any Approved Products
or be obligated to provide any Approved Products in connection with a Contract
Transaction entered into prior to the date it becomes a Participant unless one or
more Allocating Participants formally elect to allocate a portion of its
1834887.5 46
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Subscription Percentage share of an existing Contract Transaction to such new
Participant.
Upon execution of such formal agreement therefore and affirmative vote
thereon by all Allocating Participants, NCPA shall prepare and distribute to each
Participant the written agreement between the new Participant and the
Allocating Participant(s) indicating the agreed upon change in the Subscription
Percentage(s) for the designated Contract Transaction(s), a counterpart of this
Agreement executed by the new Participant, and a report from NCPA’s Deal
Capture System reflecting the revised Subscription Percentages. Any reduction
in any Allocating Participant’s Security Deposit share shall be credited to the
Allocating Participants in accordance with Section 9.4.3.
11.2 Withdrawal of Participants.
11.2.1 Requirements and Process. A Participant may
voluntarily withdraw from this Agreement by providing two (2) years’
advance written notice to NCPA and the other Participants. Notwithstanding
the aforementioned, such Withdrawing Participant’s liability pursuant to
Section 14.3.2 will not be eliminated or reduced after Withdrawing
Participant formally withdraws unless Withdrawing Participant no longer
has a Subscription Percentage in an outstanding Contract Transaction, or
Withdrawing Participant has assigned all its outstanding Contract
1834887.5 47
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Transaction Subscription Percentage to an Adjusting Participant. If
Withdrawing Participant has no Subscription Percentage in an outstanding
Contract Transaction or has otherwise assigned all its outstanding Contract
Transaction Subscription Percentage to an Adjustment Participant, such
Withdrawing Participant shall continue to be considered a non-defaulting
Participant with no outstanding Contract Transactions for the purposes of
Section 14.3.2 from the time Withdrawing Participant provides two (2) years’
advance written notice of its intent to withdraw from this Agreement to the
time that Participant formally withdraws. Upon the mutual agreement of
two or more Participants, the Withdrawing Participant may assign all, or a
portion of, its Subscription Percentage share of its Contract Transactions to an
Adjusting Participant, if such withdrawal and assignment does not violate
any applicable credit support conditions contained in any of the relevant
agreements to which the Withdrawing Participant and/or Adjusting
Participant is a party. The Withdrawing Participant shall provide to NCPA
the applicable assignment agreement between the Withdrawing Participant
and the Adjusting Participant(s) regarding any such assignments and NCPA
shall reflect the change in its Deal Capture System recording the new
allocation of Subscription Percentages.
1834887.5 48
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
11.2.2 Associated Costs. A Withdrawing Participant shall
reimburse NCPA for any and all costs resulting from the withdrawal,
including but not limited to the legal, accounting, and administrative costs of
winding up and assuring the complete satisfaction and discharge of the
Withdrawing Participant’s obligations. A Withdrawing Participant will
continue to be liable for all Contract Transactions entered into on its behalf,
including all Security Deposit requirements set forth in Section 9.4, that are
not otherwise assumed by an Adjusting Participant.
11.2.3 No Effect on Prior Liabilities. Withdrawal by any
Participant will not terminate any ongoing or un-discharged contingent
liabilities or obligations resulting from this Agreement until they are assigned
to an Adjusting Participant, or are otherwise satisfied in full, or such
Withdrawing Participant has provided a mechanism reasonably acceptable to
NCPA and the remaining Participants, for the satisfaction in full thereof.
Section 12. Term and Termination. The Term of this Agreement shall
commence on the Effective Date, and shall continue through the end of the then
current Fiscal Year plus five (5) years (the “Initial Term”), so the Initial Term of
this Agreement is coincident with the Fiscal Year. After the Initial Term has
expired, this Agreement shall remain in effect until NCPA terminates this
Agreement upon two (2) years’ advance written notice to all Participants.
1834887.5 49
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Section 13. Default and Remedies.
13.1 Events of Default. An Event of Default under this Agreement shall
exist upon the occurrence of any one or more of the following by a Party in
default of its obligations hereunder (“Defaulting Party”):
13.1.1 If any Party fails to make any payment or to provide
assurances as required pursuant to this Agreement or to a Contract
Transaction when due hereunder within two (2) Business Days after receipt
of notice given by NCPA of such non-payment; or
13.1.2 The failure of the Defaulting Party to perform any other
covenant or obligation under this Agreement where such failure is not cured
within ten (10) calendar days following receipt of a notice from NCPA
demanding cure (provided that this shall not apply to any failure to make
payments (which is covered by Section 13.1.1); or
13.1.3 If any representation or warranty of the Defaulting Party
material to the transactions contemplated hereby shall prove to have been
incorrect in any material respect when made and the Defaulting Party does
not cure the facts underlying such incorrect representation or warranty so
that the representation or warranty becomes true and correct within ten (10)
calendar days of the date of receipt of notice from any other Party demanding
cure; or
1834887.5 50
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
13.1.4 If a Participant is in default or in breach of any of its
covenants under any other agreement with NCPA and such default or breach
is not cured within the time periods specified in such agreement; or
13.1.5 The failure of NCPA to perform any covenant or
obligation under this Agreement following a ten (10) calendar day notice to
cure by any non-defaulting Participant.
