HomeMy WebLinkAbout8-1,attachment NCPA LRPA AgrmntNORTHERN CALIFORNIA POWER AGENCY
LEGISLATIVE AND REGULATORY AFFAIRS PROGRAM AGREEMENT
This LEGISLATIVE AND REGULATORY AFFAIRS PROGRAM
AGREEMENT ("this Agreement") is made as of July 1, 2012, by and among the
Northern California Power Agency, a joint powers agency of the State of
California ("NCPA") and its Members. NCPA and the Members are referred to
herein individually as a "Party" and collectively as the "Parties".
RECITALS
A. NCPA maintains a Legislative and Regulatory Affairs Program by
which NCPA provides its Members with: (1) representation and advocacy in
areas of common interest to all, or nearly all Members at the regional, state and
federal level, including, but not limited to, representation and advocacy before
the California Legislature, U.S. Congress, the CAISO, state and federal
environmental and energy agencies, state and federal commissions and other
regulatory bodies; (2) support and expertise for Members involved in particular
NCPA Projects and Programs; and (3) programmatic support for
implementation, reporting, and compliance with various state and federal
programs and requirements.
B. The Legislative and Regulatory Affairs Program consists of three
Program Areas: (1) the General L&R Program; (2) the Specific L&R Program; and
(3) the Member Services Program. The General L&R Program, Specific L&R
Program and Member Services Program are together referred to as the "L&R
Program."
C. An agreement is necessary to formalize the contractual
relationships between NCPA and Members with regard to the role, scope,
governance, and the equitable allocation of costs associated with the L&R
Program. Each Member agrees to pay its equitable share of costs associated with
the L&R Program in accordance with its L&R Program Cost Allocation.
D. The L&R Program benefits all Members. It is an integral portion of
NCPA's core function and is necessary in order to protect the investments NCPA
and its Members have made in their public power assets. It is therefore
mandatory for all Members of NCPA to become a signatory to this Agreement,
except in such limited circumstances where the Commission exempts a Member
from this requirement in accordance with Section 6.2.1 of this Agreement.
E. This Agreement includes provisions for the L&R Judicial Action
Program, but does not affect or modify the Judicial Action program administered
by NCPA's Power Management Division, nor affect the cost allocations for the
Power Management Judicial Action Program.
F. Each Member agrees to pay its equitable share of costs associated
with the L&R Program, as determined by the L&R Program Cost Allocation,
which accounts for the cost allocation principles set forth in this Agreement.
G. The L&R Program shall operate in accordance with the guidance
set forth in the Annual L&R Program Strategic Plan and the Annual Budget. All
L&R Program functions are overseen by the NCPA Legislative and Regulatory
Affairs Committee ("L&R Committee") and the NCPA Commission.
NOW THEREFORE, the Parties agree 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 "Agreement" means this Legislative and Regulatory Affairs
Program Agreement, as the same may be amended from
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time to time in accordance with the terms and conditions
hereof.
1.1.2 "All Resources Bill" means the single, combined monthly
bill from NCPA to a Member with respect to all NCPA
programs and projects.
1.1.3 "Annual Budget" means the NCPA budget for the ensuing
Fiscal Year adopted by the Commission, as it may be
amended from time to time.
1.1.4 "Annual L&R Program Strategic Plan" means the strategic
plan for the L&R Program adopted by the L&R Committee
and the Commission, as it may be amended from time to
time.
1.1.5 "Associate Member" means an associate member of NCPA.
1.1.6 "Base Resource Share" means an individual Member's Base
Resource Share from Western.
1.1.7 "Bureau" means the U.S. Bureau of Reclamation.
1.1.8 "Business Day" means any day except a Saturday, Sunday,
or a Federal Reserve Bank holiday. A Business Day shall
open at 8:00 a.m. and close at 5:00 p.m., Pacific Time.
1.1.9 "CAISO" means the California Independent System
Operator Corporation, or any successor entity.
1.1.10 "California Refund Proceeding" means filings and
proceedings, whether regulatory or judicial, in connection
with the California energy crisis of 2000-2001.
1.1.11 "CARB" means the California Air Resources Board.
1.1.12 "CEC" means the California Energy Commission.
1.1.13 "Claims" has the meaning set forth in Section 10.2.
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1.1.14 "Commission" means the NCPA Commission.
