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HomeMy WebLinkAboutAgenda Packet - July 23, 2003 - UBAZUSA U GGT R'A'AT[E AGENDA SPECIAL MEETING OF AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL THE REGULARLY SCHEDULED UTILITY BOARD/CITY COUNCIL MEETING OF MONDAY, JULY 28, 2003, IS CANCELLED. AZUSA LIGHT & WATER WEDNESDAY, JULY 23, 2003 729 N. AZUSA AVENUE 6:30 PM AZUSA, CA 91702 AZUSA UTILITY BOARD DIANE CHAGNON CHAIRPERSON ' DICK STANFORD DAVE HARDISON VICE CHAIRPERSON BOARD MEMBER CRISTINA C. MADRID IOSEPH R. ROCHA BOARD MEMBER BOARD MEMBER 6:30 p.m. - Convene to Regular Meeting of the Azusa Utility Board and Azusa City Council • Call to Order • Pledge to the Flag • Roll Call 1. PUBLIC PARTICIPATION (Person/Group shall be allowed to speak without interruption up to five (5) minutes maximum time, subject to compliance with applicable meeting rules. Questions to the speaker or responses to the speaker's questions or comments, shall be handied after the speaker has completed his/her comments. Public Participation will be limited to sirty (60) minute's time.) The Consent Calendar adopting the printed recommended action will be enacted with one vote. if Staff or Counci/members wish to address any item on the Consent Calendar individual/y, it will be considered under SPECIAL CALL ITEMS. D 1 1 11. CONSENT CALENDAR t A. Minutes. Recommendation: Approve'minutes of regular meeting of June 25, 2003, as written. II -A. UB Minutes 6-25-03 Agreement with Huls Environmental Management, I.I.C. Recommendation: Waive bidding and approve a three-year agreement with Huls Environmental Management, LLC, for administration of used oil block grant program. E II -B. Huls Envirrrtl Contract C. Water Main Replacement Projects. Recommendation: Authorize bidding to replace water mains for four separate projects: W-186 / Alameda Avenue; W-187/ Old Mill Road; W-188/ Pasadena Avenue; and W-189/ Stein Lane. E IIC. Main Replacements D. Water Main Installation Project. Recommendation: Authorize bidding for installation of Sbcth Street Distribution Main, Project W-178. E II -D. Dist Water Main W-176 v E. Gasoline Tank Upgrades and Repairs. Recommendation: Authorize a purchase order to Pacific Systems Electric in amount of $20,848.80 to perform necessary upgrades and repairs for gasoline tank at Gladstone Maintenance Yard. E II -E. Water Yard -Gasoline Storag, Furnishing and Installing Underground Electric Substructures. Recommendation: Adopt the plan and specifications for furnishing and installing underground electric substructures along Gladstone Street between Vincent and Vernon Avenue. E II -F. 2nd Substation Substructurec 2 1 002 '111. SCHEDULED ITEMS r L A. Purchase of Wind Powered Electrical Energy. Recommendation: Approve purchase of three additional megawatts of wind power from PPM Energy, Inc. and authorize Mayor to execute the agreement for purchase of six megawatts of wind powered electrical energy once the final agreement is prepared. IV. 91 E III -A. PPM STAFF REPORTS/COMMUNICATIONS High Winds Project Dedication Ceremony on September 18, 2003 IV -A. High Winds Project Dedication Power Resources Division Monthly Report CJ IV -B. Moly Power Resources Rpt V. DIRECTORS' COMMENTS A. B. VI. A. Utility Board Technology Policy Utility Funds Transfer Policy _ Adjourn v %n compliance with the Americans with Disabilities Act, ifyou need special assistance to participate in a city meeting, please contact the City Clerk at 616-811-5119. Notification three (3) working days prior to the meeting or time when special services are needed will assist staff in assuring that reasonable arrangements can be made to provide access to the meeting. " 003 J CITY OF AZUSA MINUTES OF THE REGULAR MEETING OF THE AZUSA UTILITY BOARD/CITY COUNCIL MONDAY, DUNE 25, 2003 - 3:30 P.M. The Utility Board Members of the City of Azusa met in regular session, at the above date and time in the Azusa Light and Water Department Conference Room, located at 729 N. Azusa Avenue, Azusa, California. Chairperson Chagnon called the meeting to order. Call to Order ROLL CALL Roll Call PRESENT: COUNCILMEMBERS: STANFORD, CHAGNON, MADRID ABSENT: COUNCILMEMBERS: HARDISON, ROCHA ALSO PRESENT: Also Present City Attorney Ferre, City Manager Cole, Director of Utilities Hsu, Assistant to the Director of Utilities Kalscheuer, Administrative Technician Yang, Assistant City Manager Person, Utilities Marketing Services Coordinator Torres, Assistant Director of Water Operations Anderson, Information Systems Administrator Graf -Gaynor, River Consultant Avila, City Clerk Mendoza, Deputy City Clerk Toscano. Public Participation Pub Part None. None An item of subsequent need arose after the posting of the agenda regarding a personnel matter Item of sub and it was moved by Councilmember Stanford, seconded by Councilmember Chagnon and Sequent unanimously* carried to agendize it under the Closed Session portion of the agenda as follows: Need Government Code Section 54957, Public Employee Discipline/DismissaVRelease. Closed Sess The CONSENT CALENDAR consisting of Items II -A through 11-H, were approved by motion bf Con Cal Councilmember Stanford, seconded by Mayor Madrid and unanimously* carried. Approved -d A. The minutes of the regular meeting of May 21, 2003, and the adjourned regular meeting of Min appvd May 21, 2003, were approved as written. =11 B. A RESOLUTION OF THE AZUSA UTILITY BOARD/CIN COUNCIL OF THE CITY OF AZUSA, Res. 03-056 AWARDING A CONTRACT FOR COLLECTION OF DELINQUENT UTLITY CUSTOMER WeinerCaine ACCOUNTS TO CAINE & WEINER. C. Approval was given to award the contract to conduct a Water Treatment Plant Pilot Study to Study tr Tyrmt Kennedy/Jenks Consultants . D. Approval was given to award bid to MQ Power, Engine and Equipment Division in the amount Pur ua err of $65,407.89, for the purchase of a Trailer Mounted Diesel Generator. E. Approval was given to add $20,000 to the contract amount of Wren & Associates for We n Assoc s act inspection services project. Approval was given to award the contract for the construction of Project W-179, Barranca GC[ ; 79onstr. and Foothill, 12 inch Waterline to GCI Construction. G. Approval was given to award the contract for the Construction Management and Inspection VCi ilt5ec of Project W-185, Big Dalton Wash Crossing, 12 inch Waterline to Civiltec. H. Approval was given to authorize funding in the amount of $1,500 to support the Fund Lunch Employee/Utility Board Lunch on July 31, 2003, at Northside Park. SPECIAL CALL ITEMS Special Call None None. Scheduled Items Sched Items Metering Facilities Agreement and ISO Metered Entities Agreement. Director of Utilities Hsu addressed the issue stating that since the City has joined ISO, there is Metering a new requirement imposed by the ISO on the metering facilities. ISO requires independent Facilities access to the meters and thus Edison will need to replace the existing meters with new meters Agmt with such capabilities. Metering Facilities Agreement will memorialize Edison's obligation to do the meter change out and City's obligation to pay for the work. ISO Metered'Entities Agreement will memorialize ISO's right to independent access to the meters and the City granting such access to the ISO. Moved by Councilmember Stanford, seconded by Chairperson Chagnon and unanimously* carried Agmt to approve (1) the Metering Facilities Agreement between Edison and the City; and (2) the ISO w/Edison Metered Entities Agreement between the California Independent System Operator (CAISO) and & CAISO the City. Further, that the Mayor execute the agreements upon the preparation of the execution Metering copies. Scheduling Services Agreement. Director of Utilities Hsu addressed the issue stating that the existing agreement between the City and Salt River Project for after -the -hour power scheduling services will be expiring on June 30, Scheduling 2003. He noted that the outsourcing of this service will continue to be the most cost-effective Agmt way to serve versus other alternatives and that the cost from SRP is $2,100 a month for two years. Moved by Chairperson Chagnon, seconded by Councilmember Stanford and unanimously* carried Agmt v%/ to approve the Scheduling Services Agreement between the City and Salt River Project (SRP) and SRP authorize the Mayor to execute the agreement upon the preparation of the execution copy. Approved 06/25/03 PAGE TWO 005 Discussion was held regarding the proposal by R.W. Beck to conduct an analysis of Wireless Discussion Fidelity (Wi FI) Network with High Speed Internet Service Offering. Chairperson Chagnon voiced R.W. Beck concerns regarding the City's knowledge of Fiber, the risk of spending the money, the competition Proposal and if there was a market for this in the City. Staff responded to the concerns and additional discussion was held. Moved by Mayor Madrid, seconded by Councilmember Stanford and unanimously* carried to Analysis approve RW Beck's proposal dated June 18, 2003, in the amount not -to -exceed $24,000 to Wi Fi conduct an analysis of a Wi Fi Network and high-speed internet service offering; and authorize R.W. Beck staff to approve an additional $8,100 to assess how homes in the Monrovia nursery project area can be Next Generation Broadband Homes. Staff Reports/Communications Staff Rpts River Consultant Suzanne Avila addressed Councilmembers and presented the Rio San Gabriel . S. Avila Vision Plan and Design Guidelines. She provided an update on various grants applied for and the Update on following San Gabriel River Projects: the Forest Gateway, Azusa Canyon River Park, the Bike Path, San Gabriel the San Gabriel Canyon Spreading Basins Trail and Parking Lot, and Think River. She advised that River Prjts there will be a groundbreaking ceremony for the Trail and parking lot on July 315`, with County Supervisor Gloria Molina to be in attendance. She also advised that Think River will be held with the aid of Azusa Pacific University. Discussion was held regarding the City's proposal to acquire EI Encanto, which will be purchased with grants and remain open. The item regarding the Northern Gateway Monument was brought forward for handling at this Update on time. Mr. Ron of Foresight Creations presented renderings of the changes in the Gateway Northern Monument. He noted that the graphic portion is a wood cut, and the base is river rock. Gateway Discussion was held regarding the care and maintenance of sandblasted signs. Discussion was Monument held, among other things, regarding the lettering on the sign. He advised that he would come back with sign options to choose from and also the colors and details of the monument. It was consensus that these issues would be reviewed by the Art Committee, Mayor Madrid and Councilmember Hardison. Director of Utilities Hsu reported on the meeting with the San Gabriel Valley Municipal Water Dir of Util District (SGVMWD) on June 5, 2003. He stated that a history of the District Was' presented as well Update as the benefits and how it is financed. SGVMWD Assistant Director of Water Operations Anderson also addressed the meeting with SGVMWD, Asst Dir Wtr detailing its purpose and how it operates. One of the main issues of the meeting was the issue of Operations Sierra Madre and how to get them some equity, and distribute money back to them. Further, they Update provide loans to Cities and charge about 3% interest. They are currently looking for anew General SGVMWD Manager. Discussion was held between Councilmembers and Staff. 4 Year Prosection of Water Supplv Director of Utilities Hsu presented a report on how much Water Rights Azusa has, under what Agency and what kind. He detailed the four- year projections for 2003-04, 2004-05, 2005-2006, and 2006-07. He stated that he is proposing a water rate increase at a future Council meeting. The reason for the rate increase is to replenish the reserves, which they use to finance Capital Improvement Programs which range from one million to five million dollars per year. Mayor Madrid requested that in the future the report be created on a single page, matrix style in order to be able to review and understand the document. Director of Utilities Hsu announced that the Substation Ground Breaking will soon be held and asked Council for a possible date in August. He advised that he would propose some dates via e-mail. 06/25/03 PAGE THREE 4 Year Projection of Water Supply Dir of Util Substation Grndbrkg M Director's Comments Dir Com Items regarding discussion and proposal on Utility Fund Transfer and Technology Allowance Policy Items cont were carried over to a meeting that has a full Council. Chairwoman Chagnon presented the SHARE Program asking if Council would like to support or Chagnon investigate such a program. Director of Utilities Hsu advised that the program is to ask all SHARE customers to voluntarily contribute a fixed amount every month for low income assistance, Christmas Baskets, to help pay utility bills, etc. Mayor Madrid asked that staff check out Project Angel with the DWP and draft a program for the City of Azusa. City Manager Cole raised an issue stating that two members of the Utility Board have exceeded their Technology Allowance of $7,200, due to a mis-interpretation of the allowance. Discussion City Mgr was held between Councilmembers and staff regarding whether to allow staff to pay the Tech outstanding bills, and whether to move the allowance effective date to July 1" instead of October Allowance 22, 2003, as the allowance was originally proposed. Discussion Mayor Madrid expressed concern regarding the issue, stating that she would like to pay outstanding bills, but, not purchase more equipment, until a full Council is present for the Madrid discussion. Concerns Chairperson Chagnon recommended that the Technology Allowance cycle run from July I" through June 3Uh as the budgeting cycle does and that a recommended policy be brought back Chagnon for review with ranges of DSL prices, etc. in order to be aware of what the budget entails. Comments Moved by Chairperson Chagnon, seconded by Councilmember Stanford to reset the Technology Allowance to July 1, 2003 and to pay for outstanding bills and for new purchases. Discussion was Motion held. Motion failed Mayor Madrid dissenting. Staff is to come back with clarification on a policy Failed for the Technology Allowance. It was consensus of Councilmembers to recess to Closed Session to discuss the following: CLOSED SESSION u, It was consensus of Council to recess to Closed Session to discuss the following: Closed Sess CONFERENCE WITH LEGAL COUNSEL- EXISTING LITIGATION Government Code Section 54956.9(a) So. Calif. Southern California Edison Co. v. City o Azusa, et al. Edison v. Case Number BC 281408 City of Azusa CONFERENCE WITH LEGAL COUNSEL- EXISTING LITIGATION Government Code Section 54956.9(a) City of Azusa City of Azusa Transmission Revenue Requirement Transmission FERC Docket No. EL 03-14-000 Revenue Requirement PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE Government Code Section 54957 Public empl Discipline The City Council recessed at 5:15 p.m. The City Council reconvened at 5:30 p.m. Recess' Reconvene 06/25/03 PAGE FOUR 007 City Atty City Attorney Ferre announced that action was taken to approve both settlement agreements as Reports listed above and there was no reportable action taken regarding the Public Employee. Adjourn It was consensus of Councilmembers to adjourn. TIME OF ADJOURNMENT: 5:31 P.M. SECRETARY NEXT RESOLUTION NO. 03-057. *Indicates Hardison and Rocha absent. V 06/25/03 PAGE FIVE Elm TO: FROM: DATE: SUBJECT: AZUSAl CYI i KARL CONSENT CALENDAR HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL JOSEPH F. HSU, DIRECTOR OF UTILITIES JULY 23, 2003 AGREEMENT WITH HULS ENVIRONMENTAL MANAGEMENT, LLC, FOR ADMINISTRATION OF USED OIL BLOCK GRANT PROGRAM RECOMMENDATION It is recommended that the Azusa Utility Board/City Council waive formal bidding and approve the attached Agreement with Huls Environmental Management, LLC, for administration of the City's used oil block grant program. tp'u'.. BACKGROUND In February 2001, the City executed a 2 '/z year contract with Huls Environmental Management, LLC, for assistance in administering a used oil block grant provided to the City by the California Integrated Waste Management Board (CIWMB). Huls has been promoting used oil recycling at eight to six collection centers in Azusa mainly by supplying them with used oil drain pans purchased by the City under this program. The centers provide the drain pans free to residents to promote recycling of motor oil. Huls tracks the number of drain pans given away each month and orders more drain pans when the centers' inventories run low. Huls also tracks the gallons of oil dropped off at the centers each month, and develops components of the report that must be submitted to the CIWMB on an annual basis. Since February 2001, eight to six collection centers have recovered 33,157 gallons of used oil and provided 950 drain pans to Azusa residents. City staff has assisted with the promotion of these centers with an annual recycling booklet as well as newspaper ads. The attached contract will continue the services of Huls Environmental Management with a couple small changes: (1) Huls will work with existing centers to promote recycling of oil 009 filters, now a required component of the State's program; and (2) Huls will seek to identify some promotional items which the used oil centers desire to handout. Staff considers Huls services unique and a sole source provider. Further, as of June 2003, Huls is 26% below budget for the existing contract. FISCAL IMPACT Proposed three year agreement is $18,845; used oil block grant funds from the California Integrated Waste Management Board will be used to pay all billed amounts under this agreement. Prepared by: Cary Kalscheuer, Assistant to the Director of Utilities Steven Yang, Administrative Technician Attachment: In Agreement.doc 4 `: 010 CITY OF AZUSA PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 28th day of July 2003 by and between the City of Azusa, a municipal organization organized under the laws of the State of California with its principal place of business at 213 East Foothill Blvd., Azusa, CA 91702 ("City") and Huls Environmental Management, LLC, a California Corporation, with its principal place of business at 1074 Parkview Drive #105, Covina, California 91724 ("Consultant"). City and Consultant are sometimes individually referred to as "Party" and collectively as 'Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing used oil recycling services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for the Used Oil Block Grant project ('Project') as set forth in this Agreement. c 3. TERMS. 3.1 Scope of Services and Term. 3. 1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from the date first set forth herein to August 15, 2006, unless earlier terminated as provided herein. Consultant shill complete the Services within the term of this Agreement, and shall meet any other established RVPUBWGS\544364 011 schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant . cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Ms. Sandy Costandi, Sr. Associate Consultant, and Nami Olgin, Associate Consultant. RVPUBV4GS\544364 2 012 3.2.5 City's Representative. The City hereby designates Cary Kalscheuer, Assistant to the Director of Utilities, or his designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative. Consultant hereby designates J. Michael Huls, Principal, or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care, Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are leg43y required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub -consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws Regulations and State Requirements. 3.2.9.1 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA RVPUBWGSI544364 3 013 requirements, and shall give all notices required by law. Consultant sh?ll be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.9.2 Agreement between the City and the California Integrated Waste Management Board. Consultant agrees to comply with all the requirements set forth by the California Integrated Waste Management Board for administration of the California Used Oil Block Grant Program, including any changes in these requirements during the term of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. hi addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers'Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence RVPUB\NGS15443ld Q 014 limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers'Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.2.10.3 Professional Liability. Consultant shall procure and maintain, and require its sub -consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall .provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. Tke automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed. by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy required by RVPUBWGS544764 015 this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Separation of Insureds No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.6 Deductibles and Self -Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. 3.2.10.8 Verification of Coverage. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insur Nto bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.2.11 Safe Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety . RVPWNGSS544364 6 016 measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Eighteen Thousand Eight Hundred and Forty Five Dollars ($18,845) without written approval of City's City Manager or Assistant to the Director of Utilities. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative. ' 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. RVPUBWGS544364 7 017 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: J. Michael Huls, Principal Huls Environmental Management, LLC 1074 Parkview Dr. #105 Covina, CA 91724 v Telephone (626) 332-7514 City: Cary Kalscheuer, Asst. to the Director of Utilities City of Azusa P.O. Box 9500 Azusa, CA 91702-9500 Telephone (626) 812-5174 Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data• Licensing of Intellectual Property.. RVPUBWG044364 018 This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ('Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation, Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 3.5.6 Indemnification. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the RVPUBWGSK44364 9 019 Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents or volunteers. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. V u.. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the. prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise RVPUBWGS%544364 10 020 specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not. employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, duining the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisipns before ' RVPGBWGS\544364 11 021 commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF AZUSA fes, HULS ENVIRONMENTAL MANAGEMENT, LLC rj 11 44_ - By: By: 17, i Cris na Cruz-Madrid J. Michael Hu s Mayor Principal Attest: City Clerk Approved as to Form: Best est &Kriege T.T,P City At orney RVPUB\NGS\544364 1 2 EXHIBIT "A" SCOPE OF SERVICES HULS ENVIRONMENTAL MANAGEMENT, LLC AZUSA USED OIL RECYCLING PROGRAM Huls Environmental Management, LLC ("Consultant") shall manage and implement following tasks under the City of Azusa's ("City's") Used Oil Block Grant Program as administered by the California Integrated Waste Management Board ("CIWMB") for the period of August 16, 2003 through August 15, 2006: Continuation of Drain Container Distribution Program • Consultant will continue to contact each of the City's certified collection centers to obtain information on oil collection and container inventory on a monthly basis. The information will be tabulated for inclusion into CIWMB annual reports, and City quarterly reports. Additionally, technical assistance with re -certification, reimbursement claims, and illegal drop-off will be offered to center operators regularly. Estimated Hours: 60 • Orders will be placed with the drain container vendor based on the needs of the collection centers. Consultant will monitor the supply of containers being reserved by the vendor under Azusa's purchase order, and will arrange for shipment of the containers directlyto the centers as needed. Estimated Hours: 20 Filter Collection Program a. Filter collection is now a used oil block grant requirement, ancrall public education materials must promote used filter recycling. Consultant will contact the City's collection centers and solicit their participation in a filter collection program. It is expected that the majority of centers already have the capacity to collect filters from the public, so the purchase -of additional equipment (filter barrels, etc.) will not be necessary. The City may, at its sole option, consider providing the centers with an incentive to encourage participation. The centers that agree to participate will be asked to report the quantity of filters collected each month, along with the number of used oil gallons collected and their drain pan containgr inventory. Estimated Hours: 6 Site Visits • Consultant will conduct the annual certified collection center site visits and submit the appropriate fortes to the CIWMB. Upon completion of the site visits, Consultant will conduct follow-up activities, such as requests for signs or other CIWMB materials, as needed. Estimated Hours: 30 A-1 AM, Public Education • An updated fact sheet will be developed for distribution at collection centers, City events, City Hall, the community center, and the library. Consultant shall contact all necessary parties to solicit their interest in distributing the fact sheets, develop the artwork, obtain all necessary approvals, and arrange for printing. City will be billed by Consultant for printing costs. Estimated Hours: 12 Consultant will work with collection centers in the City on the selection of promotional items which may be distributed over the counter to promote used oil recycling. Using input from the City and from the collection centers, at least one promotional item will be chosen and ordered. Consultant will order the item(s) in accordance w ith a II C IWMB requirements, a nd t he C ity w ill b e responsible for paying the vendor directly. Estimated Hours: 10 Reports • Consultant will prepare quarterly progress reports for the City. The reports will provide a summary of oil collection, filter collection, and container distribution. All reports will be submitted by the 20"' day following the end of each quarter. Estimated Hours: 24 • Consultant will prepare all annual reports due to the CIWMB in a timely manner. Annual reports are due to the CIWMB each August 15. Three reports will be submitted during this contract period. Due dates are: August 15, 2004, August 15, 2005, and August 15, 2006. All reports will be submitted to the City for review at least 15 days prior to CIWMB due dates. Estimated Hours: 40 V City Responsibilities City shall carry out the following tasks for the period of August 16, 2003 through August 15, 2006: Issue purchase order(s) for drain pans. 2. Process all payments for drain pans, including delivery costs. Approve of any printed materials and promotional materials and pay for these items. 4. Publicize the locations of the collection centers, annually, and through monthly newspaper ads. 5. Execute all Annual Reports and submit them to the CIWMB. 6. Prepare and submit all grant payment requests to the CIWMB and all grant applications and forms as may be required by the CIWMB as part of the grant application process. A-2 024 EXHIBIT "B" SCHEDULE OF SERVICES HULS ENVIRONMENTAL MANAGEMENT, LLC AZUSA USED OIL RECYCLING PROGRAM Consultant shall contact each collection center in Azusa within 30 days of execution of this agreement and determine their level of interest in participating in used oil filter collection program. 2. Develop flyer with list of all collection centers within 30 days of execution of this agreement, including pertinent points about the program. 3. Gather input from collection centers on w hat type of p romotional i tems It hey p refer to distribute and report this information to the City. 4. Contact each collection center monthlyto obtain required information on drain pan inventory, pans distributed, gallons recovered, and filters recovered. 5. Provide quarterly report of progress to city by the 201h day following the each quarter's end. 6. Submit Annual reports to the City at least 15 days prior to their due date at the CIW MB. 4 'u:. 025 EXHIBIT "C" COMPENSATION Senior Associate Consultant (SAC) ........................ $90/hr Estimated Costs By Task: Task Personnel Hours . Rate $/hr Total $ Monitor Centers Monthly SAC 60 90 5,400 Order Drain Pans SAC 20 90 1,800 Filter Collection Program SAC 6 90 540 Site Visits SAC 30 90 2,700 Update Fact Sheet SAC 12 90 1,080 Developinq Promo Items SAC 10 1 90 900 Qtrly Progress Report I SAC 24 90 2,160 Annual Report Preparation I SAC 40 90 1 3,600 Total Labor Cost 1 202 90 1 18,180 Other Costs: Mileage 450 miles $0.365/mi $165 Printing (Not To Exceed) $500 Total Estimated Cost: Labor $18,180 Other costs $ 665 Total $18,845 C-1 City of Azusa Community Development 213 E.°Foothill Blvd. Azusa, CA 91702 www.ci.azusa.ca.us "Azusa; the most improved city in the San Gabriel Valley" -San Gabriel Valley Tribune Community Informational Meeting: Update on River Restoration Projects Monday, July 28, 2003, 7:00 p.m.. 9:00 p.m. PRESORTED STANDARD US POSTAGE PAID DIRECT MAIL SERVICE 91773 The City of Azusa has received several grants which secure funding for river restoration projects. We are working on restoring habitat and creating open spaces along the San Gabriel River. We want to share the excitement ,of the progress being made by inviting you to an informal Q lr A session.. Come and be a part of the vision! Monday, July 28, 2003, 7:00 p.m:- 9:00.p.m Church of Jesus Christ of Latter-day Saints ' 1645 N. San Gabriel Avenue (next to the Eagle's lodge) Azusa, CA 91702 For more information, please contact Suzanne Avila at (626) 969-24,91. - h'.4VLAn TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTTLIy AND AZUSA CITY COUNCIL ` FROM: JOSEPH F. HSU, DIRECTOR OF UTILITIES DATE: JULY 23, 2003 SUBJECT: WATER MAIN INSTALLATION --SIXTH STREET DISTRIBUTION MAIN, PROJECT W-178 RECOMMENDATION It is recommended that the Utility Board/City Council authorize staff to advertise for bids for installation of Sixth Street Distribution Main, Project W-178. BACKGROUND The Water Division has completed a water main design, recommended in the 2000 Water Master Plan Update, called the Sixth Street Distribution Main Project, to install a twelve -inch diameter water main in Sixth Street from Virginia Avenue to Cerritos Avenue. FISCAL IMPACT A budget item for this project has been approved by the Board in the Fiscal Year 2003-2004 budget. Prepared by: Chet Anderson, Assistant Director of Water Operations .47rV , CONSENT CALENDAR TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL FROM: JOSEPH F. HSU, DIRECTOR OF UTILITIES DATE: JULY 23, 2003 SUBJECT: AUTHORIZATION OF ISSUANCE OF PURCHASE ORDER IN THE AMOUNT OF $20,848.80 TO PACIFIC SYSTEMS ELECTRIC TO PERFORM UPGRADES AND REPAIRS TO GASOLINE TANK AT GLADSTONE MAINTENANCE YARD RECOMMENDATION It is recommended that the Utility Board/City Council authorize the issuance of a purchase order to Pacific Systems Electric in the amount of $20,848.80 to perform necessary upgrades and repairs to the gasoline tank located at the Water Division's GI&Atone Maintenance Yard. BACKGROUND The 6,000 gallon, unleaded fuel tank located at the Water Division's Gladstone Yard serves as the division's sole source of fuel for its equipment using unleaded fuel. The convenience of having the tank on site rather than traveling to another location has proven to be cost effective and time saving. Additionally, by purchasing fuel in such large quantities, the City's buyer is able to negotiate a much lower price per gallon, resulting in substantial savings in fuel costs. The .State of California Water Resources Control Board requires owners of underground storage tank systems within 1,000 feet of a public drinking water well, to provide that agency with satisfactory results of an Enhanced Leak Detection (ELD) test. Prior to scheduling the ELD test it will be necessary to complete upgrades and repairs to the Secondary Containment Component of our tank. Quotations were solicited from vendors known to perform such tasks, the results of which were as follows: , Pacific Systems Electric $20,848.80 California Hazardous Services $39,550.00 Charles E. Thomas Company $55,787.00 029 FISCAL IMPACT Fiscal impact will be $20,848.80. Sufficient funds for this project are available in the Water Division's 2003/2004 operating budget. Prepared by: Phyllis Bradley Administrative Services Supervisor 030 CONSENT CALENDAR TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL �/ FROM: JOSEPH F. HSU, DIRECTOR OF UTILITIES4 � DATE: JULY 23, 2003 SUBJECT: PLAN AND SPECIFICATIONS FOR FURNISHING & INSTALLING UNDERGROUND ELECTRIC SUBSTRUCTURES ALONG GLADSTONE STREET BETWEEN VINCENT AVENUE &VERNON AVENUE. RECOMMENDATION It is recommended that the Utility Board/City Council: 1) Adopt the plan and specifications for furnishing and installing underground electric substructures along Gladstone Street between Vincent Avenue and Vernon Avenue. 2) Authorize the Office of City Clerk to advertise and solicit bids. V u,. BACKGROUND Earlier this year, Azusa Light & Water started design and engineering of the new Kirkwall Substation located at 1160 West Gladstone Street. As part of substation project, new underground electric substructures, consisting of vaults and conduits will have to be installed along Gladstone Street in order to connect the new Kirkwall Substation with the existing Azusa Substation. When completed, these new underground electric distribution line circuits will pick up portions of existing electrical load that are currently served from the existing Azusa Substation, and will thereby improve system reliability. Four underground electric circuits will be constructed from the Kirkwall Substation. Moreover, in June 2003, the City of Azusa & Edison entered into an Engineering & Design Agreement with the understanding that Azusa Light & Water would furnish and install a portion of underground conduits for Edison for the sole purpose of relocating the affected 12 kV Edison lines in front of substation site. This Edison relocation work was intended to enhance the landscaping and substation front wall improvements. Although Edison could have installed it separately at the City's expense, Azusa Light & Water will .have the opportunity to reduce costs for a portion of the underground conduit construction by combining this work into one bid contract. This will also avoid duplicate construction work by two different entities along the busy Gladstone Street roadway. - 031 FISCAL IMPACT This project is budgeted this fiscal year under Electric Division Substation Project and funds are available in Account # 33-80-000-730-7140/82000B. Prepared by: F. Langit Jr. PE, Senior Electrical Engineer H. Wong PE, Associate Engineer Attachment: 0 ED2003-3 Spec. pdf 4 `' 032 e twork, !Ip]!Cr realism M .at, prolaet developer or contractor toll furniM all labor, erlal, soIramt ant eased— m [ and tactic's an utleiyaava aloof.. at—.. Meas Include but int llcltaa on scum, sharing at a rmtlm, thar.na[lon of conduits W eubet[uctu[ef, sone • backfilling, coyvetlm of berth]]• peamnm:t re u[[etLq. ruction of c loprwont., a3aweal at construction debris sous '" .pputant wtk. II PP(u[R a . pro'. aevelowr, consultant at designer. agent .bell prepareeaa .racist or pian. sMing the .caw and extent of the[a Swolved. P[olett plain inarolv4p Me n.cand of electric service w intoning utility linea for electric n wits aMu he autnittea for revl« to Mus. or I sl— all undergrnua electric .uMtave[ui.e ..X be lustallea m per. apyr. plan and specification. fm the pro]ect. 2) array ids extant: prior t acting c ruction. tM pen traject amltp[ o ....Ior�swl eb,.I. .I, spat. --tion pecel[s for any peri wt involves digging In the public tiyo[vay at e...mnu. tans..— Permit: engineering bew[O.nt 213 Rut fwtNll Rvulevara Riese, califomia 91102 del. 1 16261 112-52Re ]I CQRPRCRIR pRR1Y#91R[L[iY: Cm[[aaot Mall netlfy ause[s[cWd lervlw Mort I0L.1 before emrocl[q r1M any exuve[fons. Contractor .MlI ace be.- the Bract location of all underground euMt[uctwea at ut111Wa I—indfop service emner;tI— and protect the. eLLe[ip, ...tiuRuia. during cmetmRlm. any aavge a— by tM c.," -p- to chase ealr[1ng euNtmc[wee sill d tM total i.Dpm.lbillty of the on auger t cactor W wmaa mm t theas ags..struc. Mall he -at." totfhI. wigiru' amLit I-. gra :nan ti.. sodium's. —X.,"substructures o utilities not .hmm m the aro[wM plan shall be the soap—iblllty of contractor performing the wry. Ntleig[awq utilities enter m this plan aer. obtained fm rvallMle records of respective utility cancer. tl cours SCSI. flbll T .; Iretaliatlm of ung-draotl electric ewWefu I .ubstrwdu.e reguirs, field inspection vAapproval by Musa tight . pate[ hewers. during cmutm et[[i. [ to :cent, Mays,NDN s Det.[ 0.par m�t .M .chedule an apfaldtant for tmpectlm 24 haw. In'Ing"'. Cotl.ted Snat.l l.[fm 'u tut][• dravl.gs .bell he .'shitted by c contractor et non's. Iwu1lM wtlan..: betruttuus rill int he .caepted unless duly lnawcted . art. h[ uwar; tght t Rater Department. contractor or acne[ cell perform ham ions repaired by Musa Uot 4 motor print to p61ieg ... and erurgirtng thea eernCo. 12 auRxlc !ws[wcrvRe ]x[Lwm[as: c correct shall CorreR. .of us enter .,.t saGdul. a fetytnm to be present Mai .ring e[ breaking Into taconite, vaults• pull no or [ransfome[ ones that contain eorglmed calla. . qulivet. 1) RRL fGea69 I ply MadIQ1: IMn� f It Manes necessary to mks . change,change,M gor er desist. f[m ter. plan, contract— duly mtlty uM: wpe.todac ... iseng emrt.�reN, . luctive or aunga.tt.mmthe tiN't . .Igrw.d pled. [M R:ginmr .boll give NYem .ctw . duly [Meed plans MSe , Mall Mans ort of [M approved pian.. Contractor swl .vela veMl .Nem Wm Lpla®ting —jar plan M.ng.. or sashimi th the field. 11 RlGR-OP-RRx 1 WBm11R: Iovu11.[1on of "or, ami electric eubut[ueh[e. In p.ivef. property recti— the grant of .-cart. Iaodanee .bell aeon[. era giant to Musa LIN:I a lata. Data. rt the electric au asets to install Me electilc facilities N private property. once 11 COl ,I daft,RGRI4:.1 white rMll M ewrontl RC picnic eNe sola s0 and .boll creat ren N . Standard M-1 ma actio .,Ill. Cana:elle Na11 M Installed ape[ plan and in .—aid—. HM latest [evlalm of Ms tem WangP[ouN Cr®lttee Standoug placement Inectuar m. 1) .1 sky.- a ffNOl: all cmNic —.a. —4 MM..1 M ppraued roc,pl otic "Ma",. a. ..I— radius. unless ..- oyeelflN, .boll M ]S time rob emduit diameter In I... Reel floor fall swap shall he installed Including the first ten fee[ of s eairm cel ci[ pole rorAts Nn floor cauN its a e erpsato wtmttu damgounumfrom vehicular traffic. Conduit aI... are 1• or a- for 'dory covduf's. 1' far aecama[y CarAnite and 3' frr all saMq .I. as .,.Ill. in [hl approved pled. In any cmEuit ton Na 9uii e .agog nt .ceps mW bods Moen ton .—.it- pointe I.) .ofoyn...Vt a ffp ,bar : All caNuim metalled .boll Man, -Iola! arvande of A. face IinisMd areae to tW of camslt -car. .--t. C.I. lost.11ad in residential private property .Mil how Nnlom coverage of 30' fret finished stage to top of consul M. wnrase sey he reduced to 21• rIth depa[tmnt approval. Electric eaduita atoll M .operated over from .slating subamau[.. o utilities wamm s by a atuf®m rl.l .—. of 32' nrrlrmI, ant a aalullr N:m t .acing. otMf utllltl., o suMtractors M31 int M installed in w[ellel directly above electric consults. ill 1-800-422-0133 DI RT t w•nvse -- .� ..eewou.rm, sass na ill [pROUli tJIWt3E in 3 ... iwulfea f. k tom's M¢tvMn eaMufu and winta.it. s.to Plastic -...—. to soon t. n. i ishoZov by . athima n .tadarr .-I.:- .nowt astall. I]) [VIWIy [EA a pull as, .. vMll havf conduit antPul SnvGvll a 31W cis mMuiu muum s tetvr. CWFPi6 lO6RImCNIR 111 P. !6[ I sup Ie iv[alled a.per aper eanaul.mere last - waver the bream at pi cwfw: 1. got cpproved treffic. ;'en NI nLnom of 36' or ant install at to end SPECIFICATION F—D2003-3 UNDERGROUND ELECTRIC SUBSTRUCTURES FOR FEEDERS FROM KIRKWALL SUBSTATION ALONG GLADSTONE STREET BETWEEN VINCENT AND VERNON AVENUE APPBOVEO: BY: N.V Jomawk. EB20W-0 L 7-1603 33 DETAIL "A" NTS SPECIFICATION ED2003-3 REVISIONS UNDERGROUND ELECTRIC SUBSTRUCTURES FOR FEEDERS FROM wrz xo. oaomlp+ m cnc. �sroaea KIRKWALL SUBSTATION ALONG GLADSTONE STREET B/T VINCENT AND _ VERNON AVENUE. AZUSA ��' OflH BY. HV I NO. EMOIM[PA E0200}- APPHOYED OATS T•16 SHEET LIGHTS WATER dwwarowalJliLIT1Ee SCBE 1'.W 2,E 034 FROM: JOSEPH F. HSU, DIRECTOR OF UTILITIES DATE: JULY 23, 2003 SUBJECT: AUTHORIZATION TO INCREASE THE POWER PURCHASE WITH PPM ENERGY, INC., FROM THREE MEGAWATTS TO SIX MEGAWATTS OF WIND POWERED . ELECTRICAL ENERGY RECOMMENDATION It is recommended that the Utility Board approve the purchase of three additional megawatts of wind power from PPM Energy, Inc. ("PPM") and authorize the Mayor to execute the agreement with PPM for the purchase of six megawatts once the final agreement is prepared, for the purchase of wind powered electrical energy. BACKGROUND On May 21, 2003, the Utility Board approved the purchase of three megawatts of wind power energy from PPM's 145.6 MW High Winds wind generation facility currently under construction in Solano County, California. Since that time, two events have resulted in delays in finalizing the contract: (1) the project has experienced delays in start-up testing which delayed commercial operation to September 1, 2003; and (2) two of the Southern California Public Power Authority ("SCPPA") members (Cities of Banning and Vernon) did not obtain timely authorizations from their respective governing bodies and dropped out of the SCPPA renewable energy coalition. This latter event is expected to adversely impact the contracts of the remaining participants (Anaheim, Azusa, Colton, Glendale, Pasadena) with PPM and could jeopardized the procurement process for all participants, since the total MW purchase now falls short of the minimum purchase requirement by 3 MWs. Staff continues to believe this resource is very viable and a cost effective way for the City to meet and indeed exceed the renewable energy portfolio standard. Thus staff is recommending that the Utility Board approve the purchase of three additional megawatts from PPM in order to meet the contract minimum purchase requirement. The purchase will constitute an additional 4% of energy to serve retail load and when combined' with the previous purchase and City's Hoover energy, will provide the City with approximately 11% of renewable energy to serve Its retail load. 035 The proposed PPM contract is a fixed price contract for the next twenty years. Although the contract price is slightly above the prevailing price for non renewable, power, it will provide the City with hedges against volatile spot market prices tied to natural gas. The economy of scale is such that it is unlikely the City would be able to arrange independently a more cost effective alternative for such small amount of renewable energy. Given these benefits, staff believes the additional purchase is warranted and thus recommends approval. FISCAL IMPACT The initial and additional purchase of firm wind energy is expected to cost up to $250,000 per year more than generic non-renewable power, resulting in a rate premium of approximately 1.0% for the next five years. Currently, there are limited funds available from the Public Benefit Charge (approximately $60,000 per year) to reduce the cost of this purchase and anticipated funds from PBC are likely to be insufficient for the next five years for this purpose. Since the recent retail rate adjustment of 10% took into account the effects of increased power resource costs due to renewable energy procurement, there is sufficient funding within the existing retail rate structure to support the additional purchase without further raising the rates. Prepared by: Bob Tang, Assistant Director of Resource Management Attachment: In SCPPA Agreerrent.doc V :. 036 Revisions as of Ju(v_7. 2003 Deleted: THIS WORKING DRAFT DOES NOT CONSTITUTE A BINDING OFFER, SHALL NOT FORM THE BASIS FOR AN AGREEMENT BY ESTOPPEL OR OTHERWISE, AND IS CONDITIONED UPON EACH PARTY'S RECEIPT OF ALL REQUIRED MANAGEMENT APPROVALS (INCLUDING FINAL CREDIT AND LEGAL APPROVAL). ANY ACTIONS TAKEN BY A PARTY IN RELIANCE ON THE TERMS SET FORTH IN THIS WORKING DRAFT OR ON STATEMENTS MADE DURING NEGOTIATIONS PURSUANT TO THIS WORKING DRAFT SHALL BE AT THAT PARTY'S OWN RISK. UNTIL THE POWER PURCHASE AGREEMENT IS NEGOTIATED AND SIGNED, NO PARTY SHALL HAVE ANY OTHER LEGAL OBLIGATIONS, EXPRESSED OR IMPLIED, OR ARISING IN ANY OTHER MANNER UNDER THIS WORKING DRAFT OR IN THE COURSE OF NEGOTIATIONS. LONG-TERM POWER PURCHASE AGREEMENT (WIND POWER) MADE BETWEEN PPM ENERGY, INC., AS SELLER AND [XXX[, AS PURCHASER DATED AS OF , 2003 Ponlnd3-1418531.21 0058892-00026 Deleted: Pardnd9-141.8531.20 0058892-00026 - . 037 TABLE OF CONTENTS RECITALS....................................................................................Error! Bookmark not defined. ARTICLE 1 - DEFINITIONS....................................................... Error! Bookmark not defined. ARTICLE 2 - TERM AND TERMINATION...............................Error! Bookmark not def ned. 2.1 Term.......................................................................Error! Bookmark not defined. 2.2 Filing of Agreement with FERC............................Error! Bookmark not defined. 2.3 Right to Terminate Prior to Commercial OperationError! Bookmark not defined. 2.4 Designation of Alternate Project............................Error! Bookmark not defined. 2.5 Survival of Provisions............................................Error! Bookmark not defined. ARTICLE 3 - PURCHASE AND SALE.......................................Error! Bookmark not defined. 3.1 Purchase and Sale of Delivered Energy.................Error! Bookmark not defined. 3.2 Environmental Attributes.......................................Error! Bookmark not defined. 3.2.1 Purchase and Sale of Environmental AttributesError! Bookmark not defined. 3.2.2 Reporting of Ownership of Environmental AttributesError! Bookmark not defined. 3.2.3 Further Assurances.....................................Error! Bookmark not defined. 3.3 Contract Rate.........................................................Error! Bookmark not defined. 3.4 No Change in Rates ...............................................Error! Bookmark not defined. ARTICLE 4 — BASE SCHEDULE; BASE SCHEDULE ADIUSTMENTSError! Bookmark not defined. 4.1 Base Schedule ........................................................Error! Bookmark not defined. 4.2 Base Schedule Adjustments...................................Error! Bookmark not defined. ARTICLE 5 - BILLING AND PAYMENTS................................Error! Bookmark not defined. 5.1 Billing and Payment...............................................Error! Bookmark not defined. 5.1.1 Calculation of Delivered Energy; Invoices and PaymentError! Bookmark not defined. 5.1.2 Disputed Invoices.......................................Error! Bookmark not defined. 5.1.3 Set -offs and Deductions.............................Error! Bookmark not defined. 5.1.4 Interest on Past Due Amounts ....................Error! Bookmark not defined. 5.1.5 Form and Transmittal of Invoices..............Error! Bookmark not defined. 5.2 Title and Risk of Loss............................................Error! Bookmark not defined. 5.3 Credit Support ........................................................Error! Bookmark not defined. 5.3.1 Seller's Guarantor.......................................Error! Bookmark npt°defined. 5.3.2 Purchaser's Credit Support .........................Error! Bookmark not defined. 5.3.3 Cash As Additional Security ......................Error! Bookmark not defined. 5.4 Allocation of Taxes................................................Error! Bookmark not defined. 5.5 Financial Statements..............................................Error! Bookmark not defined. ARTICLE 6 - MEASUREMENT AND METERING ...................Error! Bookmark not defined. 6.1 Metering Equipment..............................................Error! Bookmark not defined. 6.2 Measurements Bookmark not defined.---- `.------b:3.----Testing ........................................................Error! and Correctiun::.::::::.::::::.::::::.::::.:::::... :::..-:ErroT!-Bookmarknat-defioed:-- Deleted: PoNnn3-1419531.20 0059892-00026 ' Ponlnd3-1418531.21 0058892-00026 MM 6.3.1 Required Testing........................................Error! Bookmark not defined. 