13.2 Cure of an Event of Default. An Event of Default shall be deemed
cured only if such default shall be remedied within the time period specified in
Section 13.1, above, as may be applicable, after written notice has been sent to the
Defaulting Party from NCPA specifying the default and demanding that the
same be remedied; provided, however, that failure of a Party to provide such
notice shall not be deemed a waiver of such default.
13.3 Participation Rights Of 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 10.2 on any matters with
respect to this Agreement.
13.4 Remedies in the Event of Default.
13.4.1 Remedies of NCPA. Upon the occurrence of an Event of
Default where a Participant is the Defaulting Party, without limiting its other
1834887.5 51
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
rights or remedies available under this Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action NCPA may have against the Defaulting Party
Participant, NCPA may:
(i) Suspend the provision of services under this Agreement to
such Defaulting Party, including the delivery or sale of Approved Products
pursuant to any Contract Transactions until the Event of Default is cured; and
(ii) Demand that the Defaulting Party provide further
assurances to compel the correction of the default, including the collection of a
surcharge, or such other actions as may be necessary to produce Revenues to
secure the cure of the Event of Default; and
(iii) Terminate this Agreement as to the Defaulting Party, on ten
(10) calendar days’ prior written notice to the Defaulting Party and following
approval of the non-defaulting Participants.
13.4.2 Sale/Transfer of Participants Account Upon Default.
Upon any default of a Participant caused by the failure of such Participant to
pay any sums due, and provided that such default is not cured in a timely
manner, then NCPA shall use its best efforts to sell and transfer for the
Defaulting Party’s account all or a portion of the Defaulting Party’s Contract
Transactions for the remainder of the term of this Agreement.
1834887.5 52
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Notwithstanding that all or any portion of the Defaulting Party’s Contract
Transactions is so sold or transferred, the Defaulting Party shall remain liable
for all of its obligations not otherwise satisfied by the sale or transfer of
Defaulting Party’s Contract Transactions hereunder unless released
therefrom by NCPA upon assumption by a transferee or assignee.
13.4.3 Remedies of Participants. Upon the occurrence of an
Event of Default where NCPA is the Defaulting Party, and following the
applicable cure periods, the Participants may, without limiting their other
rights or remedies available under this Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right,
action or cause of action the Participants may have against NCPA, terminate
this Agreement in whole, subject to the provisions of Section 13.5.4.
13.4.4 Special Covenants Regarding Security Deposit. In the
event that a Participant’s Security Deposit balance is insufficient to cover all
invoices for costs incurred under this Agreement sent to such Participant,
then, without limiting NCPA’s other rights or remedies available under this
Agreement, at law or in equity, such Participant shall cooperate in good faith
with NCPA and shall cure the default as rapidly as possible, on an emergency
basis, taking all such action as is necessary, including, but not limited to,
raising rates and charges to its customers to increase its Revenues to replenish
1834887.5 53
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
its share of the Security Deposit requirements as provided herein, drawing on
its cash-on-hand and lines of credit, obtaining further assurances by way of
credit support and letters of credit, and taking all such other action as will
cure the default with all due haste.
13.5 Effect of Termination or Suspension.
13.5.1 Generally. The suspension or termination of this
Agreement will not terminate, waive, or otherwise discharge any ongoing or
undischarged contingent liabilities or obligations arising from this Agreement
until such obligations are satisfied in full, and all of the costs incurred by
NCPA in connection with such suspension or termination, including
reasonable attorney fees, the fees and expenses of other experts, including
auditors and accountants, other costs and expenses that NCPA is entitled to
recover under this Agreement, and other reasonable and necessary costs
associated with any and all of the remedies, are paid in full.
13.5.2 Suspension by NCPA. If performance of all or any
portion of this Agreement is suspended by NCPA with respect to a
Participant in accordance with Section 13.4.1(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
1834887.5 54
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
with such suspension and any portion of the MPP Costs that were not
recovered from such Participant as a result of such suspension.
13.5.3 Termination by NCPA. If this Agreement is terminated
by NCPA with respect to a Participant in accordance with Section 13.4.1(iii),
such Participant shall pay any and all costs incurred by NCPA as a result of
such termination, including reasonable attorney fees, the fees and expenses of
other experts, including auditors and accountants, other reasonable and
necessary costs associated with such termination and any portion of the MPP
Costs that were not, or will not be, recovered from such Participant as a result
of such termination; provided, however, if NCPA terminates this Agreement
with respect to the last Participant, then this Agreement shall terminate.