1.1.15 "Constitutive Documents" means, with respect to NCPA,
the Joint Exercise of Powers Act (Cal. Govt. Code § 6500, et
seq.), the Joint Powers Agreement, and the NCPA Rules of
Procedure, and such resolutions of general applicability and
governance as may be adopted by the Commission; and,
with respect to each Member, the California Government
Code and other statutory provisions applicable to such
Member, any applicable agreements, charters, contracts or
other documents concerning the formation, operation or
decision making of such Member, including, if applicable, its
City Charter, and any codes, ordinances, bylaws, and
resolutions adopted by such Member's governing body.
1.1.16 "CPUC" means the California Public Utilities Commission.
1.1.17 "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 Members.
1.1.18 "FERC" means the Federal Energy Regulatory Commission.
1.1.19 "Fiscal Year" means the NCPA fiscal year; currently the
twelve month period beginning July 1 and ending on the
next following June 30.
1.1.20 "General Manager" means the General Manager of NCPA.
1.1.21 "General L&R Program" means the (1) Legislative
Representation, (2) Regulatory Representation, (3) Western
Representation; and (4) Judicial Action Program areas as set
forth in Section 3.
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1.1.22 "Joint Powers Agreement" means that certain Amended and
Restated Northern California Power Agency Joint Powers
Agreement, dated as of January 1, 2008, establishing NCPA,
as the same may be amended from time to time.
1.1.23 "Judicial Action Program" has the meaning set forth in
Section 3.2.3.
1.1.24 "L&R" means legislative and regulatory affairs.
1.1.25 "L&R Committee" means the NCPA Legislative and
Regulatory Committee, as established by the NCPA Rules of
Procedure.
1.1.26 "L&R Program" has the meaning set forth in Recital B.
1.1.27 "L&R Program Cost Allocation" means the cost allocation
methodology approved by the NCPA Commission on
December 2, 2010, as set forth in Schedule 1.00, as amended
from time to time.
1.1.28 "L&R Program Schedule" means the procedures, protocols
and guidelines, appended to and part of this Agreement,
which are subject to change or amendment from time to time
by the Commission, as set forth in Section 10 of this
Agreement.
1.1.29 "Legislative Program" has the meaning set forth in Section
3.1.1.
1.1.30 "Member" means any Member of NCPA or Associate
Member of NCPA.
1.1.31 "Member Services Program" has the meaning set forth in
Section 5.
1.1.32 "NCPA" has the meaning set forth in the preamble hereto.
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1.1.33 "NCPA Rules of Procedure" means the Rules of Procedure
for the Commission of the Northern California Power
Agency, sometimes referred to as the NCPA By-laws, as
amended from time to time.
1.1.34 "NERC" means the North American Electric Reliability
Corporation.
1.1.35 "Party" or "Parties" has the meaning set forth in the
preamble hereto; provided that "third party" or "third
parties" are entities that are not a Party to this Agreement.
1.1.36 "PG&E" means Pacific Gas and Electric Company.
1.1.37 "Pooling Agreement" means that certain Amended and
Restated Pooling Agreement dated as of October 29, 2008, as
the same may be amended from time to time.
1.1.38 "Power Management Cost Allocation Methodology" means
the methodology adopted by the Commission from time to
time to allocate power management costs. As of the
Effective Date, such methodology is based upon a consultant
study referred to by the Parties as the "Nexant Study."
1.1.39 "Regulatory Program" has the meaning set forth in Section
3.1.2.
1.1.40 "Specific L&R Program" means activities or initiatives
undertaken relative to a specific NCPA Project, NCPA
Pooling Agreement matter, or other NCPA agreement as set
forth in Section 4.
1.1.41 "Term" has the meaning set forth in Section 12.
1.1.42 "Utility Director" means the most senior Member employee
with day-to-day authority to direct, manage and control
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operation of Member's utility, or if the Member does not
have a utility, the most senior Member employee with
authority to direct, manage and control acquisition and use
of electric power on behalf of that Participant.
1.1.43 "WECC" means the Western Electricity Coordinating
Council.
1.1.44 "Western" means the Western Area Power Administration.
1.1.45 "Western Program" has the meaning set forth in Section
3.1.3.