6.3.2 Standard of Meter Accuracy; Resolution of Disputes as to Accuracy ....................................................Error! Bookmark not defined. . 6.4 Maintenance of Records ..........i.............................Error! Bookmark not defined. 6.5 Right To Audit .......................................................Error! Bookmark not defined. 6.5.1 Audit Rights...............................................Error! Bookmark not defined. 6.5.2 Refunds of Overpayments and UnderpaymentsError! Bookmark not defined. ARTICLE 7 - NOTICES...............................................................Error! Bookmark not defined. 7.1 General...................................................................Error! Bookmark not defined. ARTICLE 8 - DEFAULTS AND REMEDIES .............................Error! Bookmark not defined. 8.1 Events of Default ...................................................Error! Bookmark not defined. 8.2 Rights Upon Event of Default................................Error! Bookmark not defined. 8.3 , Cure Rights of Seller Lender and Purchaser LenderError! Bookmark not defined. 8.4 Default under Related Agreement .........................Error! Bookmark not defined. 8.5 Net Out of Payables Upon Termination .................Error! Bookmark not defined. 8.6 Closeout Setoffs .....................................................Error! Bookmark not defined. ARTICLE 9 - LIMITATION OF LIABILITY..............................Error! Bookmark not defined. ARTICLE 10 - DISPUTE RESOLUTION....................................Error! Bookmark not defined. ARTICLE l l - ASSIGNMENT .....................................................Error! Bookmark not defined. 11.1 Restriction on Assignments...................................Error! Bookmark not defined. 11.2 Assumption by Assignee; No Release from LiabilitiesError! Bookmark not defined. 11.3 Binding Effect ........................................................Error! Bookmark not defined. ARTICLE 12 - FINANCING LIENS............................................Error! Bookmark not defined. 12.1 Assignment as Security to Seller Lender...............Error! Bookmark not defined. 12.2 Assignment as Security to Purchaser Lender ......... Error! Bookmark not defined. ARTICLE 13 - REPRESENTATIONS, COVENANTS, AND WARRANfIESError! Bookmark not defined. 13.1 Seller's Representations and Warranties ...............Error! Bookmark not defined. 13.2 Purchaser's Representations and Warranties ......... Error! Bookmark not defined. Article 14 - MISCELLANEOUS ...................................................Error! Bookmark not defined. 14.1 Severability............................................................Error! Bookmark not defined. 14.2 Amendment............................................................Error! Bookmark not defined. 14.3 Waiver....................................................................Error! Bookmark not defined. -. 14.4 Further Assurances .................................................Error! Bookmark not defined. 14.5 No Third -Party Beneficiaries.................................Error! Bookmark not defined. - 14.6 Time.......................................................................Error! Bookmark not defined. 14.7 Headings, Captions; Construction; Conflict Between Agreement and ' -----£xhibits-.::::.-.::; :..:.:::::.::::.-.-.::::::.:::::.:::.-.-.::::::.::::.-.:;;::::Error!-Bookmarknot-defined:---... Deleted: Pordm3-1419531.20 0)58992-00026 ' Ponlndl-1418531.21 M8892-0002fi 039 14.8 Forward Contract ...................................................Error! Bookmark not defined. 14.9 Entire Agreement ...................................................Error! Bookmark not defined. 14.10 Confidential Information .................................... :.. Error! Bookmark not defined. 14.11 Press Releases ........................................................ Error! Bookmark not defined. 14.12 Governing Law ......................................................Error! Bookmark not defined. 14.13 No Agency.............................................................Error! Bookmark not defined. 14.14 Cooperation............................................................Error! Bookmark not defined. 14.15 Waiver of Jury Trial...............................................................................................39 14.16 Effect of Force Majeure Event...............................Error! Bookmark not defined. 14.17 Non -Recourse Obligations.....................................Error! Bookmark not defined. Ill Panlnd3-1418531.21 0058 892 0002 Deleted: Port1M3-1418531.70 0058892-00026 040 I---------------- POWER PURCHASE AGRJEMENT _ This Power Purchase Agreement ("Agreement-'), dated as -of -this _ day of _, 2003, is between PPM Energy, Inc., an Oregon corporation ("Seller"), and [XXXI, a municipal corporation created pursuant to the laws of the State of California ("Purchaser"). Seller and Purchaser are sometimes referred to in this Agreement collectively as the "Parties" and individually as "Party." RECITALS WHEREAS, PPM has rights to the electric energy output and associated environmental attributes of a wind turbine electrical generation facility with an expected installed capacity of 145.8 MW to be constructed on a site located in Solano County, California (the "Project'; and WHEREAS, Seller desires to sell, and Purchaser desires to purchase electric energy equal to the Metered Output of an undivided [I ( ) MW sharer of the installed capacity of the Project or of an Alternate Project (as defined below), along with any and all Environmental Attributes associated with such Metered Output; and WHEREAS, Seller is prepared to deliver and Purchaser is prepared to receive an amount of electric energy equal to such amount of the Project's or the Alternate Project's Metered Output, but shaped into flat LJ ( ) MW' hourly blocks and delivered at the Delivery Point; and WHEREAS, Seiler may obtain the electric energy for delivery at the Delivery Point from market purchases or from any other source or sources or any combination thereof as determined by Seller in its sole discretion, but will deliver the associated Environmental Attributes directly from the Project or an Alternate Project at the time of production. NOW THEREFORE, in consideration of the mutual covenants contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1 DEFINITIONS Unless otherwise required by the context in which any term appears, (i) capitalised terms used in this Agreement shall have the meanings specified in this Article 1; (ii) the singular shall I The installed capacity for each member purchaser (each contracting separately) would be as follows: Anaheim (6 MW); Azusa (6 MW); Colton (3 MW); Glendale (9 MW); and Pasadena (6 MW). 2 This number will be the installed capacity multiplied by an assumed capacity factor of 33.33%x, as follows: Anaheim (2 MW); Azusa (2 MW); Colton (1 MW); Glendale (3 MW); and Pasadena (2 MW). __-------- _______-------------- __--------- _---------- __--------- _-- ---------- - POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 0058892-00026 Deleted: 3 Deleted: Bam40 MW); Deleted: and Ve=n(15MW) Deleted: 1 Deleted: Banning 0 MW): Deleted:; and Vermn (5 MW) Deleted: Ponlnd3-x418531.20 0058892-00026 041 include the plural and vice versa; (iii) references to "Articles," "Sections," "Schedules," "Annexes," "Appendices," or "Exhibits" (if any) shall be to articles, sections, schedules, annexes, appendices, or exhibits hereof; (iv) all references to a particular entity shall include a reference to such entity's successors and permitted assigns; (v) the words "herein," "hereof," and "hereunder" shall refer to this Agreement as a whole and not to any particular section or subsection hereof; (vi) all accounting terms not specifically defined herein shall be construed in accordance with GAAP, consistently applied; (vii) references to this Agreement shall include a reference to all appendices, annexes, schedules, and exhibits hereto, as the same may be amended, modified, supplemented, or replaced from time to time; and (viii) the masculine shall include the feminine and neuter and vice versa. "Additional Security" shall mean: (1) a Letter of Credit; or (2) cash (immediately available funds) in the amount of $50,000 per MW of Installed Capacity subject to this Agreement, which cash must be delivered to a Custodian to be held thereby as security for the Party entitled to the benefits thereof pursuant to an escrow agreement satisfactory in form and substance to the Party for whose benefit such cash is being provided, which escrow agreement shall incorporate the provisions of Section 5.3.3 hereof; or (3) a guaranty from a Qualified Guarantor of: (i) Seller's or Purchaser's obligations under this Agreement, as applicable; or (ii) The obligations of Seller's Guarantor under the guaranty agreement executed and delivered by Seller's Guarantor hereunder; in either case on substantially the same terms and conditions set forth in the form of guaranty agreement attached hereto as Exhibit B. "Affiliate" shall mean, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition, "control" (including, With correlative meanings, the terms VAntrolled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Alternate Project" means, individually or collectively, an undivided MW share of no more than two replacement wind turbine electrical generation facilities designated by Seller in its sole discretion that (a) are owned by Seller or its Affiliate or are facilities from which Seller or Deleted: Pon1M3a418531.20 Affiliate- - -• - - - - its A�lia[e holds nghts to purchase output and Environmental Attributes, (b} werep ace roto 0058892-00026 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Pordnd3-1418531.21 00.58892-00026 042 operation after September 26, 1996, and (c) are projected to produce the same Average Annual Capacity as the installed capacity committed to this Agreement. For example, if the capacity factor of the Project is projected to be 33.33% and Purchaser is purchasing a 3MW share of the Project's Output, the Average Annual Capacity would be one (1) average MW (aMW). If an Alternate Project was projected to have a 37% capacity factor, the Purchaser's share of the Metered Output of the Alternate Project would be adjusted to 2.7 MW so as to yield one (1) aMW from the Alternate Project per year. In addition, if Seller determines in its sole discretion that the Project is not sufficient to serve this Agreement, Seller may designate one (1) supplemental wind turbine electrical generation facility in addition to the Project, in which case the Project and such supplemental facility shall be referred to collectively as the "Alternate Project." "Applicable Law" shall m can, with respect to any Person and i is Affiliates, a Il 1 aws, statutes, codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations, governmental approvals, licenses and permits, directives, and requirements of all regulatory and other governmental authorities, in each case applicable to or binding upon such Person and, in the case of Seller, the Project (and, if applicable, the Alternate Project). "Average Annual Capacity" shall mean the Contract Capacity Share multiplied by the expected annual capacity factor of the Project or Alternate Project. The Average Annual Capacity hereunder is [ Y ] ( ) MW, based on a [ X ] ( ) MW Contract Capacity Share of the Project and a 33.33 percent expected Project capacity factor. "Balancing Account" shall have the meaning given in Article 4. "Base Schedule" shall have the meaning given in Section 4.1. "Business Day" shall mean each Day that is not a weekend Day or a federal holiday. " CAISO" shall mean the California Independent System Operator Corporation, or its successor. "CAMD" shall mean the Clean Air Markets Division of the Environmental Protection . Agency, any successor agency and any other state or federal entity that is given jurisdiction over a program involving transferability of Environmental Attributes. V G' "Capitalized Lease Obligation" means the obligation of a Person to pay rent or other amounts under. any lease of real or personal property which obligation is required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP (including the Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board, but without regard to paragraph 48 of such Statement). For purposes of this Agreement, the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP (including such Statement No. 13). ---- LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] P nlnd3-1418531 21 00588924)0026 Deleted: Pallo�1853120 0058842-00026 043 "Commercial Operation Date" shall mean the date on which any of the wind turbines in the Project (or in the Alternate Project) representing at least gnne-hundred five (105)'MW of Deleted: e=amdmnr o3z> Installed Capacity and all other portions of the Project (or of the Alternate Project) necessary to put such Installed Capacity of the Project (or the Alternate Project) into operation with the Interconnection Facilities and the Transmission System have been tested and commissioned and are both authorized and able to operate and deliver energy to the Transmission System in accordance with Prudent Utility Practices._.... ------------- _.. -- Deleted: [NOTE -TRACKS COD UNDER PPA, WHICH OCCURS WHEN 9016 OF 145.8 MWIS "Contract Capacity Share" shall mean Purchaser's undivided [ X 1 ( ) MW share of 1NSTALLEDAND the Installed Capacity, based on an assumed capacity factor of 33.33%. The Contract Capacity INTERCONNECTED./ Share shall be adjusted to reflect the capacity factor for the Project or Alternate Project (as reasonably determined under the Project PPA for the Project, or as otherwise reasonably determined for such Alternate Project) such that the Average Annual Capacity does not change. For example, if the Project's actual capacity factor is 33.00%, the Purchaser's Contract Capacity Share shall be increased to an undivided [ X ] ( ) MW share of the Installed Capacity for purposes of determining Metered Output. "Contract Rate" shall have the meaning set forth in Section 3.3. "Contract Year" shall mean the Days from January I through December 31, inclusive, of any given year. The first Contract Year shall commence on the first January 1 occurring after the Commercial Operation Date. "Credit Requirements" If at the time in question the Purchaser does not have Electric Revenue Bonds outstanding, then Purchaser meets the Credit Requirements as long as Purchaser is not experiencing, with respect to the operation of its electric system, any effect or change that, alone or in the aggregate, materially adversely affects or is likely to materially adversely affect (i) Purchaser's ability to perform its obligations under this Agreement in a timely manner, or (ii) the performance, operations, business, property, assets, liabilities or condition (financial or otherwise) of the Purchaser. Seller meets the Credit Requirements if either it or Seller's Guarantor (x) has a long-term credit rating (corporate or long-term senior unsecured debt) of (1) "Baa3" or higher by Moody's; or (2) "BBB-" or higher by S&P, or (y) the Total Consolidated Debt of Seller or Seller's Guarantor does not exceed 65% of the Total Consolidated Capitalization of the Seller or Seller's Guarantor, as applicable. 4 id.. "Custodian" shall mean a commercial bank or trust company organized under the laws of the United States of America or a political subdivision thereof, whose long-term senior unsecured debt is rated at least "A" by S&P or "A2" by Moody's. "Day" means a period of 24 consecutive hours beginning at 00:00 -hours Prevailing Pacific Time on any calendar day and ending at 24:00 hours Prevailing Pacific Time on the same calendar day. - Deleted: Pallod3-1418531.20 - 0058892-00026' LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Pordnd3-1418531.21 0058892,00026 "Debt" of a Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds (other than surety bonds), debentures, notes or other similar instruments, (iii) all obligations of such' Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (iv) all Capitalized Lease Obligations of such Person, (v) all non -contingent reimbursement, indemnity or similar obligations of such Person in respect of amounts paid under a letter of credit, surety bond or similar instrument, (vi) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, and (vii) all Debt of others Guaranteed by such Person. "Default Notice Parties" shall have the meaning as set forth in Section 8.1. "Delivered Energy" shall mean the electric energy scheduled to Purchaser at the Delivery Point, as specified in Article 4. "Delivery Point" SP -15 as defined under the CAISO tariff on the Effective Date of this Agreement. If such definition of SP -15 changes in any material respect or the zone ceases to exist, Seller shall promptly designate an alternate Delivery Point that most nearly resembles (in terms of liquidity, homogeneity and relative economic impact on each Party) the previous definition of SP -15; provided, however, that such designation shall be subject to the consent of Purchaser's authorized representative, which such representative shall not unreasonably condition, withhold or delay. In the event that the Parties cannot agree on an alternate delivery point, then the Delivery Point shall be the 230 kV side of the Mead substation. "Disclosing Party" shall have the meaning set forth in Section 14.10. "Downgrade Event" (1) when used with respect to the Seller or the Seller's Guarantor, shall mean any event that results in such Person failing to meet the Credit Requirements; (2) when used with respect to the Purchaser during any period in which the Purchaser has Electric Revenue Bonds outstanding, shall mean any event that constitutes a default under Purchaser's Electric Revenue Bonds; and (3) when used with respect to Purchaser during any period in which the Purchaser does not have Electric Revenue Bonds outstanding, shall mean any event that results in the Purchaser failing to meet the Credit Requirements. "Due Date" shall have the meaning assigned thereto in Section 5.1.1 hereof. "Effective Date" shall have the meaning set forth in Section 2.1. "Electric Revenue Bonds" means the outstanding revenue bonds heretofore or hereafter issued by Purchaser and payable from the revenues derived by Purchaser from its electric distribution system and related operations. "Environmental Attributes" shall mean any and all fuel, emissions, air quality, or other ,environmental -characteristics, -credits; -benefits, reductions; -offsets; and allowances, -howsoever - LONG -TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531 21 00588924)0026 Deleted: Pordnd3-141.8531.20 005889240026 045 entitled or named, resulting from the use of wind generation or the avoidance of the emission of any gas, chemical, or other substance to the air, soil or water attributable to the Metered Output generated by the Project (or by the Alternate Project) during the Tenn and in which the Seller has property rights or will have property rights upon such attributes coming into existence, and include without limitation any of the same arising out of legislation or regulation concerned with oxides of nitrogen, sulfur, or carbon, with particulate matter, soot, or mercury, or implementing the United Nations Framework Convention on Climate Change (the "UNFCCC") or the Kyoto Protocol to the UNFCCC or crediting "early action" with a view thereto, or laws or regulations involving or administered by the CAMD, and all Environmental Attribute Reporting Rights, but specifically excluding only the PTCs. One (1) MWh of electrical energy from the Project (or an Alternate Project) corresponds to one (1) MWh Environmental Attribute. "Environmental Attributes Reporting Rights" shall mean all rights to report ownership of the Environmental Attributes to any person or entity, under Section 1605(b) of the Energy Policy Act of 1992 or otherwise. et seq. "Event of Default" shall have the meaning set forth in Section 8.1. "Federal Power Act" shall mean the Federal Power Act, as amended, 16 U.S.C. § 791a, "FERC" shall mean the Federal Energy Regulatory Commission and its predecessor and successor agencies. "Force Majeure Event" shall mean any act or event that delays or prevents a Party from timely performing obligations under this Agreement or from complying with conditions required under this Agreement to the extent that such act or event is reasonably unforeseeable and beyond the reasonable control of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance, including, without limitation: (i) an act of God or the elements, extreme or severe weather conditions, explosion, fire, epidemic, landslide, mudslide, sabotage, lightning, earthquake, flood or similar cataclysmic event, transportation delays, unavailability of materials, transmission curtailment or outage, an act of public a nemy, war, blockade, c ivil i nsurrection, r iot, civil d isturbance o r s trike o r other labor difficulty caused or suffered by a Party or any third party beyond the reasonable control of such Party or its Affiliates, or an event that constitutes an event of force majeure affecting4W,Project Owner under the Project PPA (whether such cause is similar or dissimilar to the foregoing); (ii) any restraint or restriction imposed by law or by rule, regulation, or other acts of governmental authorities, whether federal, state or local which by exercise of due diligence and in compliance with applicable law a Party could not reasonably have been expected to avoid and to the extent which, by exercise of due diligence and in compliance with applicable law, has been unable to overcome (so long as the affected Party has not applied for or assisted such act by a governmental authority); or (iii) electric transmission interruptions or curtailments; provided that the tens "Force Majeure Event" does not include (a) economic conditions that render a Party's performance7-of- this -Agreement --at--the--Contract Rate -unprofitable- or otherwise -uneconomic - LONG -TERM Pd WER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Po dnd3-1418531.21 0058892-00026 Deleted: PaNnd3-1418531.20 0058892-00026 ME (including Purchaser's ability to b By energy o r Environmental A [tributes at a lower p rice, or Seller's ability to sell energy or Environmental Attributes at a higher price, than the Contract Rate), (b) a governmental act by Purchaser that delays or prevents Purchaser from timely performing its obligations under this Agreement, (c) a less than expected wind resource at the Project or Alternate Project, (d) breach by a party or parties responsible for supplying energy to Seller for delivery to Purchaser under this Agreement, and (e) breach by a party or parties responsible for supplying Environmental Attributes to Seller for delivery to Purchaser under this. Agreement ( with t he r emedy for a ny s uch b reach to b e g ovemed b y S ection 14.16(d) of this Agreement). "GAAP" means generally accepted accounting principles in the United States of America. "Guarantee" by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance.or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement t o k eep-well, to purchase assets, goods, securities or services, t o take -or -pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose o f a ssuring i n any o ther m anner t he o bligee o f s uch Debt o r other obligation o f the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Information" shall have the meaning set forth in Section 14.10. "Installed Capacity" shall mean the nominal or "nameplate" number of MW each wind turbine is capable of producing, multiplied by the number of wind turbines installed at the Project (or at the Alternate Project). For example, the Project wind turbines have a nameplate capacity of 1.8 MW per turbine multiplied by 81 wind turbines yields a Project Installed Capacity of 145.8 MW. "Interconnection Facilities" shall mean the interconnection facilities, cgptrol and protective devices, and metering facilities required to connect the Project (or the Alternate Project) with the Transmission Provider's Transmission System in order to effectuate the purposes of this Agreement, including without limitation the Project Substation and the line connecting the Project Substation to the existing lines of the