13.5.4 Termination by Participants. If this Agreement is
terminated by all Participants in accordance with Section 13.4.3, or by
unanimous consent of all of the Parties hereto, then the Participants shall pay
to NCPA all previously unpaid MPP Costs incurred as of the date of such
termination, and following such termination, the Participants shall cooperate
and act in good faith to negotiate and agree upon the method of allocating
among the Participants in proportion to their respective Subscription
Percentages the costs and benefits of the Contract Transactions, all
Transaction Instruments then in effect, and any financing agreements or
1834887.5 55
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
commitments and any matters pertaining to the administration, management,
control, operation and maintenance of the Contract Transactions. NCPA shall
reasonably cooperate with the Participants in connection with implementing
the foregoing and the Participants shall indemnify NCPA for any costs
incurred in connection therewith, including reasonable attorney fees, fees and
expenses of other experts, including auditors and accountants and other
reasonable and necessary costs. If the parties are unable to reach agreement
as to the foregoing, then the parties agree to submit the matter to mediation
with a mutually agreed upon mediator. If the parties are still unable to reach
agreement following mediation, then the matter shall be submitted to binding
arbitration subject to the rules of the American Arbitration Association, the
costs of such arbitration being borne proportionally among the Participants.
Section 14. Miscellaneous.
14.1 Confidentiality. The Parties will keep confidential all confidential
or trade secret information made available to them in connection with this
Agreement, to the extent possible, consistent with applicable laws, including the
California Public Records Act. It shall be the responsibility of the holder of the
claim of confidentiality or trade secret to defend at its expense against any
request that such information be disclosed. Confidential or trade secret
information shall be marked or expressly identified as such.
1834887.5 56
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
14.2 Indemnification and Hold Harmless. Subject to the provisions of
Section 14.4, each Participant agrees to indemnify, defend and hold harmless
NCPA and its Members, including their respective governing officials, officer s,
agents, and employees, from and against any and all claims, suits, losses, costs,
damages, expenses and liability of any kind or nature, including reasonable
attorneys’ fees and the costs of litigation, including experts (“Claims”), to the
extent caused by any acts, omissions, breach of contract, negligence (active or
passive), gross negligence, recklessness, or willful misconduct of a Participant, its
governing officials, officers, employees, subcontractors or agents, to the
maximum extent permitted by law.
14.3 Several Obligations and Joint Liabilities.
14.3.1 Several Obligations. No Participant shall, in the first
instance, be liable under this Agreement for the obligations of any other
Participant or for the obligations of NCPA incurred on behalf of other
Participants. Each Participant shall be solely responsible and liable for
performance of its obligations under this Agreement, except as otherwise
provided for herein. The obligation of each Participant under this Agreement
is, in the first instance, a several obligation and not a joint obligation with
those of the other Participants.
1834887.5 57
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Notwithstanding the foregoing, the Participants acknowledge
that any debts or obligations incurred by NCPA under this Agreement on
behalf of any of them shall be borne solely by such Participants, and not by
non-Participant Members of NCPA, pursuant to Article IV, Section 3(b) of the
Joint Powers Agreement.
14.3.2 Joint Liabilities. Notwithstanding the provisions of the
Joint Powers Agreement and the general nature of the liabilities in this
Agreement as several, the Participants agree that, if a Participant defaults
under this Agreement, the non-defaulting Participants will be jointly liable
for the obligations of such defaulting Participant in proportion to each non-
defaulting Participant’s share of the total cost of all outstanding Contract
Transactions entered into by all non-defaulting Participants during the five
(5) years prior to the date of the default, unless and until NCPA is able to
fully recover from the defaulting Participant. Provided, however, that any
non-defaulting Participant with no outstanding Contract Transactions for the
five (5) years prior the date of the default shall nonetheless have an obligation
equal to one-half (1/2) that of the non-defaulting Participant with the lowest
outstanding Contract Transactions during such five (5) year period, and that
if no non-defaulting Participant has outstanding Contract Transactions
during such five (5) year period, then each non-defaulting Participant shall
1834887.5 58
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
share the obligation equally. In the event that the date of default occurs
within five (5) years of the Effective Date, then such five (5) year period shall
be shortened to include the time from the effective date of this Agreement
until the date of the default.
14.3.3 Non-Defaulting Participant Rights as to Defaulting
Participant. Should NCPA impose joint liability in accordance with Section
14.3.2, this Agreement shall in no way limit, restrict or preclude a non-
defaulting Participant from independently seeking equitable contribution, at
its sole expense, from any defaulting Participant.
14.4 No Consequential Damages. FOR ANY BREACH OF ANY
PROVISION OF THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED IN THIS AGREEMENT, THE
LIABILITY OF THE DEFAULTING PARTY SHALL BE LIMITED AS SET
FORTH IN SUCH PROVISION, AND ALL OTHER DAMAGES OR REMEDIES
ARE HEREBY WAIVED. IF NO REMEDY OR MEASURE OF DAMAGE IS
EXPRESSLY PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY
SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER
DAMAGES AND REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL
NCPA OR ANY PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS,
ASSIGNS, REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR
1834887.5 59
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
EMPLOYEES BE LIABLE FOR ANY LOST PROFITS, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR INCIDENTAL LOSSES OR
DAMAGES, INCLUDING LOSS OF USE, LOSS OF GOODWILL, LOST
REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NCPA AND EACH PARTICIPANT EACH HEREBY WAIVES SUCH
CLAIMS AND RELEASES EACH OTHER AND EACH OF SUCH PERSONS
FROM ANY SUCH LIABILITY.