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. L&R Program Structure. The L&R Program consists of three (3)
Programs: (1) the General L&R Program; (2) the Specific L&R Program; and (3)
the Member Services Program. Each Program Area shall operate in accordance
with the guidance set forth in the Annual Budget and the Annual L&R Program
Strategic Plan. To the extent practicable, and except as otherwise provided for in
this Agreement, NCPA shall endeavor to allocate L&R Program costs in an
equitable manner, taking into account factors such as cost causation, Member
size (including load, population, and number of customers), annual percentage
increase in Member allocation, level of Member participation in NCPA Programs
and Projects, and other relevant factors. Each Member shall be responsible for
paying its fair share of the costs of the L&R Program, as determined by the L&R
Program Cost Allocation set forth in Schedule 1.00.
Section 3. General L&R Program. The General L&R Program includes the
following four (4) areas: (1) a Legislative Program focused on broad policy issues
of general significance to all, or nearly all Members; (2) a Regulatory Program
focused on broad policy issues of general significance to all, or nearly all
Members; (3) Western Program; and (4) L&R Judicial Action.
3.1 General L&R Program Areas.
3.1.1 Legislative Program. The Legislative Program addresses
broad policy issues of general significance. The Legislative
Program provides legislative advocacy and lobbying of both
the state and federal government. The Legislative Program
is divided into three separate budget centers:
3.1.1.1. State legislative. This budget center includes
advocacy efforts focused on representing the
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needs of public power systems and electricity
ratepayers before members of the state Senate
and Assembly, the Office of the Governor, and
state energy and environmental agencies;
3.1.1.2. U.S. Congress. This budget center includes
advocacy efforts focused on the potential
impacts of national energy and environmental -
related legislation on public power systems
and representing the needs of public power
systems and electricity ratepayers before
Members of Congress, the Executive Branch,
and federal energy and environmental
agencies; and
3.1.1.3. Advocacy groups. This budget center includes
NCPA's participation in, and associated
financial support for, advocacy groups and
national associations, which lobby on behalf of
and share NCPA's state, federal and regional
policy goals.
3.1.2 Regulatory Program. The Regulatory Representation Program
addresses broad policy issues of general significance.
NCPA's regulatory program is responsible for advocacy and
litigation or participation in proceedings before state,
federal, and regional regulatory agencies, including, but not
limited to the CARB, CEC, CPUC, FERC, NERC, WECC and
the CAISO.
N.
3.1.3 Western Program. The Western Program is an advocacy
program which provides legislative and regulatory
advocacy before representatives of Western and the Bureau
and works with these agencies and the United States
Congress to maximize the value of the Western power
resource for Members having Western power allocations.
The Western Program does not include activities or
initiatives engaged in solely for the benefit of signatories to a
Western Assignment Contract with Western, and a
concomitant Assignment Administration Program
Agreement with NCPA by which certain Members (as
assignor) have assigned their Base Resource Share to NPCA
(as assignee) to permit NCPA to create a power resource
portfolio administered through the Pooling Agreement.
3.1.4 L&R Judicial Action. The L&R Judicial Action Program
involves participation in particular litigation and in discrete
regulatory or legislative dockets, proceedings or cases
pending at CARB, CEC, CPUC, FERC or other regulatory
agencies, where such proceedings affect public power. In
the Commission's discretion, and only under special and
limited circumstances, major policy matters that are
sufficiently unique, discrete and identifiable may be
identified as part of and fall within the L&R Judicial Action
Program, rather than other areas of the L&R Program (and
rather than within Power Management Judicial Action).
3.1.4.1. Judicial Action Programs — Notice and Commission
Approval Requirements. NCPA has an
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obligation to provide notice to Members and
secure Commission approval when NCPA
proposes to undertake a L&R Judicial Action
Program initiative. NCPA shall provide notice
concerning any L&R Judicial Action Program
initiative it plans to undertake on the
Commission agenda and secure Commission
approval before NCPA undertakes that
Judicial Action Program initiative; provided,
however, that once NCPA has secured NCPA
Commission approval of its participation in a
Judicial Action Program initiative, it is not
necessary for NCPA to provide notice in
advance of each individual filing, action, or
activity associated with that L&R Judicial
Action Program initiative.
3.1.4.2. Member Participation in L&R Judicial Action
Program Initiatives. Once NCPA has provided
Members with notice of its intent to participate
in a L&R Judicial Action Program initiative on
a NCPA Commission Agenda and secured
NCPA Commission approval to participate in
the Judicial Action Program initiative,
Members must affirmatively opt -out of such
initiative by providing written notice to the
General Manager of that Member's intent to
opt -out of the Judicial Action Program
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initiative within thirty (30) days of the NCPA
Commission's approval of the Judicial Action
Program initiative, otherwise such Member
will be considered a part of the L&R Judicial
Action Program initiative. The General
Manager may extend the thirty (30) day time
period for a Member to opt -out of a Judicial
Action Program initiative for an additional
thirty (30) days, as necessary, upon written
request submitted by the Member to the
General Manager.