Transmission System. "ISO" shall mean the California Independent System Operator or its successor. "Kilowatt-hour" or "kWh" shall mean a unit of energy equal to one kilowatt of power Supplied yr taken from -an -electric -circuit- forone-hour:------------------------------------------------- ------"- LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PW [nd3-1418531.21 0058892-00026 belete0: PoAnd3-1418531.20 0058892-00026 047 "Letter of Credit" shall mean an irrevocable, transferable standby letter of credit in form and substance acceptable to the Party in whose favor such letter of credit is issued (the "Guaranteed Party'), naming the Guaranteed Party (and its permitted transferees) as the person entitled to demand payment and present draw requests thereunder, which letter of credit: (1) is issued by a U.S. commercial bank or a foreign bank with a U.S. branch, with such bank having a credit rating on its senior unsecured debt of: (a) "A2" or higher from Moody's; or (b) "A" or higher from S&P; (2) permits the Guaranteed Party to draw up to $50,000 per MW of Installed Capacity subject to this Agreement for the purpose of paying any and all amounts owing to such Guaranteed Party hereunder; (3) if the Letter of Credit is issued by a foreign bank with a U.S. branch, permits the Guaranteed Party to draw upon the U.S. branch; (4) provides that within five (5) Business Days following any such drawing, the issuer of such letter of credit shall reinstate the amount available for drawing thereunder to $50,000 per MW of Installed Capacity committed to this Agreement, with such reinstatement to be in form and substance satisfactory to the Guaranteed Party, and also provides that if not so reinstated within such period, the Guaranteed Party shall be entitled to draw the entire remaining amount available thereunder; and (5) additionally permits the Guaranteed Party to draw the entire amount available thereunder if such letter of credit is not renewed or replaced at least thirty (30) Business Days prior to its stated expiration date. "Lien" means, with respect to any asset, any applicable mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset that it or one of its Subsidiaries has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to ssick:asset. "Megawatt -hour" or "MWh" shall mean a unit of energy equal to one thousand kWh. "Meter" shall mean an instrument or instruments meeting applicable Technical Requirements and electric industry standards used to measure and record the volume of the Metered Output "Metered Output" shall mean the electrical energy generated by Purchaser's Contract ,Capacity Share -of the -Pro Project Alternate -Project); -measured -or -calculated -at -the -high -side of- ----. - Deleted: PUNn,13-lalss3tm P tY-- 10058892-= LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PonInd34418531.21 0058892-00026 1 the Project Substation, as measured in kilowatt-hours in accordance with Article 6. The Metered Output shall be calculated as the total electrical output of the Project, measured or calculated at the high side of the Project Substation, multiplied by the ratio of Contract Capacity Share to the total Installed Capacity of the Project (or by a comparable calculation applied to the Alternate Project). For example, if the Purchaser's Contract Capacity Share were 15 MW and the total Installed Capacity of the Project is 145.8 MW, Metered Output would be 10.288% of the total electrical output of the Project, measured or calculated at the high side of the Project Substation. Metered Output may be adjusted for an Alternate Project in the circumstances described in the definition of Alternate Project. "Moody's" shall mean Moody's Investor Services, Inc. and any successor thereto. "MW" shall mean a unit of power equal to one megawatt. "Non -Recourse Indebtedness" means any Debt, recourse for which is limited to specific assets of a Person and/or any of its Subsidiaries. "Person" shall mean an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority, limited liability company, or any other entity of whatever nature. "Prime Rate" shall mean the rate published in The Wall Street Journal as the "Prime Rate" from time to time (or, if more than one rate is published, the arithmetic mean of such rates), in either case determined as of the date the obligation to pay interest arises, but in no event more than the maximum rate permitted by Applicable Law. "Project" shall have the meaning set forth in the Recitals, and is more particularly described in Exhibit A attached hereto. "Project Owner" shall mean the legal owner of the Project (or of the Alternate Project), except that if the Project (or the Alternate Project) if financed pursuant to a capital lease, the Project Owner shall be the lessee under such capital lease. "Project Owner's Meters" shall have the meaning set forth in Section 6.1. V "Project PPA" shall mean the Power Purchase Agreement between PPM Energy, Inc., as purchaser, and the Project Owner, as seller. "Project Substation" the substation to be constructed as part of the Project, or comparable facilities of the Alternate Project. "Prudent Utility Practices" shall mean those practices, methods, and equipment, as changed from time to time, that: LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PONnd3-1418531.210058992-00026 _- -nelMeA: PoNnd3-7418531.20 0058892-00026 ' (i) when engaged in are commonly used in the United States of America in prudent electrical engineering and operations to operate wind generation electrical equipment and related electrical equipment lawfully and with safety, reliability, efficiency, and expedition; or (ii) in the exercise of reasonable judgment considering the facts known when engaged in could have been expected to achieve the desired result consistent with applicable law, safety, reliability, efficiency, and expedition. Prudent Utility Practices are not limited to optimum practice, method, selection of equipment, or act, but rather are a range of acceptable practices, methods, selections of equipment, or acts. "PTCs" shall mean production tax credits under section 45 of the Internal Revenue Code or under any state law as in effect on the Effective Date of this Agreement or any successor or other provision providing for a federal or state tax credit determined by reference to renewable electric energy produced from wind resources. "Purchaser" shall mean the City of [XXX], a municipal corporation created pursuant to the laws of the State of California. "Purchaser Lender" shall mean any and all individuals or entities or successors in interest thereof lending money or extending credit (including any financing lease) to Purchaser and to whom Purchaser intends to collaterally assign its interest in this Agreement. "Qualified Guarantor" shall mean a Person who meets the Credit Requirements. "Qualifying Junior Subordinated Debt" means, in the case of Seller's Guarantor, the subordinated debt of Seller's Guarantor or one of its Subsidiaries that has (i) an original maturity of 20 years or more; (ii) provisions permitting the obligor thereon to defer the payment of interest for a period or periods of 20 consecutive quarters or more; and (iii) all other characteristics (except interest rate) materially no less favorable to the relevant obligor than the 8 1/4% Junior Subordinated Deferrable Interest Debentures, Series C, maturing on June 30, 2036 and described in Prospectus Supplement dated June 6, 1996. "Receiving Party" shall have the meaning set forth in Section 14.10. 4 ,;: "Related Agreements" means the long-term power purchase agreements (including this Agreement) between Seller and the following cities, as purchasers, for the amount of installed wind energy electrical generation capacity indicated: Anaheim (6 MW), Azusa (k M_ W), , - Deleted:3 Colton (3 MW), Glendale (9 MW), and Pasadena (6 MWk_ All such agreements_ -are- _o_n___si_m__i_1_az_____ ---- Wl terms and conditions to those set forth in this Agreement. Deleted: amours(Deleted: , and Vernon p5 naw!. : "Seller's Guarantor" means PacifiCorp Holdings, Inc., or any successor guarantor or guarantors designated- by Seller. that has. a -long-term. credit -rating -(corporate -or.long-term. senior_. ��etea:roum3-la:as3l.w 0058892-00026 10 LANG -TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Porend3-1418531.21 0058892-00026 050 unsecured debt) of (1) `Baa2" or higher by Moody's; or (2) "BBB" or higher by S&P; provided, however, that Seller shall not be required to provide a guaranty from Seller's Guarantor or any other Person at any time when Seller satisfies the Credit Requirements. "Subsidiary" means any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by the Person in question. "Seller" shall mean PPM Energy, Inc., an Oregon corporation. "Seller Lender" shall mean any and all individuals or entities or successors in interest thereof lending money or extending credit (including any financing lease) to Seller for (i) construction, term, or permanent financing or refinancing of the Project (or the Alternate Project); (ii) working capital or other ordinary business requirements of the Project (including maintenance, repair, replacement, o r i mprovement o f the P roject o r of the A Itemate P reject); (iii) any development financing, bridge financing, credit support, credit enhancement, or interest rate protection in connection with the Project (of the Alternate Project); or (iv) the purchase of a 100 percent interest in the Project (or the Alternate Project) and the related rights from Seller. "S&P" shall mean Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.) and any successor thereto. "Subordinate Debt" shall mean any Debt that is subordinate in right of payment to the unsecured and unsubordinated Debt of the Person or its Subsidiaries and to the obligations of such Person arising under this Agreement. "System Emergency" shall mean a condition on transmission facilities (as declared by the Transmission Provider) used to deliver the Delivered Energy to the Purchaser at the Delivery Point, which condition is likely to result in imminent significant disruption of service to customers or is imminently likely to endanger life or property. "Taxes" means all ad valorem, property, occupation, utility, gross receipts, sales, use, excise, and other taxes, governmental charges, surcharges, licenses, permits, and assessments of every type and description, other than taxes imposed on the net income of the taxpayer "Technical Requirements" shall mean those codes, standards, and specifications for the Meters that the Parties shall mutually agree upon in writing, including, without limitation, bi- directional measurement capabilities. "Term" shall have the meaning set forth in Article 2. "Total Consolidated Capitalization" of a Person at any date means the sum of (a) all of The -Debt of-the-Person-and-its-Subsidiarfes other--tharr Subordinated -Debt) and -an Debt -- �leced`r°N °3-t4ss31.zo ( any --Debt 11 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PonInQ3-1418531 21 0058892-00026 051 consisting of an obligation to pay the deferred purchase price of capital stock of an Affiliate), (b) preferred stock of the Person or any of its Subsidiaries, a nd (c) common stock equity of the Person, all determined on a consolidated basis in accordance with GAAP as of such date; provided that Qualifying Junior Subordinated Debt, if any, shall be included in Total Consolidated Capitalization only if and to the extent that the inclusion thereof does not cause the aggregate amount of all preferred stock and Qualifying Junior Subordinated Debt to exceed 15% of Total Consolidated Capitalization. Notwithstanding anything in this Agreement to the contrary, for the purpose of calculating "Total Consolidated Capitalization," (a) any Non - Recourse Indebtedness and the specific assets securing such Non -Recourse Indebtedness (to the extent of such Non -Recourse Indebtedness), shall not be taken into account; and (b) the effects of the application of Statement of Financial Accounting Standards No. 133, "Accounting for Derivative Instruments and Hedging Activities", with respect to unsettled power purchase and power sale contracts of the Person shall be eliminated. "Total Consolidated Debt" of a Person at any date means all Debt of the Person and its Subsidiaries (other than any Qualifying Junior Subordinated Debt, any Subordinated Debt, and any Debt consisting of an obligation to pay the deferred purchase price of capital stock of an Affiliate), as determined on a consolidated basis in accordance with GAAP as of such date. Notwithstanding anything in this Agreement to the contrary, for the purpose of calculating "Total Consolidated Debt" (a) any N on -Recourse Indebtedness and the specific assets securing such Non -Recourse Indebtedness (to the extent of such Non -Recourse Indebtedness), shall not be taken into account; and (b) the effects of the application of Statement of Financial Accounting Standards No. 133, "Accounting for Derivative Instruments and Hedging Activities", with respect to unsettled power purchase and power sale contracts of the Person shall be eliminated. "Transmission Provider" shall mean the entity that operates the transmission system facilities interconnected with the Project (or with the Alternate Project) or any replacement regional transmission organization or other successor entity. "Transmission Services" shall mean transmission services, wheeling services, ancillary services, control area services, and operating reserves (including all transaction charges, line loss charges, imbalance charges and any other charges for any such services) on Purchaser's side of the Delivery Point. _ "Transmission System" shall mean the transmission facilities, now or hereafter in existence and operated by the Transmission Provider. "WECC" shall mean Western Electricity Coordinating Council or its successor. ARTICLE 2 TERM AND TERMINATION 2.1 Term. This Agreement shall be deemed effective as of the date on which it has i3een-signed-by-both--P-ariies-(tho-"-Effective-Date'-'-):-The---"Term"--of-this-Agreement shah---O-Zlales3l.zo 12 LONG-TERM POWER PURCHASE AGREEMENT BEIWEEN PPM ENERGY, INC. AND 1XXX1 Pordr,6 1418531.21 0058892-0002G 052 commence on the Effective Date and shall continue until 00:00 hours on the twentieth (2e) anniversary of the first Day of the first Contract Year, and thereafter only for as long as Seller or Purchaser requires to schedule and deliver an amount of energy needed to eliminate any positive or negative MW amounts recorded in the Balancing Account; provided, however, that this Agreement shall continue after such 20" anniversary on a Contract Year by Contract Year basis unless either Party elects to terminate this Agreement by giving notice to the other Party at least one (1) year before the end of the then -current Term (as it may have been extended previously). If a Party gives the other Party timely notice of termination, this Agreement shall continue only until the last day of such Term and thereafter only for as long as Seller or Purchaser requires to schedule and deliver an amount o f energy needed to a liminate any p ositive o r n egative M W amounts recorded in the Balancing Account. For example, if a Party gives notice of termination on or before the 19th anniversary of the first day of the first Contract Year, this Agreement shall continue only until the 20th anniversary of such date and thereafter only for as long as Seller or Purchaser requires to schedule and deliver an amount of energy needed to eliminate any positive or negative MW amounts recorded in the Balancing Account. The Tenn of this Agreement shall in any event continue no longer than 00:00 hours on the 25" anniversary of the first Day of the first Contract Year, and thereafter only for so long as Seller or Purchaser requires to schedule and deliver an amount of energy needed to eliminate any positive or negative MW amounts recorded in the Balancing Account. 2.2 Filing of Agreement with FERC. If required under Applicable Law, Seller shall file this Agreement with FERC for acceptance pursuant to the Federal Power Act. In making any such filing, Seller shall request that, to the fullest extent permitted under Applicable Law, FERC keep the terms and provisions of this Agreement confidential. Purchaser shall cooperate with Seller in filing this Agreement with FERC and requesting such confidential treatment. If FERC's approval of this Agreement is required, either Party may terminate this Agreement by thirty (30) Days prior written notice to the other Party if (a) such approval is conditioned on economically significant modification of this Agreement (unless the Party adversely affected by the modification agrees to it), or (b) FERC rejects this Agreement. 2.3 night to Terminate Prior to Commercial Operation. (a) The Related Agreements will require Seller to manage acquisition and delivery to the Delivery Point of a forward firm power product — a 0 megawatt hourly block of energy — Deleted: 15 that is non-standard in the current market. Accordingly, Seller shall have the tight upon potice-to Purchaser made within one hundred twenty (120) days after all of the Related AgreAents have been signed and delivered, to terminate this Agreement if Seller is unable to ensure itself, to its sole satisfaction, that it can manage and hedge such a non-standard product for the Term of this Agreement. Neither Party shall be liable for such termination. The Parties acknowledge that Seller may terminate this Agreement pursuant to this Section 2.3(a) even if Seller has commenced deliveries of Delivered Energy before the end of such 120 -day p eriod. If S eller terminates this Agreement pursuant to this Section 2.3(a) after deliveries have commenced, this Agreement shall continue only for as long as Seller or Purchaser requires to schedule and deliver d: FinaM3-14 ,as31 ao a ..... __-------- _-------- ___------------- _____----------- ___-------- _-------- 005889_.......__.....--..__....-....___.. 0058892-00026 13 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Pordr)d3-1418531.21 008892-00026 053 an amount of energy needed to eliminate any positive or negative MW amounts recorded in the Balancing Account. (b) If as of December 31, 2003 the Commercial Operation Date has not been achieved for the Project (or for the Alternate Project), either Party may terminate this Agreement by thirty (30) Days prior written notice to the other Party. Neither Party shall be liable for such termination. Seller shall provide Purchaser with periodic progress reports not less than quarterly. (c) If as of August 1, 2003, Related Agreements with respect to an aggregate of at least 10 aMW (approximately 30 MW of Installed Capacity) have not been signed and delivered to Seller, Seller may terminate this Agreement by giving thirty (30) Days prior written notice to the other Party. Neither Party shall be liable for such termination. 2A Designation of Alternate Protect. Seller is not required to designate an Alternate Project. However, in its sole discretion, Seller may designate an Alternate Project by giving prior written notice to Purchaser on or after October 2, 2006 (with such designation to be effective ninety (90) days after the date of Seller's notice). Thereafter, Seller may designate a different Alternate Project no more often than once every three years.(measured from the Effective Date) by giving at least ninety (90) Days' prior written notice to Purchaser. If Seller designates an Alternate Project, it shall supplement Exhibit A to describe the Alternate Project in a manner consistent with Exhibit A. Notwithstanding the foregoing, (a) Seller may not designate an Alternate Project that includes Installed Capacity located outside the state of California until after October 2, 2006, and (b) at any given time during the Term at least 70% of the Installed Capacity subject to this Agreement shall be located in California; provided, however, that if at any time during the Term applicable California law requires the Purchaser to buy some or all of its renewable energy or environmental attributes from sources located within California, Seller shall have 365 days from the date on which such law takes effect in which to reconfigure the Alternate Project so that 100% of the Installed Capacity subject to this Agreement is located in California. If Seller is unable to do so within such period despite commercially reasonable efforts, either Party may terminate this Agreement upon thirty (30) Day's prior written notice to the other. Neither Party shall be liable for such termination. Notwithstanding the foregoing, neither Party shall have a right to terminate this Agreement if any applicable California law declares after the Effective Date that wind energy generally or that wind energy designated as being subject to this Agreement is for any other reason no, longer a qualifying source of renewable energy and environmental attributes. M 2.5 Survival of Provisions. The obligations of Seller, Purchaser and Purchaser Guarantor to pay any moneys due hereunder, as well as Sections 4.2(e), 6.3, 6.4, Articles 9, 10, 13 and 14 of this Agreement shall survive the expiration of the Term or any termination of this Agreement. ARTICLE 3 PURCHASE AND SALE .--___...---__....-.__....___........... ,- ---------------- Deleted: PmUrmD-1418531.20 ... 3.1 Purchase and Sale of Delivered Energy. 0058892m02e 14 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 0058892L0026 054 3.1.1 Energy Delivery. In accordance with the terms and conditions hereof, commencing on the 1st Day of a calendar month determined as provided in this Section 3.1.1 and continuing throughout the Tenn, Seller shall sell and deliver at the Delivery Point, and Pdrehaser shall purchase and accept from Seller at the Delivery Point, all of the Delivered Energy. Following the Commercial Operation Date, Seller shall over the Term deliver an amount of Delivered Energy equal to the amount of Metered Output, in the manner set out in Section 4; provided, however, that (a) If (i) the Commercial Operation Date occurs between the 1" and� 'hDay of a .- --I oeleted: t5° calendar month and (ii) Related Agreements with respect to an aggregate of at least 10 aMW (approximately 30 MW of Installed Capacity) have been signed and delivered to Seller before the thDay of the calendar month, Seller shall, beginning on the l" Day of the next calendar -- -- Deleted: 15° Month, commence measuring Metered Output and delivering Delivered Energy at the Delivery Point. For example, if the preceding conditions are satisfied on or before August A� deliveries _---- Deleted: 15 would begin on September 1; (b) if (i) the Commercial Operation Date occurs between the, h and the last Day Deleted: 16 of a calendar month and (ii) Related Agreements with respect to an aggregate of at least 10 aMW (approximately 30 MW of Installed Capacity) have been signed and delivered to Seller before the last Day of the calendar month, Seller shall, beginning on the 1" Day of the second succeeding calendar month, commence measuring Metered Output and delivering Delivered Energy at the Delivery Point. For example, if the preceding conditions are satisfied on or after rortnatted Julv 26;" but on or before July 31, deliveries would begin on September 1. (c) Notwithstanding the forgoing, Seller shall not be required to deliver Delivered Energy at the Delivery Point before September 1, 2003. Delivered Energy that is delivered at the Delivery Point shall be deemed delivered to Purchaser for purposes of this Agreement. 3.1.2 Sources of Electric Enerev and Environmental Attributes. Purchaser expressly acknowledges that (a) Seller may obtain electric energy for delivery at the Delivery Point from market purchases or from any other source or sources or combination thereof as determined by Seller in its sole discretion, and (b) Seller is not required to transmit electric energy from the Project or Alternate Project to the Delivery Point; provided, however, that Seller shall be required to deliver, or otherwise provide to Purchaser, Environmental Attributesdirectly from the Project or an Alternate Project at the time of production, with such delivery to be accomplished by Seller's monthly delivery of the attestation attached as Exhibit C in accordance with Section 3.2.3. 3.2 Environmental Attributes. 3.2.1 Purchase and Sale of Environmental Attributes. 