The Parties acknowledge that California Civil Code section 1542 provides
that: “A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her settlement
with the debtor.” The Parties waive the provisions of section 1542, or other
similar provisions of law, and intend that the waiver and release provided by
this section of this Agreement shall be fully enforceable despite its reference to
future or unknown claims.
14.5 Amendments.
14.5.1 Amendments in General. Except where this Agreement
specifically provides otherwise, this Agreement may be amended only by
1834887.5 60
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
written instrument executed by the Parties with the same formality as this
Agreement.
14.5.2 Approval and Amendment of Exhibits. Notwithstanding
the provisions of Section 14.5.1, any addition to, amendment to or termination
of the Exhibits attached hereto shall take effect after being approved by the
Commission in a manner consistent with the voting procedures set forth in
Section 10.2.3 of this Agreement, without the requirement of an approval of
the individual Participants governing body.
14.6 Severability. In the event that any of the terms, covenants or
conditions of this Agreement or the application of any such term, covenant or
condition, shall be held invalid as to any person or circumstance by any court
having jurisdiction, all other terms, covenants or conditions of this Agreement
and their application shall not be affected thereby, but shall remain in force and
effect unless the court holds that such provisions are not severable from all other
provisions of this Agreement.
14.7 Governing Law. This Agreement shall be interpreted, governed by,
and construed under the laws of the State of California.
14.8 Headings. All indices, titles, subject headings, section titles and
similar items are provided for the purpose of convenience and are not intended
1834887.5 61
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
to be inclusive, definitive, or affect the meaning of the contents of this Agreement
or the scope thereof.
14.9 Notices. Any notice, demand or request required or authorized by
this Agreement to be given to any Party shall be in writing, and shall either be
personally delivered to a Participant’s Designated Representative and the
Secretary of the Commission or transmitted to the Participant and the Secretary
of the Commission at the address shown on the signature pages hereof. The
designation of such address may be changed at any time by written notice given
to the Secretary of the Commission who shall thereupon give written notice of
such change to each Participant.
14.10 Warranty of Authority. Each Participant, and NCPA, represents
and warrants that it has been duly authorized by all requisite approval and
action to execute and deliver this Agreement and that this Agreement is a
binding, legal, and valid agreement enforceable in accordance with its terms as to
the Participant and as to NCPA. Upon execution of this Agreement, each
Participant shall deliver to NCPA a resolution of the governing body of such
Participant evidencing approval of and authority to enter into this Agreement
and an opinion of legal counsel that such authority was duly exercised in
accordance with such Participant’s Constitutive Documents.
1834887.5 62
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
14.11 Counterparts. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect
as an original instrument and as if all the signatories to all of the counterparts
had signed the same instrument. Any signature page of this Agreement may be
detached from any counterpart of this Agreement without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart of
this Agreement identical in form hereto but having attached to it one or more
signature pages.
14.12 Assignment. Except as provided by Section 11 no Participant may
assign or otherwise transfer their interest in their Subscription Percentage, or any
other rights and obligations under this Agreement, without the express written
consent of NCPA.
14.13 Venue. In the event that a Party brings any action under this
Agreement, the Parties agree that trial of such action shall be vested exclusively
in the state courts of California in the County of Placer or in the United States
District Court for the Eastern District of California.
14.14 Attorneys’ Fees. If a Party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provision of
this Agreement, the prevailing Party shall be entitled to reasonable attorneys’
fees in addition to any other relief to which that Party may be entitled. The court
1834887.5 63
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
may set such fees in the same action or in a separate action brought for that
purpose.
14.15 Interpretation. Each Party to this Agreement is sophisticated in the
operation of its respective Electric System, and in the purchasing and selling of
Approved Products. Each Party to this Agreement was represented by counsel
during the negotiation of this Agreement. Hence, this Agreement shall be
interpreted as being equally drafted by all Parties and without reference to Civil
Code Section 1654 requiring interpretation against Parties causing an ambiguity.
14.16 No Third Party Beneficiaries. Nothing contained in this Agreement
is intended by the Parties, nor shall any provision of this Agreement be deemed
or construed by the Parties or by any third person, to be for the benefit of any
Third Party, nor shall any Third Party have any right to enforce any provision of
this Agreement or be entitled to damages for any breach by the Parties of any of
the provisions of this Agreement.