3.1.4.3. Withdrawal from L&R Judicial Action Program
Initiatives. Once a Member has failed to opt -
out of an L&R Judicial Action Program
Initiative that involves formal filing of
pleadings before any court or regulatory
agency, that Member may only withdraw from
such Judicial Action Program initiative after
providing sixty (60) days written notice to the
General Manager. Any such withdrawal from
all or part of any L&R Judicial Action Program
initiative shall in no way relieve that Member
from obligations and costs incurred on behalf
of that Member prior to that Member
providing notice of its intent to withdraw,
including any and all attorneys fees, consultant
or witness fees, or any other costs incurred or
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contracts entered into prior to that Member's
withdrawal.
3.1.4.4. Joint Defense and Litigation Privileges.
Notwithstanding any agreement or provision
to the contrary, each Member in the L&R
Judicial Action Program agrees that it intends a
Joint Defense and Joint Litigation privilege to
apply to all litigation and regulatory
proceedings to which NCPA becomes a party
as a consequence, and that such joint defense
and joint litigation privilege is in addition to
such attorney client or other privileges as may
apply as a consequence of the Joint Powers
Agreement, or otherwise.
3.1.4.5. Agreement as Not Affecting Power Management
Judicial Action.
This Agreement provides for judicial action
only within the context of the L&R Program. It
does not affect such judicial action as may be
undertaken by NCPA's Power Management
Division, the costs of which shall continue to
be allocated by NCPA in accordance with the
power management cost allocation
methodology, as may be amended by the
Commission or such other methodology as the
Commission may establish.
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3.2 Cost Allocation Principles for the General L&R Program. Costs
associated with the General L&R Program shall be allocated in
accordance with the following principles:
3.2.1 Legislative Program and Regulatory Program. Costs associated
with the Legislative Program and Regulatory Program
under the General L&R Program shall be allocated to all
Members in accordance with the L&R Program Cost
Allocation set forth in Schedule 1.00. The Commission may,
in its sole discretion, utilize funds collected from Members
pursuant to Article IV, Section 3(a) of the Joint Powers
Agreement to offset Member costs associated with the
General L&R Program.
3.2.2 Western Program. Costs associated with the Western
Program shall be allocated based on each Member's Western
Base Resource Share relative to other Members with Western
allocations.
3.2.3 L&R Judicial Action. Costs associated with the L&R Judicial
Action Program shall be borne only by Members that elect to
participate (or fail to opt -out of a particular L&R Judicial
Action initiative, as applicable) and shall be allocated
amongst such Members on a case -by -case basis by the
Commission as appropriate; provided however:
3.2.3.1. Rates & Tariffs. The costs associated with
activities and initiatives related to CAISO Rates
and Tariffs and PG&E Rates and Tariffs are not
governed by this Agreement. Such costs are a
part of the Power Management L&R Program
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and shall be allocated pursuant to the Power
Management Cost Allocation Methodology, as
adopted or amended by the Commission from
time to time; and
3.2.3.2. Western — Pool Members. The costs associated
with activities and initiatives related to
Western undertaken solely for the benefit of
signatories to a Western Assignment Contract
with Western, and a concomitant Assignment
Administration Program Agreement with
NCPA by which certain Members (as assignor)
have assigned their Base Resource Share to
NPCA (as assignee) to permit NCPA to create
a power resource portfolio administered
through the Pooling Agreement shall be borne
exclusively by those signatories to the Pooling
Agreement, based on each signatory's relative
Western Base Resource Share; and
3.2.3.3. California Refund Proceeding. The costs
associated with activities and initiatives related
to the California Refund Proceeding shall be
allocated in accordance with the refund
methodology approved by the Commission
from time -to -time for that matter.
Section 4. Specific L&R Program. In addition to the General L&R Program,
NCPA also undertakes activities and initiatives from time -to -time on behalf of
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particular subsets of NCPA Members that may or may not be of benefit to all
Members.