15 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 OO5a89200026 Deleted: Po l.B-1418531.20 0058892-00026 055 Subject to Section 14.16 (Force Majeure), for and in consideration of Purchaser's agreement to purchase from Seller the Delivered Energy on the terms and conditions set forth herein, Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, all right, title, and interest in and to all Environmental Attributes, if any, whether now existing or acquired by Seller or that hereafter come into existence or are acquired by Seller during the Term, for an undivided share of the output of the Project or the Alternate Project equal to the Metered Output commencing as of the l" Day of the calendar month determined under Section 3.1.1. Seller agrees to sell and make such Environmental Attributes available to Purchaser immediately to the fullest extent allowed by applicable law upon Seller's obtaining the Environmental Attributes. Seller shall not assign, transfer, convey, encumber, sell or otherwise dispose of all or any portion of such Environmental Attributes to any Person other than Purchaser: Seller makes no written or oral representation or warranty, either express or implied, regarding the current or future existence of any Environmental Attributes. 3.2.2 Reporting of Ownership of Environmental Attributes. During the Term, Seller shall not report to any person or entity that the Environmental Attributes granted hereunder to Purchaser belong to anyone other than Purchaser, and Purchaser may report under any such program that such Environmental Attributes purchased hereunder belong to it. 3.2.3 Further Assurances. Seller will document the production of Environmental Attributes under this Agreement by delivering with each invoice to Purchaser an attestation for Environmental Attributes produced by the Project or Alternate Project in the preceding calendar month. The form of attestation is set forth as Exhibit C. At Purchaser's request and expense, the Parties shall execute all such documents and instruments in order to effect transfer of the Environmental Attributes specified in this Agreement to Purchaser or its designees as Purchaser may reasonably request. In the event of the promulgation of a scheme involving Environmental Attributes administered by CAMD, upon notification by CAMD that any transfers contemplated by this Agreement will not be recorded, the Parties shall promptly cooperate in taking all reasonable actions necessary so that such transfer can be recorded. Each Party shall promptly give the other copies of all documents it submits to the CAMD to effectuate any transfers. 3.3 Contract Rate. During the period from and including the Commercial Operation Date through the remainder of the Term, Purchaser shall pay the Seller $53.50 per MWh of Delivered Energy (the "Contract Rate") . The Contract Rate shall be the total comeensation owed by Purchaser for such Delivered Energy and for the Environmental Attributes rdfated to the Metered Output. 3.4 No Change in Rates. No change may be made to the rates, terms or conditions of this Agreement at the request of any Party, or by FERC acting sua sponte on behalf of any Party, except as required by FERC in the public interest. To that end, each party waives any and all rights to seek changes to the rates, terms and conditions contained in this Agreement pursuant to sections 205 or 206 of the Federal Power Act or otherwise. ARTICLE 4 16 LANG -TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PoAnd3-1418531.21 0058892-00026 De1Med: PoNnd3-1418511 20 0058892-00026 ' 056 BASE SCHEDULE, BASE SCHEDULE ADJUSTMENTS 4.1 Base Schedule. During each month of the Term, commencing with the I' Day of the calendar month determined under Section 3.1.1, Seller shall schedule on a daily basis, and Purchaser shall take, at the Delivery Point, a Base Schedule of Delivered Energy, with adjustments as set forth in Section 4.2. Prior to the Section 4.2 adjustments, the Base Schedule shall be a flat delivery of the Average Annual Capacity in every hour. Delivered Energy shall be firm and may be considered "firm energy" by Purchaser in accordance with the WECC Minimum Operating Reliability Criteria, subject to Force Majeure. 4.2 Base Schedule Adjustments. In order that over the Term, the amount of Delivered Energy shall equal the amount of Metered Output, and subject to Section 14.16 (Force Majeure), the Base Schedule shall be subject to the following adjustments: (a) All differences between Delivered Energy and Metered Output in each hour, commencing with the 1st Day of the calendar month determined under Section 3.1.1 and continuing until 0000 hours on the last day of the Tenn shall be accumulated in a Balancing Account. Any hourly generation of Metered Output that is in excess of the amount of Delivered Energy provided in any hour shall be accumulated as a positive deviation in the Balancing Account, and any hourly generation of Metered Output that is less than the amount of Delivered Energy provided in any hour shall be accumulated as a negative deviation in the Balancing Account. Purchaser shall be provided by the tenth (10") day of each calendar month during the Term with a statement of the balance in the Balancing Account through the end of the immediately preceding calendar month. (b) In each of Contract Years two (2) through the end of the Term, if the accumulation in the Balancing Account as of 2400 hours on December 31 of the immediately preceding Contract Year is a positive number, the Base Schedule shall be adjusted upward in each hour by LY_] (__) MW in each hour, commencing with the hour beginning at 0000 hours on February 1, and continuing until Seller has provided an amount of additional Delivered Energy in such LY_] (__) MW increments most nearly equal to such positive balance in the Balancing Account. An example of this adjusted Base Schedule is shown in Exhibit D. (c) In each of Contract Years two (2) through the end of the Term, if the accumulation in the Balancing Account as of 2400 hours on December 31 of the itgmediately preceding Contract Year is a negative number, the Base Schedule shall be adjusted downward in each hour by LYJ (__) MW in each hour, commencing with the hour beginning at 0000 hours on February 1, and continuing until Seller has removed Base Schedule of Delivered Energy in such LYJ U MW increments in an amount most nearly equal to such negative balance in the Balancing Account. An example of this adjusted Base Schedule is shown in Exhibit D. (d) Any positive or negative amounts in the Balancing Account as of the earlier of the termination of this Agreement or 0000 hours on the last day of the Tenn shall be scheduled by -Deleted: Ponlnd3-wlesv.2o Sellerto-Purchaser-(if-the-amount-is- positive);- Purchaser -to -Seller (ifthe-amount-is0058892o6 17 LANG -TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 OD58992-00026 057 negative), and in each case, priced at the Contract Rate, commencing at 0001 hours of the second calendar month following such last day of the Term, as follows: (a) At the rate of LYJ (—) MW per hour, until the positive or negative amount in the Balancing Account is reduced to less than LYJ (__) MW, and (b) in the next schedule hour in an amount (to the nearest whole MW) necessary to bring the Balancing Account amount to zero (0). (e) Any reduction in the Base Schedule due to a Force Majeure Event or a System Emergency that prevents or reduce deliveries of Delivered Energy at the Delivery Point shall be accumulated and netted against other differences between Metered Output and Delivered Energy. 43 Scheduling Practices. In scheduling and accepting deliveries of Delivered Energy at the Delivery Point, the Parties shall adhere to scheduling procedures consistent with the CAISO's Scheduling Coordinator to Scheduling Coordinator (SC to SC) protocols for day - ahead scheduling. The authorized representatives of the Parties shall develop procedures as necessary to account for changes to CAISO protocols. ARTICLE 5 BILLING AND PAYMENTS 5.1 Billing a nd P ayment. Billing and payment for the Delivered Energy and all associated Environmental Attributes sold and purchased under this Agreement and any other amounts due and payable hereunder shall be as set forth in this Section 5.1. 5.1.1 Calculation of Delivered Energy; Invoices and Payment. For each calendar month during the Term, commencing with the first calendar month in which Delivered Energy is scheduled by Seller to Purchaser in accordance with the terms of this Agreement, Seller shall calculate the amount of Delivered Energy and associated Environmental Attributes delivered to Purchaser during such calendar month pursuant to this Agreement. Not later than the tenth (10th) Day of each calendar month (commencing with the calendar month next following the calendar month in which Delivered Energy is first provided by Seller to Purchaser in accordance with the terms of this Agreement), Seller shall deliver to Purchaser a proper invoice showing the amount of such Delivered Energy and associated Environmental Attributes during the immediately preceding calendar month and Seller's computation of the amount due Seller in respect thereof. Not later than the later to occur of the following (herein called the "Due Date - (i) the twentieth (20`s) Day of the calendar month immediately following the calendar month to which Seller's invoice relates (or the next succeeding Business Day, if such twentieth Day is not a Business Day); or (ii) the tenth (10ei) Day after receipt by Purchaser of Seller's monthly invoice (or the next succeeding Business Day, if such tenth Day is not a Business Day); 18 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Po01nd3-1418531.21 0058892-00026 Deleted: Pard d3-1418531.20 0058892-00026 Wl � Purchaser shall pay to Seller, by wire transfer of immediately available funds to an account specified in writing by Seller or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such monthly invoice. 5.1.1.1 Invoicing and Payment Following Purchaser's Election to Prepay After Downerade Event. Upon the occurrence of a Downgrade Event with respect to Purchaser and Purchaser's election to proceed under Section 5.3.2(1) hereof, Purchaser shall be required to pay for Delivered Energy and all associated Environmental Attributes monthly in advance as provided in this Section 5.1.1.1. Seller and Purchaser shall cooperate with one another in order to convert to such advance monthly billing and payment as quickly as possible (but in no event later than the first day of the calendar month next following the month in which the Purchaser Downgrade Event occurred). For each calendar month during the Term in which the provisions of this Section 5.1.1.1 applies, Seller shall calculate the amount of Delivered Energy and associated Environmental Attributes to be delivered to Purchaser during such calendar month pursuant to this Agreement. Not later than the fifteenth (15th) Day of each calendar month, Seller shall deliver to Purchaser a proper invoice showing the amount of Delivered Energy and associated Environmental Attributes to be delivered to Purchaser hereunder during the immediately succeeding calendar month and Seller's computation of the amount due Seller in respect thereof. Not later than the later to occur of the following (herein called the "Due Date"): (i) the last Day of the calendar month immediately preceding the calendar month to which Seller's i nvoice relates (or the next succeeding Business Day, if such twentieth Day is not a Business Day); or (ii) the tenth (10') Day after receipt by Purchaser of Seller's monthly invoice (or the next succeeding Business Day, if such tenth Day is not a Business Day); Purchaser shall pay to Seller, by wire transfer of immediately available funds to an account specified in writing by Seller or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such monthly invoice. 5.1.2 Disputed Invoices. In the event of a disputed invoice, Purchaser 3'hall pay the full amount of the disputed invoice when due, without prejudice. Purchaser may dispute invoice amounts as provided herein by giving Seller notice of the alleged errors along with Purchaser's p ayment o f the d isputed i nvoice. If S eller notifies P urchaser that Seller disagrees with the allegation of error in the invoice, the Parties shall meet, by telephone conference call or otherwise, within five (5) Business Days of Seller's response for the purpose of attempting to resolve the dispute. If the Parties are unable to resolve the dispute within thirty (30) Days after such initial meeting, either Party may immediately invoke the dispute resolution processes of Article 10. If the Seller is found to be in error, Seller will refund to Purchaser the amount that - Purchaser paidin excess of the amount that Purchaser actually owedplus interest on such excess 19 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Por0M3-1418531.21 0058892-0U026 -- peleted: PonIM3-1418531.20 00.58892-00026 ' 059 payment from the date the same was paid by the Purchaser to (but not including) the date the refund thereof is actually received by the Purchaser from the Seller, such interest to be at an annual rate equal to the Prime Rate in effect as of the date such payment was made by Purchaser plus 2 percent (but in no event shall such interest exceed the maximum interest rate permitted by Applicable Law). 5.13 Set -offs and Deductions. All payments hereunder shall be made without set-off or deduction; provided, however, if a Party suffers an Event of Default, the non -defaulting Party shall have the right to set off any amount due to the defaulting Party under this Agreement against any amount due t o the non -defaulting Party u nder this Agreement a s a result of such default. 5.1.4 Interest on Past Due Amounts. Any payment not made within the time limits specified in this Section 5.1 shall bear interest from the Due Date of such payment through (but not including) the date such payment is actually received by Seller or Purchaser, as the case may be. Such interest shall accrue at an annual rate equal to the Prime Rate then in effect plus 2 percent (but in no event shall such interest exceed the maximum interest rate permitted by Applicable Law). 5.1.5 Form and Transmittal of Invoices. Statements or invoices shall be sent to Purchaser by mail or facsimile to the address or facsimile number designated in Section 7.1. Purchaser may change the address of facsimile number b y providing written notice to Seller. The invoice shall be in a form reasonably acceptable to both Seller and Purchaser. 5.2 Title and Risk of Loss. Title to and risk of loss of Adjusted Metered Output and Environmental Attributes sold to Purchaser by Seller in accordance with this Agreement shall pass from Seller to and rest in Purchaser as follows: 5.2.1 Environmental Attributes. At time of production based on Metered Output. 5.2.2 Delivered Energy. When the Delivered Energy is delivered to Purchaser at the Delivery Point. 53 Credit Support. 4 53.1 Seller's Guarantor. (a) Delivery of Guaranty. Seller shall cause Seller's Guarantor to execute and d eliver t o P urchaser a guaranty i n favor of Seller, u nder t he t erns of which t he S eller's Guarantor unconditionally guarantees the full and prompt payment of Seller's obligations under this Agreement. Such guaranty from the Seller's Guarantor shall be in the form attached hereto as Exhibit B and shall be executed and be delivered to the Seller by the Seller's Guarantor no later than the date that definitive documentation is executed and delivered for the financing (both debt - and -equity)-of-the-construction -and-operation -of-the- Project- kor- the -Alternate--Project).- �leted:rouod3-14iaS31.zo 0058692-0007b 20 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 0058892-00026 060 Notwithstanding any other provision of this Agreement, the aggregate liability of Seller's Guarantor under any guaranty (or series of guaranties) shall not exceed $50,000 per MW of Installed Capacity subject to this Agreement (b) Downgrade Event. If at any time there shall occur a Downgrade Event with respect to the Seller's Guarantor (or the Seller, if Seller has previously met the Credit Requirements), then the Purchaser may, by notice in writing to the Seller, require the Seller to provide Additional S ecurity t o Purchaser. If Seller fails to provide such Additional S ecurity within fifteen (15) Business Days of the receipt of such notice from the Purchaser, then an Event of Default shall be deemed to have occurred pursuant to Section 8.1(e) hereof. 5.3.2 Purchaser's Credit Support. Purchaser shall notify Seller in writing of the occurrence of any event which, with notice or the passage of time or both, would constitute a Downgrade Event with respect to the Purchaser, which notice shall be given by Purchaser within 24 hours of the occurrence of such event. If at any time there shall occur a Downgrade Event with respect to Purchaser, then t he S eller may, b y n otice i n writing to the Seller, require the Purchaser to either: (1) provide Additional Security to Seller; or (2) pay for Delivered Energy and all associate Environmental Attributes in advance of the delivery thereof to the Purchaser as provided in Section 5.1.1.1 above. Within five (5) Days of the receipt of such notice from Seller, Purchaser shall advise Seller in writing as to whether it elects to proceed under (1) or (2) of this Section 5.3.2. If Purchaser elects to proceed under (1) of this Section 5.3.2 and fails to provide such Additional Security within fifteen (15) Business Days of the receipt of such notice from the Seller, then an E vent of Default s hall be d eemed to have occurred p ursuant t o S ection 8.1(e) hereof. 5.3.3 Cash As Additional Security. If such Additional Security consists of cash, the escrow agreement with the applicable Custodian (to which the Seller, the Seller's Guarantor, if any, and the Purchaser shall be parties) shall provide that all interest and investment proceeds with respect to such cash shall accrue for the benefit of Party posting the Additional S ecurity and s hall b e p aid t o t hat P arty monthly. T he fees a nd expenses o f s uch Custodian shall be paid by the Party posting the Additional Security. At the other Party's request, the Party posting Additional Security shall grant to the other Party a valid, first priority security interest i n the posting P arty's interest i n the escrow a greement contemplated by t his provision and shall take such other steps as may be reasonably required to protect the cash against the bankruptcy of the posting Party. M V,. 5.4 Allocation of Taxes. Seller shall pay or cause to be paid all Taxes on or with respect to the Project (or the Alternate Project) or on or with respect to the delivery and sale of Delivered Energy and/or Environmental Attributes to the Purchaser that are imposed before the delivery of Delivered Energy at the Delivery Point and prior to transfer to Purchaser of the Environmental Attributes. Purchaser shall pay or cause to be paid all Taxes, if any, on or with respect to the delivery and sale of Delivered Energy and/or Environmental Attributes to the Purchaser that are imposed after the delivery of the Delivered Energy to the Purchaser at the pelivery Point and on or after transfer to Purchaser of the Environmental Attributes. If a Party is . ------____---------___----..___-_--.--__----__-----___-_,-_------------------- 21 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PonlrA3-1418531.21 0058892-00026 Deleted: Pmdnd3-14853120 00.58892-00026 061 required to remit or pay Taxes that are the other Party's responsibility hereunder, such Party shall promptly reimburse the other for such Taxes. Both Parties shall use reasonable efforts to administer this Agreement and implement the provisions in accordance with their ihtent to minimize Taxes. In the event any of the sales of Delivered Energy or Environmental Attributes hereunder are exempt from or not subject to any particular Tax(es), the Purchaser shall provide Seller with all necessary documentation required to evidence such exemption or exclusion within the time period required by Applicable Law. In the event Purchaser does not provide such documentation, then Purchaser shall indemnify, defend, and hold Seller harmless from any liability with respect to Tax(es) from which Purchaser claims it is exempt or excluded. 5.5 Financial Statements. Each Party shall provide the other Party with copies of its most recent financial statements on or before January 31 of each year during the Term. A Party may deliver unaudited financials in satisfaction of this requirement, as long as audited financials are produced in the ordinary course and promptly delivered as soon as they are available. In addition, each Party shall promptly provide to the other Party financial statements and other financial information reasonably requested by such other Party for the purposes of this Agreement and the Seller's guaranty. If a Party does not provide such information within ten (10) days of a request, the requesting Party may send a written notice demanding the delivery of such information in accordance with this Section. If the requested information is not delivered within the thirty (30) day period, or if the Party to which the notice is directed is not otherwise able to show that a Downgrade Event has not occurred, the Party demanding such information shall be entitled to assume that a Downgrade Event has occurred. All such financial information will be treated as confidential information subject to Section 14.10 of this Agreement. ARTICLE 6 MEASUREMENT AND METERING 6.1 Metering Equipment. Pursuant to the Project PPA, Seller shall cause the Project Owner or the Transmission Provider to provide, install, own, operate, and maintain all metering and data processing equipment needed for the registration, recording, and transmission of information regarding the Metered Output generated from the wind turbines at the Project (or the Alternate Project). Project Owner's Meters and data processing equipment shall meet or exceed the Technical Requirements. Project Owner (or the Transmission Provider) may elect to install Project Owner's Meters on the low side of the transformer immediately prior to the. Delivery Point; provided, however, that the Project Owner's Meters shall be adjusted ta;account accurately for s ubstation transformer 1 osses to P urchaser's reasonable satisfaction (so that the amount paid for Metered Output will not include such losses). 6.2 Measurements. Readings of Project Owner's Meters shall be conclusive as to the amount of Metered Output delivered under this Agreement; provided, however, that if any of Project Owner's Meters is out of service or is determined, pursuant to Section 6.2 hereof, to be registering inaccurately, measurement of Metered Output delivered hereunder shall be determined in the as follows and in the order indicated: 22 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX) Ponld3-1418531.21 0058892-00026 Deleted: Pord.0-1418531.20 0058892-00026 ' 062 (a) First, if any other meters meeting applicable Technical Requirements have been installed and are operational, measurement of Metered Output delivered hereunder shall be by such meters; and (b) Second, measurement of Metered Output shall be made using a mathematical calculation agreed upon by the Parties to adjust the output thereof to account for electrical losses in the gathering system and wind turbine transformers and substation transformers up to the point at which project output is metered. If, for purposes of this Section 6.2, the Parties cannot agree on the actual period during which Project Owner's Meters were registering inaccurately, the period to be used for purposes of this Section 6.2 shall be one-half of the period from the date of the last previous test of the Project Owner's Meters through the date of the test that found Project Owner's Meters to be inaccurate, but in no event more than one hundred and eighty (180) Days from the date of the last previous test of such the Project Owner's Meters. 6.3 Testine and Correction. 