14.17 List of Exhibits. The Exhibits referenced herein shall be denoted as
follows:
Exhibit A: Participant Authorization – Energy
Exhibit A-1: Additional Transaction Terms and Conditions - Energy
Exhibit B: Participant Authorization – RECs
Exhibit B-1: Additional Transaction Terms and Conditions – RECs
1834887.5 64
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
Exhibit C: Participant Authorization – Resource Adequacy Capacity
Exhibit C-1: Additional Transaction Terms and Conditions – Resource
Adequacy Capacity
Exhibit D: Participant Authorization – GHG Compliance Instruments
Exhibit D-1: Additional Transaction Terms and Conditions – GHG
Compliance Instruments
Exhibit E: NCPA Commission-Approved Master Agreements
Exhibit F: NCPA Commission-Approved Bilateral Agreements
Exhibit G: NCPA Commission-Approved Exchanges
Exhibit H: NCPA Commission-Approved Auctions
Exhibit I: NCPA Commission-Approved Brokers
Exhibit J: Irrevocable Letter of Direction – Market Purchase Program
Exhibit K: Participant Authorization – Low Carbon Fuel Standard
Credits
Exhibit K-1: Additional Transaction Terms and Conditions – Low
Carbon Fuel Standard Credits
IN WITNESS WHEREOF, each Participant has executed this Agreement
with the approval of its governing body, and NCPA has authorized this
Agreement in accordance with the authorization of its Commission.
NORTHERN CALIFORNIA
CITY OF ALAMEDA
POWER AGENCY
2000 Grand Street
651 Commerce Drive
Alameda, CA 94501
Roseville, CA 95678
By: Ca By:
Title: GeneralManager Title:
Date: ^iDate:
^.
Approved as to form:
Approved as to form:
By: ^^ By:
Its: General Counsel
Its:
Date: Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
65
IN WITNESS WHEREOF, each Participant has executed this Agreement
with the approval of its governing body, and NCPA has authorized this
Agreement in accordance with the authorization of its Commission.
NORTHERN CALIFORNIA
CITY OF ALAMEDA
POWER AGENCY
2000 Grand Street
651 Commerce Drive
Alameda, CA 94501
Roseville, CA 95678
By: = G =ir^r^I lag///uhie%,U)
Title:General Manager Title: 6-aoi 4/ /7hfil dz TZ -
Date: Date: V &/ 26 /267/2_
Approved as to form:
Approved as to form:
By: By:7 Al..ter-e-
ns:General Counsel Its: 1 774-/e,l/F`-/
Date: Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
65
CITY OF BIGGS
465 "C" Street
Biggs, CA 95917
CITY OF GRIDLEY
685 Kentucky Street
Gridley, CA 95948
By:
Title:
Date:
By:
Title:
Date: 7—/Z —/Z
Approved as to forne/
Approved as to form:
By: // , ' By:
Its: ` 017 A H ori Its:
Date: -7/73/1 a— Date:
CITY OF HEALDSBURG
CITY OF LODI
401 Grove Street
221 W. Pine Street
Healdsburg, CA 95448
Lodi, CA 95240
By: By:
Title: Title:
Date: Date:
Approved as to form:
Approved as to form:
By: By:
Its: Its:
Date: Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
66
CITY OF BIGGS
465 "C" Street
Biggs, CA 95917
By:
Title:
Date:
CITY OF GRIDLEY
685 Kentucky Street
Gridley, CA 95948
Approved as to form:
Approved as to form:
Lflj L17 ;r>
By: NiUrn ekv-By:
Its: Its:
Date: Date:
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
CITY OF LODI
221 W. Pine Street
:Lodi, CA 95240
By: By:
Title: Title:
Date: Date:
Approved as to form:
Approved as to form:
By: By:
Its: Its:
Date: Date:
1834887.5
66
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF BIGGS
CITY OF GRIDLEY
465 "C" Street
685 Kentucky Street
Biggs, CA 95917
Gridley, CA 95948
By: By:
Title: Title:
Date: Date:
Approved as to form:
Approved as to form:
By: By:
Its: Its:
Date: Date:
CITY OF HEALDSBURG
CITY OF LODI
401 Grove Street
221 W. Pine Street
H- ldsburg, CA •'' 448
Lodi, CA 95240
Approved as to form:
Its: (-141 v ^ h-z-4
Date: t-c t, , Q
By:
Title:
Date:
Approved as to form:
By:
Its:
Date:
1834887.5
66
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF BIGGS
CITY OF GRIDLEY
465 "C" Street
685 Kentucky Street
Biggs, CA 95917
Gridley, CA 95948
By: By:
Title: Title:
Date: Date:
Approved as to form:
Approved as to form:
By: By:
Its: Its:
Date: Date:
CITY OF HEALDSBURG
CITY OF LODI
401 Grove Street
221 W. Pine Street
Healdsburg, CA 95448
Lodi, CA 95240
By: By: Konradt Bartlam
Title: Title: City Manager
Date: Date: e-13^a
Approved as to form:
By:
Its:
Date:
h IabauerBy: ephen
Its: City Attorney
Date:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
66
CITY OF UKIAH
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
CITY
[City,
[Address]
[Telephone]
[Facsimile]
OF LOMPOC
State, Zip]
q1''?'\-
-
By:
?01t,/z,
/
f ./ 4 4
Title:
Date:
-2/25-! .^
(-,-) ,-t,o ..^ By:
Its: Attorney Its: Attorney
Date: /,W/(a Date:
By:
Title:
Date:
Approved as to form:
Approved as to form:
1834887.5
67
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
CITY OF LOMPOC
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
CITY OF UKIAH
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By: By/ Jane Chambers
Title: Till : City M j ager j
Date: Date: /?-f- h 2--I
Approved as to form:
Approved - to form:
g
By:
'-'-easi!I!