4.1 Specific L&R Program Areas. The Specific L&R Program includes
legislative, regulatory and judicial activities and initiatives
undertaken solely for the benefit of a specific NCPA Project,
signatories to the Pooling Agreement, or a signatory to a separate
agreement with NCPA.
4.2 Cost Allocation Principles for the Specific L&R Program. Costs
associated with the Specific L&R Program shall not be borne by
Members in general. Such costs shall be allocated among specific
Members in the relevant NCPA Project, Pooling Agreement or
other agreement in accordance with the terms of the applicable
agreements.
Section 5. Member Services Program. The Member Services Program
generally undertakes activities or initiatives on behalf of particular subsets of
NCPA Members that may or may not be of benefit to all Members.
5.1 Member Services Program Areas. The Members Services Program:
5.1.1 Provides data and information to Members needed to
comply with statutory energy and environmental reporting
obligations;
5.1.2 Undertakes joint projects to promote the adoption of best
utility practices among Members; and
5.1.3 Collaborates with, and provides leadership for, statewide
compliance efforts by public power agencies to ensure that
credible and consistent data is provided to State agencies in
a manner that will help prevent future legislative intrusions
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on local control of publicly -owned generation, transmission
and distribution of electric energy.
5.2 Cost Allocation Principles for the Member Services Program. Cost
associated with the Member Services Program shall be allocated in
accordance with the following principles:
5.2.1 Member Services Staff. The costs associated with the
provision of services noted in section 5.1, and the cost
(including all allocated overheads) of one (1) dedicated
NCPA Member Services Program staff person, shall be
allocated amongst all Members in accordance with the L&R
Program Cost Allocation set forth in Schedule 1.00, as
amended from time to time.
5.2.2 Other Member Services Program Costs. Costs associated with
other Member Services projects, activities and initiatives
shall be allocated based on each Member's involvement in a
particular Member Services project, activity or initiative,
and where applicable, the terms and conditions of any
applicable agreements by and among Members and NCPA
for discrete Member Services Program projects, activities or
initiatives.
Section 6. Member Commitments.
6.1 Existing Members. The L&R Program benefits all Members. It is
an integral portion of NCPA's core function and is necessary in
order to protect the investments NCPA and its Members have
made in their public power assets. It is therefore mandatory for all
Members of NCPA to become a signatory to this Agreement.
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6.2 New Members. Following the Effective Date of this Agreement,
any new Member of NCPA who becomes a signatory to the Joint
Powers Agreement must also concurrently become a signatory to
this Agreement, except as provided in Section 6.2.1.
6.2.1 Exceptions. The Commission may, by a unanimous vote and
due to a special, unique or legal circumstance, exempt a
Member from the requirement that it become a signatory to
this Agreement when it becomes a signatory to the Joint
Powers Agreement, and approve a Resolution setting forth
the specific terms of that individual Member's participation
in and cost allocation under the L&R Program; provided
however, that the Commission may concurrently limit the
authority to participate in the L&R Program for any Member
granted such an exemption, including that Member's voting
authority on the L&R Committee as set forth in Section 8.2.
6.3 L&R Program Costs. Each Member agrees to and acknowledges its
mandatory obligation to pay its L&R Program Cost Allocation
invoiced in its All Resources Bill.
6.3.1 Participation and Costs. Any Member may elect to represent
itself, or not participate in whole or in part in any portion of
the General L&R Program, Specific L&R Program or
Member Services Program; provided however, that any such
decision shall not relieve any Member of its mandatory
obligation to pay its L&R Program Cost Allocation.
6.3.2 Exceptions to Cost Obligation. The Commission may, by a
unanimous vote and due to a special, unique or legal
circumstance, adopt a resolution which exempts a Member
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from paying all or a portion of the costs associated with the
General L&R Program, Specific L&R Program and Member
Services Program, and setting forth the terms of that
individual Member's cost allocation under the L&R
Program; provided however, that such an adjustment to a
Member's cost allocation may, in the Commission's
discretion, concurrently limit that Member's authority to
participate in the L&R Program, including that Member's
voting authority on the L&R Committee as set forth in
Section 8.2. Exceptions granted pursuant to this Section
shall be reflected in that Member's L&R Program Cost
Allocation.
Section 7. Strategic Plan and Annual Budget.