6.3.1 ReuuiredTestine. S eller shall use commercially reasonable efforts to cause the Project Owner or the Transmission Provider to test and verify the accuracy of Project Owner's Meters at least annually and at Project Owner's expense. Such annual testing and verification shall be performed within thirty (30) Days of the beginning of each Contract Year by a third party selected by Project Owner or Transmission Provider and approved in writing by Purchaser. In addition, at Project Owner's or the Transmission Provider's option, the accuracy of Project Owner's Meters may be tested and verified at Project Owner's expense at intervals between each annual test. Seller shall give to Purchaser at I east ten (10) Days prior written notice of the date upon which any such test is to occur. Seller shall use commercially reasonable efforts to cause the Project Owner or the Transmission Provider to prepare a written report setting forth the results of each such test and to provide Purchaser with copies of such written report not later than thirty (30) Days after completion of the test. 63.2 Standard of Meter Accuracy Resolution of Disputes as to Accuracy. Each Meter shall be accurate within a one-half percent (0.5%) variance. The following steps shall be taken to resolve disputes regarding the accuracy of the Owner's Meters: (a) If either Party disputes a Meter's accuracy or condition, it shag 5b advise the other Party in writing. (b) If the Parties are unable to resolve reach consensus as to the Meter's accuracy or condition through reasonable negotiations, then either Party may submit such dispute to an unaffiliated third -party engineering company mutually acceptable to the Parties to test the Meter. Seller shall arrange for such testing with the Project Owner or the Transmission Provider. 23 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PordM3-1418531.21 0058892-00026 Deleted: Po,dxd3-1418531.20 0058892-00(Y.6 ' 063 (c) Should the Meter be found to register within the permitted one-half percent (0.5%) variance, the disputing Party shall bear the cost of inspection; otherwise, the cost shall be home by the Seller. (d) Any repair or replacement shall be made at the expense of the Seller as soon as practicable, based on the third -party engineer's report. (f) Following testing, corrections shall be made as follows: (1) If any Meter is found to be accurate or to be in error by not more than the permitted one-half percent (0.5%) variance, previous recordings of such Meter shall be considered accurate in computing Metered Output hereunder, and such Meter shall be promptly adjusted to record correctly. (2) If any Meter is found to be in error by an amount exceeding the one-half percent (0.5%) variance, then such Meter shall be promptly adjusted to record correctly, any previous recordings by such Meter shall be adjusted in accordance with Section 6.2 hereof, and the hourly amounts of Metered Output accumulated in the Balancing Account shall be modified by the amount of such adjustment. 6.4 Maintenance of Records. Seller shall keep complete and accurate records, and shall maintain such data as may be necessary for the purpose of ascertaining the accuracy of all relevant data, estimates, or statements of charges submitted hereunder for a period of two (2) years from the delivery date of the invoice associated with such data, estimates or statements of charges. 6.5 Right To Audit. 6.5.1 Audit Riehts. Purchaser shall have,the right, upon reasonable notice to Seller and during Seller's regular business hours and without unduly interfering with the conduct of Seller's business, to access all of Seller's records pertaining to invoices under this Agreement to audit the reports, data, calculations and invoices that Seller must provide to Purchaser under this Agreement. Purchaser shall bear Purchaser's costs of performing such audit; provided, however, that Seller agrees to cooperate with such audit and shall not charge Purchaser for any reasonable costs (including without limitation the cost of photocopies) that Seller mayiticur as a result of such audit. Purchaser shall have eighteen (18) months from the date on which a billing statement is received to audit and to challenge that billing statement. 6.5.2 Refunds of Overpayments and Underpayments. Should the audit discover a billing error or errors that resulted in an overpayment by Purchaser, the Seller shall refund to the Purchaser the amount of the overpayment plus interest thereon from the date such overpayment was made by Purchaser to (but not including) the date the Purchaser actually receives the refund thereof from t he S eller, s uch interest to b e a t an annual rate equal t o t he 'Prime -Rate -in- effect- on -the - date- such -overpayment-was-made-b Purchaser- -plus percent - 24 -"-- Delered`P°N`m3-Idlss3l.zo Y- P P 0058892-00026 24 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Portln B-1418531.21 0058892-00026 064 (2%), but not to exceed the maximum interest rate permitted by Applicable Law. Should the audit discover a billing error or errors that resulted in an underpayment by Purchaser, the Purchaser shall pay to the Seller the amount of the underpayment plus interest thereon from the Due Date thereof to (but not including) the date the Seller actually receives the payment thereof from the Purchaser, such interest to be at an annual rate equal to the Prime Rate in effect on the date such underpayment was made by Purchaser plus two percent (2%), but not to exceed the maximum interest rate permitted by Applicable Law. ARTICLE 7 NOTICES 7.1 General. Any notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth below or at such other address or addresses as a Party may designate for itself (and for its Default Notice Parties) from time to time by notice hereunder: To Seller: Manager, Middle Office PPM Energy, Inc. 650 NE Holladay, Suite 700 Portland, OR 97232 Phone: (503) 813-5763 Fax: (503)813-5722 To Purchaser: [XXX] Phone: Fax: Each notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, five (5) Business Days following the date of the postmark on the envelop in which such notice was deposited in the United States mail; (b) if sent b y a regularly s cheduled overnight delivery c arrier w ith delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier, (c) if sent by fax and if concurrently with the transmittal of such fax the sending Party contacts the receiving Party at the phone number set forth above to indicate such fax has been sent (which indication by phone may be done by leaving a voicemail 25 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 0058892-0 W $ D¢leted: poril,d3-1411531.20 00588924r7026 065 for the receiving Party at such phone number), at the time such fax is transmitted by the sending Party as shown by the fax transmittal confirmation of the sending Party; or (d) if delivered in person, upon receipt by the receiving Party. ARTICLE 8 DEFAULTS AND REMEDIES 8.1 Events of Default. Each of the following shall constitute an "Event of Default" hereunder: (a) a failure by a Party to pay any amount due hereunder (including without limitation in the case of the Purchaser, the failure to pay when due any advance monthly payment that may become owing under Section 5.1.1.1 hereof, or in the case of Seller, failure to pay an amount due pursuant to Section 8.7 resulting from a failure to deliver energy or Environmental Attributes as required by this Agreement), if such failure is not cured within ten (10) Days of the date on which the nondefaulting Party sends notice of the default to the Default Notice Parties by payment of the amount due plus interest at an annual rate equal to the Prime Rate then in effect plus two hundred basis points from the date due until paid; (b) any other material default (other than a default that, with notice and the passage of time or both, would constitute an Event of Default under Section 8.1(c), (d) or (e) hereof) if such default has not been cured by the defaulting Party within sixty (60) Days after the date of receipt by the Default Notice Parties of written notice from the nondefaulting Party setting forth, in reasonable detail, the nature of such material default; provided that in the case of a material default that is not reasonably c apable of being cured within the 60 -Day cure period, the defaulting Party shall have additional time to cure the default if it commences to cure the default within such 60 -Day cure period, it diligently pursues such cure, and such default is capable of being cured by the defaulting Party and is in fact cured within no more than 180 Days after receiving such notice; provided further that: (i) the defaulting Party shall not be relieved of its duty to pay amounts due under this Agreement during the cure period, whether the amount due arises from the default or otherwise; and Y (ii) if the nondefaulting Party s uffers damages under this Agreement because of the other Party's material default, the nondefaulting Party shall be entitled to recover damages under this Agreement regardless of whether the other Party thereafter cures the default; (c) the commencement of involuntary bankruptcy, insolvency, reorganization, arrangement, composition, readjustment, l iquidation, dissolution, o r s imilar p roceeding_ _ Deleted: Pomna3-1418531.20 -(whetherunderanypresemvrfuture statute,-taw,-orregulation)withrespecrtoanyParty, 0058892-00026 26 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponldd34C 1853 L 21 OD58892-00026 lime including the involuntary appointment of any trustee, receiver, custodian, or the like of such entity or all or any substantial part of its assets, and such proceeding has not been terminated or dismissed with ninety (90) Days after the commencement thereof; or the commencement of voluntary bankruptcy, insolvency, reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar proceeding (whether under any present or future statute, law, or regulation) with respect to any Party, including the appointment, with the consent or acquiescence of the affected Party, of any trustee, receiver, custodian, or the like of such entity or all or any substantial part of its assets; or (d) the occurrence of a Downgrade Event with respect to the Seller or Seller's Guarantor and the failure of Seller or Seller's Guarantor to provide to the Purchaser Additional S ecurity w ithin t he time required and i n the stated amount p rovided for i n Section 5.3.1(b); or (e) the occurrence of a Downgrade Event with respect to Purchaser under circumstances where the Purchaser thereupon elects to proceed under Section 5.3.2(1) hereof and the failure of Purchaser either (i) to provide to the Seller Additional Security within the time required and in the stated amount provided for in Section 5.3.1(b), or (ii) to cause this Agreement to be assigned to and assumed by one or more Persons that is a party to a Related Agreement and that meets the Credit Requirements within fifteen (15) Days after the occurrence of a Downgrade Event. As used herein, the term "Default Notice Parties" means: (i) in the case of a default by the Seller, the Seller and the Seller Lender (if any); and (ii) in the case of a default by the Purchaser, the Purchaser and the Purchaser Lender (if any). Notwithstanding anything expressed or implied herein to the contrary: (i) upon the occurrence of a default by Seller, Purchaser shall give any notice of such default to each of the Default Notice Parties; provided that Purchaser shall only be required to give such notice to Seller Lender if, prior to the occurrence of such default, Seller or Seller Lender has provided to the Purchaser written notice of the address, phone number and fax number to which notices to the Seller Lender are to be sent; (ii) upon the occurrence of a default by Purchaser, Seller shall give any notice of such default to each of the Default Notice Parties; provided that Seller shplPonly be required to give such notice to Purchaser Lender if, prior to the occurrence of such default, Purchaser or Purchaser Lender has provided to the Seller written notice of the address, phone number and fax number to which notices to the Purchaser Lender are to be sent. 8.2 Riehts Upon Event of Default. Upon the occurrence of an Event of Default by a Party and after any cure period applicable to such Event of Default as provided in Section 8.1, the nondefaulting Party shall have the following rights: 27 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Povind3-1418531.21 9058892-00026 Deleted: Por11nd3-1418531.20 0058892-00026 ' 067 (a) to terminate this Agreement by written notice to the other Party; (b) to suspend performance of its obligations and duties hereunddr upon written notice to the defaulting Party; and (c) to pursue any other remedy given under this Agreement or now or hereafter existing at law or in equity or otherwise, including but not limited to recovery of all damages caused by the breach of this Agreement; provided, however, that a dispute as to whether an Event of Default has occurred shall be resolved pursuant to the Dispute Resolution provisions of this Agreement. 83 Cure Rights of Seller Lender and Purchaser Lender. Notwithstanding anything expressed or implied herein to the contrary: (a) in the case of an Event of Default by Seller, Purchaser shall provide Seller Lender (if any) with: (1) notice of such Event of Default; (2) if such Event of Default is a payment default arising under Section 8.1(a), ten (10) Days from the date notice of such default is delivered to Seller Lender to cure such Event of Default; and (3) if such Event of Default arises under Section 8.1(b) or (c), ninety (90) Days from the date notice of such default is delivered to Seller Lender to cure Event of Default, or in the case of an Event of Default under Section 8.1(b) or (c) that is not reasonably capable of being cured within such ninety (90) -Day cure period, the Seller Lender shall have additional time to cure such Event of Default if it commences io cure the Event of Default within such ninety (90) -Day cure period, it diligently pursues such cure, and such default is capable of being cured by Seller Lender and is in fact cured within no more than one hundred eighty (180) Days after receiving such notice; and (4) if such Event of Default arises under Section 8.1(e), ten (10) Days from the date notice of s uch default is delivered to Seller L ender to c ure such Event of Default a G: - (b) in the case of an Event of Default by Purchaser, Seller shall provide Purchaser Lender (if any) with: (1) notice of such Event of Default; (2) if such Event of Default is a payment default arising under Section 8.1(a), ten (10) Days from the date notice of such default is delivered to Purchaser Lendertocure- such -Event ofDefault;and -------- --- _.-------- -.-- Deleted: Ponlnd3-14]ss3l.zo 0058892-00026 28 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 0058892-00026 =611 (3) if such E vent o f D efault a rises under Section 8.1(b), ninety (90) Days from the date notice of such default is delivered to Purchaser Lender to cure Event of Default, or in the case of an Event of Default under Section 8.1(b) that is not reasonably capable of being cured within such ninety (90) -Day cure period, the Purchaser Lender shall have additional time to cure such Event of Default if it commences to cure the Event of Default within such ninety (90) -Day cure period, it diligently pursues such cure, and such default is capable of being cured by Purchaser Lender and is in fact cured within no more than one hundred eighty (180) Days after receiving such notice; and (4) if such Event of Default arises under Section 8.1(d), ten (10) Days from the date notice of such default is delivered to Purchaser Lender to cure such Event of Default Notwithstanding anything expressed or implied herein to the contrary: (i) Seller Lender shall only be entitled to exercise its rights under this Section 8.3 if, prior to the occurrence of default hereunder with respect to which Seller Lender seeks to exercise such rights, Seller or Seller Lender has provided to the Purchaser written notice of the address, phone number and fax number to which notices to the Seller Lender are to be sent; and (ii) Purchaser Lender shall only be entitled to exercise its rights under this Section 8.3 if, prior to the occurrence of a default hereunder with respect to which Purchaser Lender seeks to exercise such rights, Purchaser or Purchaser Lender has provided to the Seller written notice of the address, phone number and fax number to which notices to the Purchaser Lender are to be sent. 8.4 Default under Related Agreement. In entering into this Agreement, Seller is relying on the material understanding that all Related Agreements (including but not limited to this Agreement) shall remain in full force and effect for their respective terms. If any Related Agreement is terminated by Seller because of a default by the purchaser under that Related Agreement (including but not limited to a downgrade event affecting that purchaser, as defined in such agreement), Seller shall have the right, in its sole discretion, to terminate all other Related Agreements (including this Agreement) by giving thirty (30) Days prior notice. to Purchaser and the purchasers under the remaining Related Agreements. This right is -iris ition to and not in lieu of any rights or remedies that Seller may have against the defaulting purchaser under the Related Agreement. If Seller terminates this Agreement pursuant to this Section 8.4, neither Party shall have any liability to the other under this Agreement after the date of termination, except for the final invoicing and payment of amounts due under this Agreement with respect to performance rendered in periods before the termination date and final reconciliation of Base Schedule adjustments under Section 4.2. 8.5 Net Out of Payables Upon Termination. Without limiting its remedies under celeeed: PONM3-1a1ss31.2o )fiis Agreainent; upon taiinmaflono-this Agreement fdr defaiili], the Noii=Defaultiiig Parfy may ---- oossagt�oo2e 29 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponind3-1418531 21 0058842-00026 no W elect to aggregate all payments due and amounts otherwise owing under this Agreement into a single amount by: netting out (a) all payments and other amounts that are due to the Defaulting Party under this Agreement, plus, at the option of the Non -Defaulting Party, any cash or other form of security then available to the Non -Defaulting Party pursuant to this Agreement, against (b) all payments and other amounts that are due to the Non -Defaulting Party under this Agreement, so that all such amounts shall be netted out to a single liquidated amount (the "Termination Payment') payable by one Party to the other within thirty (30) days of the date on which the Non -Defaulting Party notifies the Defaulting Party of the amount of the Termination Payment. The Termination Payment shall be payable to or from the Non -Defaulting Party, as appropriate. This provision is intended to net only amounts due under the terms of this Agreement, and the Non -Defaulting Party shall under no circumstances be required to account for or otherwise credit or pay the Defaulting Party for economic benefits accruing to the Non - Defaulting Party as a result of the Defaulting Party's default. 8.6 Closeout Setoffs. After calculation of the Termination Payment in accordance with Article 10.6, if the Defaulting Party would be owed the Termination Payment, the Non - Defaulting Party shall be entitled, at its option and in its discretion, to set off against such Termination Payment any amounts due and owing by the Defaulting Party to the Non -Defaulting Party under any other agreements, instruments or undertakings between the Defaulting Party and the Non -Defaulting Party. 8.7 Damases for Failure to Deliver Energy or Environmental Attributes. If Seller fails to deliver energy or Environmental Attributes as required by this Agreement, Seller shall pay Purchaser cover damages equal to Purchaser's cost of replacing the energy. or Environmental Attributes that were not delivered by Seller as required by this Agreement. Purchaser shall use commercially reasonable efforts to mitigate such damages. Purchaser shall not be obligated to terminate this Agreement in order to receive payment for such damages. Such compensatory cover damages shall be a payment obligation of Seller and shall be covered by the guaranty delivered by Seller's Guarantor (subject to the terms and conditions of that Guaranty). If Seller fails to deliver energy or Environmental Attributes as required by this Agreement, Purchaser shall send Seller an invoice for amounts due under this Section 8.7. Such invoice shall set forth Purchaser's calculation of cover damages in reasonable detail. Seller shall pay Purchaser amounts due under Purchaser's invoice within ten (10) days of receipt. If Seller disputes the invoice, in good faith, Seller shall nonetheless pay any undisputed amount no later than ten (10) days after receipt of Purchaser's invoice. Any amount disputed by Set= in good faith shall be immediately submitted to dispute resolution tinder Article 10, and Seller shall pay any amount determined to be owed Purchaser (including interest at the Prime Rate plus 200 basis points) within five (5) days after the dispute is resolved under Article 10. ARTICLE 9 30 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Pordnd3-1418531 21 0058892-00026 Deleted: PoAnd3-I4l8531.20 0058892-0OIYL6 070 LIMITATION OF LIABILITY EXCEPT TO THE EXTENT INCLUDED IN SPECIFIC CHARGES EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY HEREUNDER SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF A PARTY'S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT, WHETHER BASED ON OR CLAIMED UNDER CONTRACT, TORT (INCLUDING SUCH PARTY'S OWN NEGLIGENCE) OR ANY OTHER THEORY AT LAW OR IN EQUITY. ARTICLE 10 DISPUTE RESOLUTION If the Parties are unable to resolve a dispute with respect to this Agreement, either Party may send a notice to the other requesting a meeting at which senior officers or officials of the Parties will attempt to resolve the dispute. If the Parties are unable to resolve the dispute within twenty (20) Days after the meeting notice is received by the Party to whom it is directed, or such longer period as the Parties may agree, then either Party may initiate binding arbitration as set forth herein. Such arbitration shall be submitted to a single disinterested arbitrator, mutually agreed to by the Parties, with significant experience in the electric power industry. If the Parties cannot mutually agree on the selection of the arbitrator within thirty (30) Days of the demand for arbitration, the arbitrator shall be selected in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association as they pertain to the selection of arbitrators. Except as otherwise provided in this Article 10, the arbitration shall be conducted pursuant to the Commercial Dispute Resolution Procedures of the American Arbitration Association (including the Expedited Procedures thereof with respect to claims and counterclaims that do not exceed $75,000). The arbitrator shall be instructed to use all reasonable efforts to begin the hearing on the dispute within sixty (60) Days of being selected by the Parties or the American Arbitration Association and to render a written decision setting forth its findings and conclusions within thirty (30) Days of the date on which the arbitration proceedings are concluded; provided, however, that if the determination of a dispute under this Agreement depends upon theresolutionof a dispute under the Project PPA, the arbitrator shall defer a written decision on the dispute under t his Agreement until after the resolution of the dispute under the Project PPA. If any portion of a dispute relates to billing, payment or money damages, the Parties shall, in advance of the hearing, exchange and submit to the arbitrator their last best offer with respect to the disputed billing, payment or money damages. The artitratorr's power shall be limited to choosing only one or the other of the offers submitted. The arbitrator's decision concerning the item or items in dispute shall be final and binding on the Parties and shall be enforceable in any court of competent jurisdiction; provided, however, that either Party shall have the Tight to appeal manifest errors of law (but not findings of fact) to a court of competent jurisdiction. Any such appeal must be filed, if at all, within ten (10) days of the date on which the arbitrator's decision is rendered. Each Party shall bear its own attorneys' fees and costs of pursuing the arbitration; the Parties shall share equally all fees and costs of the American Arbitration Association, the arbitrator and similar expenses. 