VA!
By: Da apport
Its: Att Its:City of Ukiah Attorney
Date: Date: 6 /z-5 f !'Z
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
67
CITY OF LOMPOC
CITY OF UKIAH
100 Civic Center Plaza
300 Seminary Avenue
Lompoc, CA 93436
Ukiah, CA 95482
By: By:
Title: Title:
Date: Date:
Approved as to form:
Approved as to form:
By: By:
Its: Its:
Date: Date:
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT
300 Lakeside, 16 th Floor
Oakland, CA 94612
By: G
Y (Xre Cdry') C-a,Y-
.eY
Date: /)oI)z.--
By: abGomet
Its:
Date: '((1- nJ
Approved as to form:
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
1834887.5
67
IN WITNESS WHEREOF, each Participant has executed this Agreement with the
approval of its governing body, and NCP A has authorized this Agreement in
accordance with the authorization of its Commission.
CITY OF OAKLAND, acting
by and through its
Board of Port Commissioners
530 Water Street
Oakland, CA 94607
By~
Title: Executive Director
Date: _____________ _
Approved as to form:
By : Michele Heffes _____________ _
Its: General Counsel
Date: ____________ _
1834887.5 65
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
PA#: 2020 - 179
PORT RESOLUTION NO.: 20-30
4/29/2020
A
1834887.5
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
IN WITNESS WHEREOF, each Participant has executed this Agreement with the
approval of its governing body, and NCPA has authorized this Agreement in
accordance with the authorization of its Commission.
CITY OF PALO ALTO
250 Hamilton Avenue
Palo Alto, CA 94301
_____________________________________
By: Ed Shikada________________________
Title: City Manager_____________________
Date: _________________________________
Approved as to form:
_____________________________________
By: Amy Bartell_______________________
Its: City Attorney______________________
Date: ________________________________
DocuSign Envelope ID: BA38140C-737A-42DA-B103-53826A17C071
7/1/2020
7/1/2020
EXHIBIT A
1834887.5 A-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
PARTICIPANT AUTHORIZATION – ENERGY
The undersigned Participant hereby subscribes to the following Contract
Transaction and agrees to transact Energy designated as an Approved Product
pursuant to the Amended and Restated Market Purchase Program Agreement
and the Transaction Instrument designated below, supplemented and modified
as follows:
(a) Seller:
(b) Purchaser:
(c) Period of Delivery: Beginning ________________ Ending _______________
(d) Schedule (Days and Hours): ______________________
(e) Maximum Delivery Rate: ______________________
(f) Delivery Point(s): ______________________
(g) Type of Product: ______________________
(h) Contract Quantity: ______MWhrs / MW
(i) Contract Price: See Attachment A-1
(j) Transmission Path for the Transaction: _______________________
(k) Form of Transaction Instrument: ________________________
(l) Special Terms and Exceptions: See Attachment A -1
(m) Security Deposit Amount Required ___________________
(n) Transfer from GOR __________
(o) Pay by Check or Wire (specify) _________
Except to the extent herein provided for, no amendment or modification
to the Agreement shall be enforceable unless reduced to writing and executed by
both Parties. Those persons executing this Participant Authorization and the
Parties hereby warrant that they are authorized to do so.
Participant
By:
Designated Representative
Date:
Approved as to Legal Form,
Procedure and Authorization
By:
Principal Counsel
EXHIBIT A-1
1834887.5 A-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
ATTACHMENT A-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
ENERGY
(Attach Buyer’s/Seller’s completed Attachment A-1 to the Participant Authorization)
EXHIBIT B
1834887.5 B-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
PARTICIPANT AUTHORIZATION – RECs
The undersigned Participant hereby subscribes to the following Contract Transaction and agrees
to transact RECs designated as an Approved Product pursuant to the Amended and Restated Market
Purchase Program Agreement and the Transaction Instrument designated below, supplemented and
modified as follows:
(a) Seller:
(b) Purchaser:
(c) Type of REC: ________________
(d) Applicable Program: ___________________
(e) Product Type: _________________
(f) Certifier: ________________
(g) Contract Quantity: _______MWhrs/ _________RECs
(h) Vintage: _______________
(i) Reporting Year: _____________
(j) Renewable Energy Resource (if applicable): _______________
(k) Resource Type (if applicable): _______________
(l) Contract Price: See Attachment B-1
(m) Delivery Term: Beginning ____________ Ending _____________
(n) Alternate Payment Terms: See Attachment B-1
(o) Allocation of Change in Law Risk: _____________________
(p) Delivery Point: __________________
(q) Alternate Title Transfer: ___________________
(r) Form of Transaction Instrument: ________________________
(s) Special Terms and Exceptions: See Attachment B -1
(t) Security Deposit Amount Required ___________________
(u) Transfer from GOR ______
(v) Pay by Check or Wire (specify) _____
Except to the extent herein provided for, no amendment or modification to the Agreement shall
be enforceable unless reduced to writing and executed by both Parties. Those persons executing this
Participant Authorization and the Parties hereby warrant that they are authorized to do so.