7.1 Each year, NCPA shall present to the L&R Committee a proposed
Annual L&R Program Strategic Plan. The proposed Annual L&R
Program Strategic Plan shall outline proposed: (1) initiatives, goals,
priorities and objectives for the L&R Program, including
identification of those that fall within the General L&R Program,
Specific L&R Program and the Member Services Program; and (2)
budgets for the L&R Program, including individual budgets for the
General L&R Program, Specific L&R Program and the Member
Services Program.
7.2 Following approval by the L&R Committee, the proposed Annual
L&R Program Strategic Plan shall be presented to the Commission
for its consideration and adoption as part of NCPA's Annual
Budget review process.
7.3 The Annual L&R Program Strategic Plan adopted by the
Commission shall serve as the basis for the Commission's
development of the L&R Program's budget which shall be a part of
the Annual Budget.
7.4 The Commission shall apply the L&R Program Cost Allocation set
forth in Schedule 1.00 to the L&R Program's budget to determine
each Member's equitable share of L&R Program costs, except as
otherwise provided for in this Agreement.
7.5 NCPA shall operate the L&R Program in accordance with the
adopted L&R Program Strategic Plan and within the monetary
parameters of the Annual Budget adopted by the Commission.
Section 8. L&R Committee. The L&R Committee shall consider and report
upon all matters relating to state and federal law referred to it by the NCPA
Commission or by the General Manager and shall serve as an advisory
committee on L&R matters in accordance with the NCPA Rules of Procedure.
8.1 Establishment of the L&R Committee. The L&R Committee exists
in accordance with the provisions of the NCPA Rules of Procedure.
The L&R Committee shall consist of one or more representatives
appointed by each Member, which representatives shall be the
Member's designated voting representative on the NCPA
Commission, that Member's Utility Director, or a designated
Alternate NCPA Commissioner of that Member.
8.1.1 Designation of Alternate Representative. Each Member may
also designate a temporary alternate representative for an
L&R Committee meeting, in accordance with the following
procedure:
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8.1.1.1. A Member must notify the General Manager in
writing of the identity of its alternate
representative in advance of the L&R
Committee meeting at which that alternate
representative intends to participate and vote.
Such notification must be signed by either the
Member's designated voting representative on
the NCPA Commission or that Member's
Utility Director;
8.1.1.2. In advance of the L&R Committee meeting at
which that alternate representative intends to
participate and vote, the Member must sign
and submit a form to NCPA, using a form to be
prepared by NCPA specifically for that
purpose, to the General Manager, stating that
the alternate representative's vote on L&R
Committee matters is binding on that Member,
and such form must be signed by the alternate
representative and the Member's designated
voting representative on the NCPA
Commission or that Member's Utility Director.
8.2 Voting. Except as provided in section 8.2.1, each Member shall be
entitled to cast one vote. If a Member has designated more than
one L&R Committee Representative, then the voting representative
shall be first the Member's Commissioner, or in the absence of the
Commissioner, the Utility Director, or in the absence of both the
Commissioner and the Utility Director, a Member's Alternate
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Commissioner, and in the absence of all the prior positions, the
temporary alternate designated pursuant to Section 8.1.1.
8.2.1 Limitations.
8.2.1.1. Specific L&R Program. Only Members
participating in the relevant project, Pooling
Agreement, or other agreement shall be
entitled to vote, in accordance with the
applicable Project Agreement, Pooling
Agreement or other agreement.
8.2.1.2. Member Services Projects, Activities, & Initiatives.
Only Members participating in a particular
Member Services Program project, activity or
initiative (pursuant to section 5.2.2) shall be
entitled to vote on matters related to that
project, activity or initiative.
8.2.1.3. Limited Members. Notwithstanding the
foregoing, and except as otherwise provided
by the Commission resolution granting an
exception, any Member that has been granted
an exception pursuant to Section 6.3.2 of this
Agreement shall not be entitled to voting
representation on the L&R Committee, but
may designate one non -voting representative
and one or more non -voting alternates. Such
Members shall be entitled to receive notices of
and to attend all regular and special meetings
of the L&R Committee.
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8.3 L&R Committee Rules of Procedure. The Commission in its
discretion may establish rules of procedure for the L&R Committee.
Section 9. Administration of Agreement. The Commission has sole overall
responsibility and authority for the administration of this Agreement. NCPA
shall undertake L&R Program activities in accordance with the Annual Budget
and Annual L&R Program Strategic Plan adopted by the Commission. 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.