31 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PMW3-1418531.21 0058892-00026 Deleted: Porand3-1418531.20 0058892-00026 071 ARTICLE 11 11.1 Restriction on Assignments. Except as otherwise provided below, neither Party may assign this Agreement without the other Party's prior written consent, which such Party shall not unreasonably withhold. The nonassigning Party may withhold its consent if the other Party proposes to assign its rights or delegate its duties under this Agreement to any party that has a credit rating from S&P of "BBB" or less or has a credit rating from Moody's of `Baa2" or less. Any assignment in violation of this provision shall be void. Notwithstanding the foregoing or anything expressed or implied herein to the contrary: (a) Purchaser may, without the prior written consent of Seller, assign this Agreement: (1) to a purchaser of all or substantially of the assets of the Purchaser; (2) to an Affiliate of the Purchaser; or (3) in connection with a merger of the Purchaser with another Person or any other transaction resulting in a change of control of the Purchaser; provided that such purchaser, such Affiliate or the Person surviving such merger, as applicable, agrees in writing to be bound by the terms of this Agreement; and (b) Seller may, without the prior written consent of Purchaser, assign this Agreement: (1) to a purchaser of all or substantially of the assets of the Seller; (2) to an Affiliate of the Seller; or (3) in connection with a merger of the Seller with another Person or any other transaction resulting in a change of control of the Seller, provided that such purchaser, such Affiliate or the Person surviving such mgrger,'as applicable, agrees in writing to be bound by the terms of this Agreement; and v (c) Purchaser may, without the consent of or notice to the Seller, sell, transfer, assign, convey, encumber or otherwise dispose of all or any portion of the Environmental Attributes. 11.2 Assumption by Assignee: No Release from Liabilities. Any permitted assignee or transferee of a Party's interest in this Agreement shall assume all existing and future ,obligations_ of such Party to be_performed under this Agreement._ Unless otherw-ise agreed -to -by-__---- Deleted: Pordnd3-1418531.20 0058892-00026 32 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Portlnd3-1418531.21 0058892-00026 072 the Parties, upon any permitted assignment. of this Agreement, the assigning Party shall nevertheless continue to be and remain liable for the performance of its obligations hereunder in accordance with the terms hereof. 11.3 Binding Effect. This Agreement shall bind and inure to the benefit of the Parties and their permitted successors and assigns. ARTICLE 12 FINANCING LIENS 12.1 Assignment as Security to Seller Lender. Seller, without approval of Purchaser, may grant a security interest in its interest under this Agreement to Seller Lender as security for any loan made for the purpose of financing or refinancing the construction and/or operation of the Project (or the A Iternate P reject) and the Interconnection F acilities. N otwithstanding the foregoing or anything else expressed or implied herein to the contrary, Seller shall not assign, transfer, convey, encumber, sell or otherwise dispose of all or any portion of the Environmental Attributes to Seller Lender. Promptly after granting such security interest, Seller shall notify Purchaser in writing of the name, address, and telephone and facsimile numbers of each Seller Lender to which Seller's interest under this Agreement has been encumbered. Such notice shall include the names of the account managers or other representatives of Seller Lender to whom all written and telephonic communications may be addressed. After giving Purchaser such initial notice, Seller shall promptly give Purchaser notice of any change in the information provided in the initial notice or any revised notice. If Seller encumbers its interest under this Agreement as permitted by this Section 12. 1, the following provisions shall apply: (a) Seller Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under this Agreement to prevent or cure a default by Seller, and such act performed by Seller Lender shall be as effective to prevent or cure a default as if done by Seller. (b) Upon t he receipt o f a w ritten request f rom S eller o r any S eller Lender, Purchaser shall, and shall use good faith efforts to cause Purchaser Lender to, execute or arrange for the delivery of such certificates, consents, opinions, and other documents as may be reasonably necessary for Seller to consummate any financing or refindAing and will enter into reasonable agreements with such Seller Lender that provide that Purchaser and Purchaser Lender recognize the rights of such Seller Lender upon foreclosure of Seller Lender's security interest and such other provisions as may be reasonably requested by any such Seller Lender, provided, however, that any such agreement shall not constitute a modification hereof unless Purchaser otherwise agrees in its sole discretion. (c) Purchaser acknowledges that upon an event of default by Seller under any - ---- Deleted: PorOrA3-1419531.20 financing documents, any Seller Lender may (but shall not -be -obligated to) assume, or 005889200026 33 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND LXXX] PmInd3-1418531.21 0058892-00026 073 cause its designee to assume, all of the interests, rights, and obligations of Seller thereafter arising under this Agreement. Notwithstanding any suchassumption, Seller shall not be released and discharged from and shall remain liable for any 'and all obligations to Purchaser arising or accruing hereunder. (d) Purchaser agrees that no Seller Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of Seller or shall have any obligation or liability to Purchaser with respect to this Agreement except to the extent any Seller Lender has assumed the obligations of Seller hereunder p ursuant t o this S ection 12.1; p rovided t hat P urchaser s hall n evertheless be entitled to exercise all of its rights hereunder in the event that Seller or Seller Lender fails to perforin Seller's obligations hereunder. 12.2 Assignment as Security to Purchaser Lender. Purchaser, without approval of Seller, may grant a security interest in its interest under this Agreement to Purchaser Lender as security for any loan undertaken for general financing purposes. Promptly after granting such security interest, Purchaser shall notify Seller in writing of the name, address, and telephone and facsimile numbers of each Purchaser Lender to which Purchaser's interest under this Agreement has been encumbered. Such notice shall include the names of the account managers or other representatives of Purchaser Lender to whom all written and telephonic communications may be addressed. After giving Seller such initial notice, Purchaser shall promptly give Seller notice of any change in the information provided in the initial notice or any revised notice. If P urchaser a ncumbers its interest u nder this Agreement a s p ermitted by this Section 12.2, the following provisions shall apply: (a) Purchaser Lender shall have the right, but not the obligation, to perform any act required to be performed by Purchaser under this Agreement to prevent or cure a default by Purchaser, and such act performed by Purchaser Lender shall be as, effective to prevent or cure a default as if done by Purchaser. (b) Upon the receipt of a written request from Purchaser or any Purchaser Lender, Seller shall, and shall use good faith efforts to cause Seller Lender to, execute or arrange for the delivery of such certificates, consents, opinions, and other documents as may be reasonably necessary for Purchaser to consummate any loan or any part thereof and will enter into reasonable agreements with such Purchaser Lender that pvo$ide that Seller and Seller Lender recognize the rights of such Purchaser Lender upon foreclosure of Purchaser Lender's security interest and such other provisions as may be reasonably requested by any such Purchaser Lender, provided, however, that any such agreement shall not constitute a modification hereof unless Seller otherwise agrees in its sole discretion. (c) Seller acknowledges that upon an event of default by Purchaser under any financing documents relating to the loan secured by a security interest in Purchaser's interest under this Agreement any Purchaser -Under may (but ""shall -hot be -obligated to) 34LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Portl.0-1418531.21 0058892-00026 Deleted: PoNnd3-1418531.20 0058892-00026 ' 074 assume, or cause its designee or a new purchaser to assume, all of the interests, rights, and obligations of Purchaser thereafter arising under this Agreement. Notwithstanding any such assumption, Purchaser shall not be released and discharged from and shall remain liable for any and all obligations to Seller arising or accruing hereunder. (d) Seller agrees that no Purchaser Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of Purchaser or shall have any obligation or liability to Seller with respect to this Agreement except to the extent any of Purchaser Lender has assumed the obligations of Purchaser hereunder pursuant to this Section 12.2; provided that Seller shall nevertheless be entitled to exercise all of its rights hereunder in the event that Purchaser or Purchaser Lender fails to perform Purchaser's obligations hereunder. ARTICLE 13 REPRESENTATIONS COVENANTS, AND WARRANTIES 13.1 Seller's Representations and Warranties. Seller represents and warrants as follows: (a) Seller is a corporation, duly organized and validly existing under the laws of the state of Oregon, authorized to conduct business in the state of Wyoming, Arizona, Nevada, and California. (b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller's performance under this Agreement. (c) Seller has obtained, or will obtain prior to commencement of deliveries of Delivered Energy hereunder, all regulatory approvals required by any governmental authority, whether federal, state or local, in order to perform its obligations hereunder. (d) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or k:default under or require any consent, license, or approval that has not been obtained pursuant to any of the terms, conditions, or provisions of any law, rule, or regulation; any order, judgment, writ, injunction, decree, determination, award, or other instrument or legal requirement of any court or other agency of government; the documents of formation of Seller o r any contractual 1 imitation, restriction, or outstanding trust i ndenture, deed of trust, mortgage, loan agreement, lease, other evidence of indebtedness, or any other Agreement or instrument to which Seller is a party or by which it or any of its property is bound and will not result in a breach of or a default under any of the foregoing. 35 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponh0-1418531.21 0058892470026 _ - D¢leted: Por11nd3-148531.20 0058892-00026 075 (f) Seller has, by proper action of its members, taken all such action necessary to authorize the execution and delivery of, and the performance by Seller, of its obligations under, this Agreement. (g) This Agreement is a legal, valid, and binding obligation of Seller enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors' rights or by the exercise of judicial discretion in accordance with general principles of equity. (h) Seller is party to a power purchase agreement between it and High Winds, LLC, pursuant to which Seller holds the right to purchase the energy and Environmental Attributes generated by the Project in accordance with the terms of the power purchase agreement. The Project is currently expected to have an installed capacity of 145.8 MW. 13.2 Purchaser's Representations and Warranties. Purchaser represents and warrants as follows: (a) Purchaser is a municipal corporation created pursuant to the laws of the State of California, authorized to conduct business in each jurisdiction where necessary for the conduct of its business, except where such failure does not have a material adverse effect on Purchaser's performance under this Agreement. (b) Purchaser has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement. (c) The execution and delivery of this Agreement, the consummation of the transactions contemplated herein, and the fulfillment of and compliance by Purchaser with the provisions of this Agreement will not conflict with or constitute a breach of or a default under or require any consent, license, or approval that has not been obtained pursuant to any of the terms, conditions or provisions of any law, rule, or regulation; any order, judgment, writ, i njunction, d ecree, d etermination, award, or o ther i nstrument or legal requirement of any court or other agency of government; the documents of formation of Purchaser or any contractual limitation, restriction, or outstanding trust indenture, deed of trust, mortgage, loan agreement, lease, other evidence of indebtedness, or any other Agreement or instrument to which Purchaser is a party or by which it or any of its property is bound and will not result in a breach of or a default under any of the foregoing. (d) Purchaser has, by proper corporate action, taken all such action necessary or advisable to authorize the execution and delivery of, and the performance by Purchaser of its obligations under, this Agreement. A copy of the applicable documents authorizing Purchaser to enter into this Agreement shall be provided to Seller within 10 days of the pereteC: Ponhm3-r41ss31.w Effective -Date- ----------------------- ----------------- ---- ooses92-0oo26 36 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Panln63-1418531.21 0058892-00026 076 (e) This Agreement is a legal, valid, and binding obligation of Purchaser enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors' rights or by the exercise of judicial discretion in accordance with general principles of equity. ARTICLE 14 MISCELLANEOUS 14.1 Severability. The invalidity, in whole or in part, of any of the articles or paragraphs of this Agreement will not affect the validity of the remainder o f such articles or paragraphs. 14.2 Amendment. No modification, amendment, or other change to this Agreement will be effective unless consented to in writing by each of the Parties. 14.3 Waiver. Failure or forbearance by any Party to exercise any of its rights or remedies under this Agreement shall not constitute a waiver of such rights or remedies. No Party shall be deemed to have waived or forborne any right or remedy resulting from such failure to perform unless it has made such waiver specifically in writing. 14.4 Further Assurances. The Parties shall do and shall perform all such acts and things; shall execute all such deeds, documents, and writings; and shall give all such further assurances as may be necessary to carry out the intent of this Agreement. In particular, if any governmental or administrative approval, permit, order, or other authorization shall be necessary relative to this Agreement and any provision of this Agreement or any transaction contemplated by this Agreement, each Party shall use all reasonable efforts to assist in the obtaining of such approval, permit, order, or other authorization. 14.5 No Third -Party Beneficiaries. There are no third -party beneficiaries to this Agreement, and this Agreement shall not impart any rights enforceable by any Person that is not a Party. 14.6 Time. Unless otherwise specified in this Agreement, all references to specific times under this Agreement shall be references to Pacific standard or Pacific daylight savings time, whichever is then prevailing. %, '` 14.7 Headings Captions; Construction-, Conflict Between Aereement and Exhibits. All indexes, titles, subject headings, section titles, and similar items are provided for the purpose of reference and convenience and are not intended to affect the meaning of the content or scope of this Agreement. Any term or provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Party. The Parties collectively have prepared this Agreement, and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part 37 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Panlnd3-1418531.21 0058892-00026 ___ — Deleted: PmtlM3-1418531.20 0058892-00026 077 hereof. Because both Parties have participated in the drafting of this Agreement, the usual rule of contract construction that resolves ambiguities against the drafter shall not apply. 14.8 Forward Contract. The Parties acknowledge and agree that this Agreement and the transactions contemplated by this Agreement constitute a "forward contract" within the meaning of the United States Bankruptcy Code and that Seller is a "forward contract merchant" within the meaning of the United States Bankruptcy Code. 14.9 Entire Aereement. This Agreement (including the attached Exhibits, which are incorporated by this reference) and all amendments to this Agreement contain the complete Agreement between Seller and Purchaser with respect to the matters contained in this Agreement and supersede all other Agreements, whether written or oral, with respect to the matters contained in this Agreement. 14.10 Confidential Information. The Parties have and will develop certain information, processes, know-how, techniques, and procedures concerning the Project (or the Alternate Project) and w ill also share certain information concerning their financial condition and, in the case of Seller, the condition of Seller's Guarantor (collectively, "Information') that they consider confidential and proprietary. Notwithstanding the confidential and proprietary nature of such Information, the Parties (each, a "Disclosing Party") may make this Information available to the other (each, a "Receiving Party") subject to the following provisions of this Section 14.10: (a) At the time of furnishing or making available for inspection such confidential or proprietary Information, the Disclosing Party will expressly designate by label, stamp, or oral communication (to be confirmed in writing) the Information that it considers to be confidential and/or proprietary; provided, however, that financial information provided by Seller with respect to itself or Seller's Guarantor shall always be deemed to be confidential and proprietary. (b) The Receiving Party's obligations with respect to the use or disclosure of such Information will be as set forth in this Section 14.10. (c) Upon receiving or learning of Information designated as confidential and/or proprietary by the Disclosing Party, the Receiving Party shall: 4, (1) treat such Information as confidential and use reasonable care not to divulge such Information to any third party except as required by law, subject to the restrictions set forth below; (2) restrict access to such Information to employees (and others who agree to be bound by this Agreement) whose access is reasonably necessary in developing and financing the Project (or the Alternate Project) and for the purposes of this Agreement, including Persons who agree to be bound by this ------ - ----- Agreementwho may -provide debt or equity financing to Seller= - --------------------- Deleted: Pon1nd3-1418531.20 oa58892-M6 38 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 OO59892LW26 (3) use such Information solely for the purposes of this Agreement; and (4) upon the termination of this Agreement and at the request of the Disclosing Party, destroy or return any such Information in written or other tangible form and any copies thereof. (d) The restrictions of this Section 14.10 do not apply to: (1) release of this Agreement to the FERC, which entity may cause the document to become a public document; (2) release of this Agreement or related staff reports to Purchaser's City Council, or advisory board, or the SCPPA Board, which entity may cause the document to become a public document; (3) other disclosures necessary to comply with Applicable Law or other applicable regulations; (4) information that is, or becomes, publicly known or available other than through the action of the Receiving Party in violation of this Agreement; (5) - information that is (i) in the possession of the Receiving Party prior to receipt from the Disclosing Party, or (ii) independently developed by the Receiving Party, provided that, in the case of clause (ii), the person or persons developing such information have not had access to any Information provided by the Disclosing Party; or (6) information that is, in the reasonable written opinion of counsel of the Receiving Party, required or advisable to be disclosed pursuant to applicable law or regulation (including any Freedom of Information Act request); provided, however, that the Receiving Party, prior to such disclosure, shall, to the fullest extent possible under the circumstances, provide reasonable advance notice to the Disclosing Party of the time and scope of the intended disclosure in order to provide the Disclosing Party an opportunity to obtain a protective order or otherwise seek to prevent, limit the scope of, or impose conditions4upon such disclosure. (e) Notwithstanding the foregoing, Seller may disclose Information to Seller Lender (if any) and Purchaser may disclose Information to the Purchaser Lender (if any) and any other entity expressing an interest in providing equity or debt financing or refinancing and/or credit support to either Party (and to any agent of or consultant to such entity), and the agent or trustee of any of them so long as the party to whom Information is disclosed agrees in writing to be bound by the confidentiality provisions of this Section `-------14,10-to the same extent -as -if itwerea Party- ----- ----- ------ -------------- ---------' -------- ----- 000518892-OOD26-1418s31.20 - 39 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PwlnE3-1418531.21 0058892-00026 079 The terms and conditions set forth in this Agreement shall be deemed to be Information subject to the confidentiality provisions o f this S ection 14.10. The obligations of the Parties under this Section 14.10 shall remain in full force and effect for two years following the termination of this Agreement. 14.11 Press Releases. Except as provided in Section 14.10, neither Party shall issue any press or publicity release or otherwise release, distribute, or disseminate any information for publication concerning this Agreement or the participation of the other Party in the transactions contemplated hereby without the prior written approval of the other Party, which approval will not be unreasonably withheld or delayed. 14.12 Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California without regard to otherwise governing principles of conflict of law. 14.13 No Agency. This Agreement is not intended, and shall not be construed, to create any association, joint venture, agency relationship, or partnership between the Parties or to impose any such obligation or liability upon either Party. Neither Party shall have any right, power, or authority to enter into any agreement or undertaking for, act as or be an agent or representative of, or otherwise bind the other Party. 14.14 Cooperation. The Parties acknowledge that they are entering into a long-term arrangement in which the c ooperation of both o f t hem w ill be required. I f, d uring t he T erm hereof, requested cooperation either Party will materially benefit a Party in performing this Agreement and is without detriment to the other Party, the Parties commit to each other to make reasonable efforts provide such cooperation. 