Participant
By:
Designated Representative
Date:
Approved as to Legal Form,
Procedure and Authorization
By:
Principal Counsel
EXHIBIT B-1
1834887.5 B-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
ATTACHMENT B-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
RECs
(Attach Buyer’s/Seller’s completed Attachment B-1 to the Participant Authorization)
EXHIBIT C
1834887.5 C-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
PARTICIPANT AUTHORIZATION – RESOURCE ADEQUACY CAPACITY
The undersigned Participant hereby subscribes to the following Contract Transaction
and agrees to transact Resource Adequacy Capacity designated as an Approved Product
pursuant to the Amended and Restated Market Purchase Program Agreement and the
Transaction Instrument designated below, supplemented and modified as follows:
(a) Seller:
(b) Purchaser:
(c) Period of Delivery: Beginning ____________ Ending _____________
(d) Contract Quantity NQC: ______MW
(e) Resource Name: ______________________
(f) CAISO Resource ID: ____________________
(g) Resource Type: _________________
(h) Resource Category (if applicable): _______________
(i) Delivery Point(s): __________________
(j) Path 26 (North, South or None): ________________
(k) Local Area/System Capacity: ________________
(l) Deliverability/NQC Restrictions: See Attachment C-1
(i) Contract Price: See Attachment C-1
(j) Transmission Path for the Transaction: _______________________
(k) Form of Transaction Instrument: ________________________
(l) Special Terms and Exceptions: See Attachment C-1
(m) Security Deposit Amount Required ___________________
(n) Transfer from GOR ______
(o) Pay by Check or Wire (specify) _____
Except to the extent herein provided for, no amendment or modification to the
Agreement shall be enforceable unless reduced to writing and executed by both Parties.
Those persons executing this Participant Authorization and the Parties hereby warrant that
they are authorized to do so.
Participant
By:
Designated Representative
Date:
Approved as to Legal Form,
Procedure and Authorization
By:
Principal Counsel
EXHIBIT C-1
1834887.5 C-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
ATTACHMENT C-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
RESOURCE ADEQUACY CAPACITY
(Attach Buyer’s/Seller’s completed Attachment C-1 to the Participant Authorization)
EXHIBIT D
1834887.5 D-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
PARTICIPANT AUTHORIZATION – GHG COMPLIANCE INSTRUMENTS
The undersigned Participant hereby subscribes to the following Contract Transaction and agrees
to transact GHG Compliance Instruments designated as an Approved Product pursuant to the Amended
and Restated Market Purchase Program Agreement and the Transaction Instrument de signated below,
supplemented and modified as follows:
(a) Seller:
(b) Purchaser:
(c) Type of GHG Compliance Instrument: ________________
(d) Applicable Program: ___________________
(e) Issuing Body: _________________
(f) Certifier: ________________
(g) Contract Quantity: _______Compliance Instrument
(h) Vintage: _______________
(i) Reporting Year: _____________
(j) Source (if applicable): _______________
(k) Resource Type (if applicable): _______________
(l) Contract Price: See Attachment D-1
(m) Delivery Term (if applicable): Beginning ____________ Ending _____________
(n) Alternate Payment Terms: See Attachment D-1
(o) Allocation of Change in Law Risk (if applicable): _____________________
(p) Delivery Point (if applicable): __________________
(q) Special Terms and Exceptions: See Attachment D-1
(r) Security Deposit Amount Required: ___________________
(s) Transfer from GOR: ______
(t) Pay by Check or Wire (specify): _____
(u) Bid Guarantee Security Amount Required (if Applicable): ___________
Except to the extent herein provided for, no amendment or modification to the Agreement shall
be enforceable unless reduced to writing and executed by both Parties. Those persons executing this
Participant Authorization and the Parties hereby warrant that they are authorized to do so.
Participant
By:
Designated Representative
Date:
Approved as to Legal Form,
Procedure and Authorization
By:
Principal Counsel
EXHIBIT D-1
1834887.5 D-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
ATTACHMENT D-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
GHG COMPLIANCE INSTRUMENTS
(Attach Buyer’s/Seller’s completed Attachment D-1 to the Participant Authorization)
EXHIBIT E
1834887.5 E-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
NCPA COMMISSION APPROVED MASTER AGREEMENTS
This Exhibit E contains the list of Commission approved Master
Agreements that may properly be used as Transaction Instruments to
consummate Contract Transactions pursuant to Section 5.1.1 of this Agreement.