Section 10. L&R Program Schedules. L&R Program Schedules may be
established for the implementation of this Agreement. L&R Program Schedules
can provide detailed descriptions, procedures, protocols and guidelines
(including operating and cost recovery procedures) for the operation of the L&R
Program. The L&R Program Schedules may be adopted, amended or deleted by
the NCPA Commission after receiving the recommendation of the L&R
Committee. Upon Commission approval, adoptions, amendments, or deletions
of L&R Program Schedules shall be effective immediately without the necessity
of approval by the governing board or commission of any Member. NCPA shall
upon adoption, amendment or deletion of an L&R Program Schedule ensure that
each Member is promptly provided notice of such adoption, amendment or
deletion. In the event of a conflict between this Agreement and any L&R
Program Schedule, this Agreement shall govern.
Section 11. Effectiveness of Agreement. This Agreement became effective on
the Effective Date.
Section 12. Term and Termination. The Term of this Agreement for each
Member is concurrent with each Member's membership in NCPA. If a Member
withdraws from NCPA, then this Agreement shall terminate as to that Member,
22
but shall remain in effect for all other Members. Any cost or liability arising
prior to withdrawal from membership and remaining undischarged as of the
effective date of withdrawal from NCPA shall continue and the withdrawing
Member shall be required to satisfy such costs or liabilities as a condition of
withdrawal from NCPA.
Section 13. Miscellaneous
13.1 Confidentiality. All Parties acknowledge that, from time to time,
the information provided to them as a part of the L&R Program
will be politically and commercially sensitive and may be
confidential or trade secret information. The Parties will keep
confidential all confidential or trade secret information made
available to them in connection with this Agreement or the L&R
Program 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.
13.2 Indemnification and Hold Harmless. To the maximum extent
permitted by law and subject to the provisions of Section 13.4, each
Member agrees to indemnify, defend and hold harmless NCPA and
its Members, including their respective governing officials, officers,
agents, and employees, from and against any and all claims, suits,
losses, costs, damages, expenses and liability of any kind or nature,
including reasonable attorneys' fees and the costs of litigation,
including experts ("Claims"), to the extent caused by any acts,
omissions, breach of contract, negligence (active or passive), gross
23
negligence, recklessness, or willful misconduct of a Member, its
governing officials, officers, employees, subcontractors or agents
arising out of or connected with this Agreement.
13.3 Separate Liabilities. No Member shall be liable under this
Agreement for the obligations of any other Member, and each
Member shall be solely responsible and liable for performance of its
obligations under this Agreement, except as otherwise provided for
herein. The obligation of each Member under this Agreement is a
separate obligation and not a joint obligation with those of the
other Members.
13.4 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 MEMBER OR THEIR
RESPECTIVE SUCCESSORS, ASSIGNS, REPRESENTATIVES,
DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE
FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, INDIRECT, PUNITIVE OR INCIDENTAL LOSSES
OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF
GOODWILL, LOST REVENUES, LOSS OF PROFIT OR LOSS OF
24
CONTRACTS EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, AND NCPA AND
EACH MEMBER 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.
13.5 Amendments. Except as provided in Section 8 of this Agreement,
this Agreement may be amended only by written instrument
executed by all of the Parties with the same formality as this
Agreement.
13.6 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.
25
13.7 Governing Law. This Agreement shall be interpreted, governed by,
and construed under the laws of the State of California.
13.8 Headings. All indices, titles, subject headings, section titles and
similar items are provided for the purpose of convenience and are
not intended to be inclusive, definitive, or affect the meaning of the
contents of this Agreement or the scope thereof.
13.9 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 Member's Utility Director,
or in the case of NCPA to its General Manager, or transmitted to
the Member and NCPA 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 Member.
13.10 Warranty of Authority. Each Party represents and warrants that it
has been duly authorized by all requisite approval and action to
execute and deliver this Agreement and that this Agreement is a
binding, legal, and valid agreement enforceable in accordance with
its terms as to the Member, and as to NCPA. Upon execution of
this Agreement, each Member shall deliver to NCPA a resolution of
the governing body of such Member 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 Member's Constitutive Documents.
13.11 Counterparts. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same
26
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.
13.12 Assignment. No Member may assign or otherwise transfer their
rights and obligations under this Agreement without the express
written consent of NCPA.
27
IN WITNESS WHEREOF, each Member has executed this Agreement with
the approval of its governing body, and NCPA has authorized this Agreement in
accordance with the authorization of its Commission.
NORTHERN CALIFORNIA
POWER AGENCY
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
CITY OF ALAMEDA
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
Date: Date:
Approved as to form:
By:
Its: General Counsel
Date:
Approved as to form:
By:
Its: City Attorney
Date:
SAN FRANCISCO BAY AREA RAPID
TRANSIT
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
Date:
Approved as to form:
By:
Its: General Counsel
Date:
CITY OF GRIDLEY
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
CITY OF BIGGS
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
CITY OF HEALDSBURG
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
29
CITY OF LODI
CITY OF LOMPOC
[Address]
[Address]
[City, State, Zip]
[City, State, Zip]
[Telephone]
[Telephone]
[Facsimile]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
CITY OF PALO ALTO
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
PLUMAS-SIERRA RURAL
ELECTRIC COOPERATIVE
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: General Counsel
Date:
30
CITY OF OAKLAND, acting by and
through its BOARD OF PORT
COMMISSIONERS
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
Date:
Approved as to form:
By:
Its: General Counsel
Date:
CITY OF ROSEVILLE
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
CITY OF REDDING
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
CITY OF SANTA CLARA
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
31
TRUCKEE DONNER PUBLIC
UTILITY DISTRICT
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:
Title:
Date:
Approved as to form:
By:
Its: General Counsel
Date:
CITY OF UKIAH
[Address]
[City, State, Zip]
[Telephone]
[Facsimile]
By:_
Title:
Date:
Approved as to form:
Its: City Attorney
Date:
1830525.2
32
INDEX OF L&R PROGRAM SCHEDULES
Schedule Pa?e
0-00 Introduction to L&R Program Schedules
1-00 L&R Program Cost Allocation
33
L&R PROGRAM AGREEMENT
L&R Program Schedule 0-00
INTRODUCTION TO L&R PROGRAM SCHEDULES
Separate L&R Program Schedules will be established for this Agreement and
related purposes, as appropriate, pursuant to Section 7 of this Agreement. L&R
Program Schedules will provide detailed descriptions, protocols, principles,
guidelines and procedures (including operating and cost recovery procedures)
for the L&R Program pursuant to this Agreement.
For NCPA Projects and Activities for which another Agreement is executed
between NCPA and its Members, the L&R Program Schedule will supplement,
and not supersede, such Agreements with respect to the L&R Program.
NCPA L&R Program Schedules shall provide for:
L&R Program Cost Allocation; and
Other topics as needed in the future.
Additional L&R Program Schedules may be established to provide guidance
regarding the L&R Program, or for other aspect of the implementation of this
Agreement.
Definitions as set forth in Section 1 of this Agreement shall have the same
meaning in the L&R Program Schedules.
34
NCPA L&R PROGRAM AGREEMENT
L&R Program Schedule 1-00
L&R PROGRAM ALLOCATION
Approved Allocation Methodology for the Legislation and Regulatory Program
Per Commission Action on November 18, 2010
Resolution 10-106
Legislative Program (State and Federal)
50% of costs (non pass through) allocated by Equal Shares among all participating members
50% of costs (non pass through) allocated by Energy Shares from previous calendar year
Regulatory Program (State and Federal)
50% of costs (non pass through) allocated by Equal Shares among all participating members
50% of costs (non pass through) allocated by Energy Shares from previous calendar year
Member Services
50% of costs (non pass through) allocated by Equal Shares among all participating members
50% of costs (non pass through) allocated by Energy Shares from previous calendar year
Judicial Action - Green House Gas Reduction Initiative (same as Regulatory
Program)
50% of costs (non pass through) allocated by Equal Shares among all participating members
50% of costs (non pass through) allocated by Energy Shares from previous calendar year
Western
Costs of program allocated based on adjusted share of Western Base Resource Percentages
Source: NCPA Commission Resolution 10-106.
Five Year Phase in Plan
FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
10.00% 20.00% 30.00% 40.00% 50.00%
90.00% 80.00% 70.00% 60.00% 50.00%
10.00% 20.00% 30.00% 40.00% 50.00%
90.00% 80.00% 70.00% 60.00% 50.00%
41.86% 56.39% 70.93% 85.46% 100.00%
58.14% 43.61 % 29.07% 14.54% 0.00%
10.00% 20.00% 30.00% 40.00% 50.00%
90.00% 80.00% 70.00% 60.00% 50.00%
35