1. EDISON ELECTRIC INSTITUE (EEI) MASTER POWER PURCHASE &
SALE AGREEMENT VERSION 2.1 (MODIFIED 4/25/00); INCLUDING
NCPA PREFERRED TERMS
a. INCLUDING CONFIRMATION FOR RESOURCE ADEQUACY
CAPACITY PRODUCT
b. INCLUDING RENEWABLE ENERGY CERTIFICATES ANNEX
2. WSPP AGREEMENT, AS MOST RECENTLY AMENDED AT THE TIME
OF THE TRANSACTION
a. INCLUDING CONFIRMATION FOR RESOURCE ADEQUACY
CAPACITY PRODUCT
b. INCLUDING SERVICE SCHEDULE R (RENEWABLE ENERGY
CERTIFICATE TRANSACTIONS WITH AND WITHOUT
ENERGY)
EXHIBIT F
1834887.5 F-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
NCPA COMMISSION APPROVED BILATERAL AGREEMENTS
This Exhibit F contains the list of Commission approved Bilateral
Agreements that may properly be used as Transaction Instruments to
consummate Contract Transactions pursuant to Section 5.1.2 of this Agreement.
1. NONE
EXHIBIT G
1834887.5 G-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
NCPA COMMISSION APPROVED EXCHANGES
This Exhibit G contains the list of Commission approved Exchanges that
may properly be used to consummate Contract Transactions pursuant to Section
5.1.3.
1. NEW YORK MERCANTILE EXCHANGE (“NYMEX”)
2. INTERCONTINENTAL EXCHANGE (“ICE”)
EXHIBIT H
1834887.5 H-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
NCPA COMMISSION APPROVED AUCTIONS
This Exhibit H contains the list of Commission approved Auctions that
may properly be used to consummate Contract Transactions pursuant to Section
5.1.4.
1. California Air Resources Board (“CARB”) Administered Cap and Trade
Program Allowance Auctions and Reserve Auctions
EXHIBIT I
1834887.5 I-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
NCPA COMMISSION APPROVED BROKERS
This Exhibit I contains the list of Commission approved Brokers that may
be used to consummate Contract Transactions.
1. Approved brokers registered in the Low Carbon Fuel Standard Reporting
Tool and Credit Bank and Transfer System (“LRT-CBTS”); provided,
however, any associated brokerage agreement(s) that may be used by
NCPA to transact Local Carbon Fuel Standard Credits with an approved
broker shall be reviewed and approved by NCPA’s General Counsel.
EXHIBIT J
1834887.5 J-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
IRREVOCABLE LETTER OF DIRECTION
MARKET PURCHASE PROGRAM
To: Chief Financial Officer, Northern California Power Agency
From: _____________________________________
Name of Participant (“Participant”)
Subject: IRREVOCABLE LETTER OF DIRECTION
I hereby certify that I have been duly authorized on behalf of Participant’s
governing body to irrevocably authorize and direct Northern California Power
Agency (“NCPA”) to pay any and all obligations incurred by NCPA on behalf of
Participant, as a Party to the AMENDED AND RESTATED MARKET
PURCHASE PROGRAM AGREEMENT, as the same may be amended from time
to time, from any funds held by NCPA for such purposes, including any funds
held and committed in Participant’s General Operating Reserve account as
security deposits for such obligations.
Authorized, Approved, and
Directed by: _________________________________ Date: _________
Designated Representative
Approved As to Legal Form, Procedure and Authorization:
______________________________ Date: _________
Principal Counsel
EXHIBIT K
1834887.5 K-1
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
PARTICIPANT AUTHORIZATION – LOW CARBON FUEL STANDARD CREDITS
The undersigned Participant hereby subscribes to the following Contract Transaction and agrees
to transact Low Carbon Fuel Standard Credits (“LCFS Credits”) designated as an Approved Product
pursuant to the Amended and Restated Market Purchase Program Agreement and the Transaction
Instrument designated below, supplemented and modified as follows:
(a) Seller:
(b) Contract Quantity: _______ Low Carbon Fuel Standard Credits
(c) LCFS Credits Transferred to NCPA on Date: ________________
(d) Applicable Program: ___________________
(e) Sell by Date (specify date; if applicable): _________________
(f) Minimum Price: ________________
(g) Special Terms and Exceptions: See Attachment K-1
(h) Security Deposit Amount Required: ___________________
(i) Transfer from GOR: ______
(j) Pay by Check or Wire (specify): _____
(k) Delivery Term (if applicable): Beginning ____________ Ending _____________
(l) Contract Price: See Attachment D-1
Except to the extent herein provided for, no amendment or modification to the Agreement shall
be enforceable unless reduced to writing and executed by both Parties. Those persons executing this
Participant Authorization and the Parties hereby warrant that they are authorized to do so.
Participant
By:
Designated Representative
Date:
Approved as to Legal Form,
Procedure and Authorization
By:
Principal Counsel
EXHIBIT K-1
1834887.5 K-2
AMENDED AND RESTATED MARKET PURCHASE PROGRAM AGREEMENT
ATTACHMENT K-1
ADDITIONAL TRANSACTION TERMS AND CONDITIONS
LOW CARBON FUEL STANDARD CREDITS
(Attach Buyer’s/Seller’s completed Attachment K-1 to the Participant Authorization)