14.16 Effect of Force Majeure Event; Third Party Failure to Deliver Environmental Attributes. (a) General. Notwithstanding any other provision of this Agreement, each Party's obligations under this Agreement shall be suspended by a Force Majeure Event but only to the extent that the Force Majeure Event prevents the affected Party from performing its obligations under this Agreement. The affected Party's time for performance shall be extended by a period of time reasonably necessary to compensate for the delay caused by the Force Majeure Event, provided that the affected Party shall use diligent efforts to remedy okovercome the Force Majeure event; provided further that neither Party shall be required to settle any strike or labor dispute o ther than in its sole discretion. The occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments required to be made hereunder. (b) Force Majeure Event Affectimz Metered Output. If a Force Majeure Event affecting the Project, the Alternate Project, any of the Interconnection Facilities, or the Transmission System reduces or prevents deliveries of Metered Output for a period greater than �cele8`P°m°°3-tatss3lw ihirtY(30)-da s,thenu arnotice�to-Purchaser,-Sellershall-havetheriBhtto-sus rend-deliveries-of 0058e92aoo26 40 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PonInd3-1418531.21 0058892-00026 Delivered Energy at the Delivery Point for the duration of the Force Majeure Event. If the Force Majeure Event reduces but does not prevent delivery of Metered Output, for a period greater than thirty (30) days, then upon notice to Purchaser Seller shall have the right to suspend deliveries of Delivered Energy at the Delivery Point on a pro rata basis relative to the extent by which the Force Majeure E vent reduces t he M etered O utput that the P roject or Alternate Project w ould otherwise produce but for the Force Majeure Event. Deliveries suspended under this provision shall not be made up, and the Base Schedule for the period in which deliveries are suspended shall be reduced as appropriate to reflect the effect of the Force Majeure Event. (c) Force Maieure Event Affecting Environmental Attributes. If a third party supplier fails to deliver Environmental Attributes from the Project or Alternate Project to Seller because of a Force Majeure Event affecting the Project, the Alternate Project, any of the Interconnection Facilities, or the Transmission System) such that Seller is not able to deliver such Environmental Attributes to Purchaser under this Agreement, Seller shall use commercially reasonable and diligent efforts to obtain Environmental Attributes from a replacement source or sources acceptable to Purchaser in the reasonable exercise of its discretion; provided, however, that Seller shall not be obligated to pay a greater price for replacement Environmental Attributes than what it pays its supplier for the Environmental Attributes produced by the Project or Alternate Project. If the Force Majeure event affecting the supply of Environmental Attributes prevents the supplier from delivering Environmental Attributes for a period of more than 120 days and Seller has not been able to arrange for a substitute source or sources of Environmental Attributes acceptable to both Parties, either Party may terminate this Agreement. Neither Party shall be liable for such termination. (d) Breach by Third Party Supplier Affecting Environmental Attributes. If a third party fails to deliver Environmental Attributes from the Project or Alternate Project because the third party is in breach of its supply agreement with Seller, Seller shall (i) use commercially reasonable and diligent efforts to compel the third party to deliver Environmental Attributes as required b y i is a greement w ith S eller and to recover damages from the s upplier, and (ii) u se commercially reasonable and diligent efforts to obtain Environmental Attributes from a replacement source acceptable to Purchaser in the reasonable exercise of its discretion; provided, however, that Seller shall not be obligated to pay a greater price for replacement Environmental Attributes than what it pays its supplier for the Environmental Attributes produced by the Project or Alternate Project... To the extent that Seller does not match energy delivered under this Agreement with Environmental Attributes because of a supplier's breach, Seller 4hp11 foi a period of 120 days after the commencement of such breach reduce the price for each MWh that is not matched by an Environmental Attribute by $11 per MWh. If Seller is unable, despite its commercially reasonable and diligent efforts, to compel the third party to deliver Environmental Attributes for re -delivery under this Agreement within 120 days of such breach, or to identify a substitute source or sources of Environmental Attributes acceptable to both Parties, either Party may terminate this Agreement. Neither Party shall be liable for such termination. 14.17 Non -Recourse Obligations. Notwithstanding any other provision of this ,Agreement, -. no. .Person..(nor-any..officer--- employee, -executive.-director,-agent - or -authorized_" petered. Panlnd3-148.531.20 0058892-00026 41 LANG -TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Pon1nd3-1418531.21 0058892,00026 081 representative of any such Person) other than Seller and Purchaser and any Person liable to the extent contemplated by a Guaranty or other Additional Security provided under this Agreement shall be liable for any payments due hereunder or for the performance of any obligation hereunder. In witness whereof, the Parties have caused this Agreement to be executed and delivered as of the date first set forth above. PPM ENERGY, INC. XXX By: By: Its: Its: Date: Date: V zt Deleted: PoNnd3-1418537.20 _.-.--.-_------______------_--______.-..-..-.--_._________...-_.. 0058892-00026 42 LANG -TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] PWIDO-1418531.21 0058892-0002.6 082 EXHIBITS EXHIBIT A Project Description EXHIBIT B Forth of Guaranty from Seller's Guarantor EXHIBIT C Form of Attestation EXHIBIT D Balancing Account Example v u, neleted: PordM3-1418531.20 _........-__.. 0058892-00026 43 LONG-TERM POWER PURCHASE AGREEMENT BETWEEN PPM ENERGY, INC. AND [XXX] Ponlnd3-1418531.21 0058892-00026 EXHIBIT A PROJECT DESCRIPTION The Project will be located on private land located in Solano County, California, on which Project Owner will obtain wind energy leases or other possessory real estate tights with the landowners. The real estate rights will allow Project Owner to construct and operate wind generation facilities for a defined term; and in exchange, each landowner will receive financial compensation. The wind generation facilities are expected to consist of wind turbines with an Installed Capacity of 145.8 MW and an assumed annual capacity factor of 33.33%. The Project's electrical system will consist of two key elements: (1) a collector system, which will collect energy from each wind turbine at approximately 575 to 690 volts (depending on the wind turbines selected) increased to 34.5 kV by a pad -mounted transformer and connect it to the Project substation; and (2) the substation, which will transform energy from 34.5 kV to 230 kV. The c ollector system c onsists o f t he pad m ount transformers and the 34.5 k V e lectric cables. Each wind turbine will generate power at approximately 575 to 690 volts (depending on the wind turbines selected). A transformer adjacent to each tower will transform the power to 34.5 kV. Transformers will be located on a transformer pad located approximately 5 feet from the tower pad. From there, power will be transmitted via a combination of underground and overhead 34.5 kV electric cables. The substation site will occupy approximately I to 2 acres in an area located approximately '/4 mile from the existing PG&E 230 kV transmission line crossing the Project site. The substation site will be a graveled, fenced area with transformer and switching equipment and an area to park utility vehicles. Transformers will be non -polychlorinated biphenyl (PCB) oil -filled types. DeletcA: PoNM.3-1418531.20 0058892-0W26 Pordr)6 1418531.21 0058892-0OO1b •.l EXHIBIT B FORM OF GUARANTY FROM SELLER'S GUARANTOR GUARANTY AGREEMENT This GUARANTY'AGREEMENT (the " Guaranty") is made as of the _ day of 2003, by PACIFICORP HOLDINGS, INC., a corporation duly organized and existing under the laws of the State of Delaware, U.S.A., with its head office situated at 825 N.E. Multnomah, Suite 2000, Portland, Oregon 97232, U.S.A., (herein called "Guarantor"), for the benefit of , a municipal corporation duly created and existing under the laws of the State of California (herein called "Beneficiary"). (Guarantor and Beneficiary are individually referred to herein as a " Party" and collectively as the "Parties.") RECITALS: WHEREAS PPM Energy, Inc. (" PPM"), a subsidiary of Guarantor, has rights to the electric energy output and associated environm natal attributes of a wind turbine electrical generation facility with an expected installed capacity of 145.8 MW to be constructed on a site located in Solano County, California (the "Project"); and WHEREAS, PPM desires to sell, and Benftciary desires to purchase electric energy equal to the metered output of an undivided [__) ( ) MW share of the installed capacity of the Project or of an Alternate Project (as defined in the Contract referred to below), along with any and all Environmental Attributes associated with such metered output; and WHEREAS to that end, the PPM and the Beneficiary have entered into that certain Long -Term Power Purchase Agreement (Wind Power) dated as of 2003 (the "Contract"); and V WHEREAS the Contract requires that PPM cause to be provided a guarantee of PPM's payment under the Contract, and Guarantor is willing to enter into this Guaranty to satisfy the conditions of the Contract. NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the Parties hereto agree as follows: Pm W3-1418531.21 0058892-00076 _ - IDeleted: Pwa d3-1418531.20 0058892-00026 1 MM 1. Except as expressly provided herein to the contrary, Guarantor hereby unconditionally and irrevocably guarantees to Beneficiary that in the event of PPM failing in any respect to perform its payment obligations under the Contract, subject to any cure period, Guarantor shall immediately upon first demand in writing by Beneficiary perform or take such steps as are necessary' to achieve performance of PPM' s payment obligations and shall indemnify and keep indemnified Beneficiary against any and all losses, damages, claims, costs, charges, and expenses howsoever arising from the said failure to the extent of PPM's payment obligations under the Contract. Notwithstanding any provision herein to the contrary, in no event shall Guarantor's aggregate liability hereunder exceed [ ] dollars (US$[ 1) 2. The liability of Guarantor hereunder shall not be reduced or discharged by any alteration in the relationship between Beneficiary and PPM which has been consented to by PPM in writing (with or without the knowledge or consent of Guarantor), or by any forbearance or indulgence by Beneficiary towards PPM or Guarantor whether as to payment, time, performance, or otherwise. 3. Guarantor agrees to make any payment due hereunder upon fust written demand without set-off or counterclaim and without any legal formality such as protest or notice being necessary, and waives all privileges or rights which it may have as a guarantor, including any right to require Beneficiary to claim payment or to exhaust remedies against PPM or any other person. 4. The obligations of Guarantor hereunder shall continue in full force and effect after expiration or termination of the Contract until all PPM' s payment obligations and liabilities under the Contract have been fully discharged. 5. This Guaranty and the undertakings herein contained shall be binding upon the successors and assigns of Guarantor and shall extend to and inure for the benefit of the successors or permitted assignees of Beneficiary. Beneficiary may assign, charge, or transfer all or any of its right, title and interest in this Guaranty upon such terms as Beneficiary may think fit to any agent for and on behalf of any syndicate of banks and financial institutions providing credit and guaranty facilities to Beneficiary in connection with the Contract and -to any permitted assignee of Beneficiary' s rights and responsibilities under the Coiltract. No person other than Beneficiary or such permitted assignees as described above is intended as a beneficiary of this Guaranty nor shall any such person have any rights hereunder. Guarantor may not assign or otherwise transfer any of its rights or obligations hereunder. 6. Notwithstanding anything to the contrary above, in the event of any claim under Ahis_Guaranty,arantor-Gushall be entitled-to-assert-any_defense,-set-off or counterclaim- -- - that -- celeted:Ponnd3-141as31.zo -- - ---_---------- 0058892-00026 PoN.3-1418531.21 0058892-00026 • Beneficiary could assert had such claim been made directly against any person under the Contract except defenses based upon (i) lack of authority of PPM to enter into and/or perform its obligations under the Contract or (ii) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or similar proceeding with respect to PPM. 7. In the event there is any dispute under the Contract that relates to a sum being claimed under this Guaranty, which dispute is submitted to arbitration or judicial resolution, the obligations under this Guaranty shall be suspended pending the outcome of such arbitration or judicial resolution and Guarantor further agrees that any award resulting from such arbitration or judicial resolution shall be conclusive and binding on it for purposes of determining its obligation under this Guaranty. 8. This Guaranty shall be governed by and construed in accordance with the laws of the State of California, provided that any provision of such law invalidating any provision of this Guaranty or modifying the intent of the Parties as expressed in the terms of this Guaranty shall not apply. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective authorized representatives as of the date fust written above. PACIFICORP HOLDINGS, INC. By: By: Name: Title: Pmind3-1418531.21 0058892-00026 Name: Title: V Deleted: Pordnd3-1418531.20 --- 892-00026 087 EXHIBIT C FORM OF ATTESTATION PPM Energy, Inc. Green Tag Attestation and Bill of Sale PPM Energy, Inc. ("PPM") hereby sells, transfers and delivers to ("Customer") the Environmental Attributes and Environmental Attribute Reporting Rights associated with the generation of the indicated energy for delivery to the grid (as such term(s) are defined in the (identify contract) (the "Contract') dated _, 200_ between PPM and Customer) arising from the generation for delivery to the grid of the energy by the Facility described below: Facility name and location: Fuel Type: Capacity (MW):_ Operational Date: (for facility that has added renewable capacity, show operational date and amount of new capacity) As applicable: CEC Reg. no. _ Energy Admin. ID no. _ Q.F. ID no. _ Dates MWhrs venerated 200 200_ _ 200 in the amount of one Environmental Attribute or its equivalent for each megawatt hour generated; and PPM further attests, warrants and represents as follows: i) to the best of its knowledge, the information provided herein is true and correct; it) its sale to Customer is its one and only sale of the Environmental Attributes and associated Environmental Attribute Reporting Rights referenced herein; iii) the Facility generated and delivered to the grid the energy in the amount indicated as undifferentiated energy; and [check one:] iv) PPM owns the Facility. _ iv) to the best of PPM's knowledge, each of the Environmental Attributes and Environmental Attribute Reporting Rights associated with the generation of the indicated energy for delivery to the grid have been generated and sold by the Facility. - This serves as a bill of sale, transferring from PPM to Customer all of PPM's right, title and interest in find to the Environmental Attributes and Environmental Attribute Reporting Rights associated with the generation of the energy for delivery to the grid. Contact Person: lel: l -503 -813 -_;fax: 1 -503 -813 - WITNESS N Y HAND, Deleted: PoNnd3-1418531.20 PPMEtFERGY; INC; - 0059892-00026 1 PoAnd3-1418531.210058892-00026 an Oregon corporation By Its Date: This Attestation may be disclosed by PPM and Customer to others, including the Center for Resource Solutions, to substantiate and verify the accuracy of PPM's advertising and public communication claims, as well as in PPM's advertising and other public communications. Deleted: Pamatl3-1418531.20 0058892-00026 Pont d3-1418531.21 0058892-00026 ,4ZL cjA INFORMATIONAL ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL FROM: JOSEPH F. HSU, DIRECTOR OF'UTILITIES� DATE: JULY 23, 2003 SUBJECT: HIGH WINDS PROJECT DEDICATION CEREMONY ON SEPTEMBER 18 On Thursday, September 18, 2003, PPM Energy, the company we are in the process of purchasing wind power from, will be holding a dedication event of its High Winds Project in Solano County. The facility is located in northern California about '/z hour from Napa. Officials from Southern California Public Power Authority (SCPPA) participating in this project have been invited to attend, along with the Governor and officials Yrdm Sacramento Municipal Utilities District (SMUD). At the writing of this report, details and logistics of the event were not available. These will - likely be provided at the Board meeting. Prepared by: Cary Kalscheuer, Assistant to the Director of Utilities 090 AZU5A L CMT t 4AIEA INFORMATIONAL ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL FROM: JOSEPH F. HSU, DIRECTOR OF UTILITIES DATE: JULY 23, 2003 SUBJECT: HIGH WINDS PROJECT DEDICATION CEREMONY ON SEPTEMBER 18 On Thursday, September 18, 2003, PPM Energy, the company we are in the process of purchasing wind power from, will be holding a dedication event of its High Winds Project in Solano County. The facility is located in northern California about 1/2 hour from Napa. Officials from Southern California Public Power Authority (SCPPA) participating in this project have been invited to attend, along with the Governor and officials from Sacramento Municipal Utilities District (SMUD). At the writing of this report, details and logistics of the event were not available. These will likely be provided at the Board meeting. Prepared by: Cary Kalscheuer, Assistant to the Director of Utilities Azusa Utility. Board Meeting J -61y 23, 2003 AZUSA-- LIGHT & WATER /A AZUSA LIGHT & WATER Power Resources Division Monthly Report • Status of Projects • Power Consumption Comparison • Wholesale Market Trend • Power Resource Budget Update • Preliminary Light Fund Financial For FY 01-02 h W Status s o � lrojiects • Resource Planning ➢ Continue to optimize the Power Resource Portfolio for the summer season. • Renewable Energy ➢ Continue to coordinate matters related to Southern California Public Power Authority's (SCPPA) wind -power contract. Due to last minute dropout by Cities of Banning and Vernon, staff is recommending stepping up the purchase by the City to keep contract intact. ➢ Power delivery commencement date has been changed to September 1, 2003. ➢ Discussions with the geothermal project has stalled. • Finalized the Settlement Agreement with Edison regarding Ancillary Service cost disputes. • Continue Settlement Discussion related to (1) City's Transmission Revenue Requirement (TRR) and (2) Edison's Wholesale Distribution Access Tariff (WDAT) charges. • Continued Preparations for the Issuances of Water and Electric Bonds. ➢ Discussions with Boi d Rating Agencies took place on the week of July 14. ➢ City Council approved the Bond documents on July 21St ➢ Estimated closing date of the Issuances — Mid August • Coordinate responses to data requests by Federal Energy Regulatory Commission •(FERC) in it's continued investigation of the Western Energy crisis. CITY OF AZUSA ENERGY CONSUMPTION COMPARISON PERCENT MONTH FY61-02 FY02-03 CHANGE JUL 21,524 23,581 AUG , 22,908 22,502 -1.77% SEP 21,242 23,047 8.506/. OCT 20 485 20 290 ---___ -0.95% -- .. ------ ..._ NOV . ._..._ --- __ - 18,353 ' _ 18,577 1.22%% DEC �._.__..._-.,.... 18,430 18,784 , 1.92% JAN 18,882 19,535-. 3.46%' FEB 17,202 '. 17,294 0.53%' MAR 18,535 19,280 4.02%., APR ...._ 18,137 18,425 Mqy 19,148: 20,0114 51 %' JUN 20,820 20,310 TOTAL 235,666 241,637 _-_ - 2.53%- ENERGYCONSUMP710N IN MWH ............ MONTH AVERAGE AVERAGE ON PEAK PRICE OFF PEAK PRICE $26.59 $32.20 $38.73 $31.52 $32.97 NOV 02 $32.59 DEC 02 $39.25 JAN 03 $39.13 FEB 03$54.02 f MAR 03 r $53.33 APR 03 $42.09 MAY 03 $44.49 JUN 03 $50.59 ALL PRICES IN $/MWH_��� C) w cn 1F -. �n�auvo Power Resource Cost Accounting FY '02-'03 r- I.l R Retail Sales in MWhs: Projected Revenues: Retail: Wholesale: CAISO: Total: Projected Cost: Power Resources: Transfer to General Fund: Distribution & Customer Care Total: Net Revenue on a Cash Basis: ce 2, 2419682 MWh, 2.57% inc from FY 01-02 $24,200,000 $6,913,079 $882,402 $315994,481 $22045218 $2,204,957 $5,713,358 $3057229533 $1,272,948 Due to City's PTO status (per May 21s' projection) (per May 21s' projection) •:* Light Fund had a profitable year, albeit at the expense of higher retail ❖ San Juan Unit #3 generated about 223,175 MWhs or at 84.9% availability for the fiscal year slightly below the historical average of high 80 to low 0 90%, but better than fiscal year 01-02 performances. Continue , • Looking Ahead, we can expect: 1. Flat to lower projected power resource costs due to expiration of the above market contracts at the end of 2002 (Pasadena and Sempra gas hedges). 2. Higher distribution and customer care costs due to (a) costs associated with the new substation financing and O&M"and (b) general escalation of the overhead costs. 3. Slightly higher $ contribution to general fund due to the retail rate increase as of July 1, 2603. • Overall, the Light Fund remain on course as projected in the May 21 st financial projections. a cc TRANSFER POLICY TALKING POINTS (7/23/03) 1. Parameters II. Procedures III. Documentations Parameters A. 1. Franchise: 2% of annual gross retail sales revenues. 2. In -Lieu Tax: 8% of annual gross retail sales revenues. / B. Allocations: (Needs review for its reasonableness and justifications). C. —Return on Investment: Interest and other income over and above that needed for operations and capital program reserves to be designated as annual return on investment. II. Procedures: A. Franchise and In -Lieu Taxes to be transferred semi-annually, subject to reconciliations at the close of fiscal year. B. Allocations: Proposed amount as recommended by the consultant needs to be reviewed. The amount seems to be on the high side in comparison with regular personnel costs. C. Return on Investment: Rather than budgeted as income, it would be treated as dividend at the closing of each fiscal year. When the amount is determined and authorized by the City Council/IIB, it is transferred to GF and to be used primarily for CIP of GF, rather for O&M. III. Documentations: Parameters and Procedures to be adopted by the CC/UB by Resolution (or Ordinance) whichever is appropriate. Procedures shall include how the Allocations and Dividends are calculated, and how escalations are to be calculated, how to make changes in the future, etc.. _ ��' n J �^�GGd � i�� 10f.IA Recap of Costs Aloocated to Light and Water FY 2003-2004 City Manager 270,004.04 City Council 123,312.27 Computer Services 26,047.08 City Clerk 29,446.78 Accounting 471,673.62 Cash Management 71,785.81 Purchasing 164,491.04 Human Resources 106,747.85 Facilities Maint 13,178.17 Central Garage 62,102.23 City Info Services 52,572.94 1,391,361.83 1112 2/12 City Manager Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description , City Admin -Utilities Inter -Govt Relation Legal Services Allocation Method % of Utility FTE's % of Adjusted Budget % of Adjusted Budget Total CAP 002 CAP 004 CAP 007 79,832.73 14,412.32 175,758.99 270,004.04 2/12 City Council Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description Allocation Method Total CAP 010 Legislative Services 50%-# of Agenda Items/ 123,312.27 50% of budget 3/12 Computer Services Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description CAP 015 Network Support CAP 017 Phone Support CAP 020 E-mail Support/Maint CAP 021 Finance Sys/Software CAP 023 GIS Mapping Allocation Method Total Wghtd # of Connects/Peripherals 13,583.29 # of Phones by Dept 2,025.21 # of Email Connections 2,132.47 If of Finance Sys Connect/Users 4,872.87 Estimate of usage 3,433.24 26,047.08 4/12 *0111, City Clerk Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description Allocation Method CAP 027 City Switchboard Svices # of Employees CAP 028 Dept Support # of Employees 5/12 Total 6,512.42 22,934.36 29,446.78 6/12 Accounting Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description Allocation Method Total CAP 040 General Accounting % of Adjusted Budget 194,251.08 CAP 041 Budget Prep/Coord % of Adjusted Budget 75,869.11 CAP 042 Payroll Services % of Salaries & Benefits 18,610.19 CAP 043 Accounts Payable # of Payables by Dept 21,001.36 CAP 044 CIP Accnting CIP Budget by Fund 37,139.77 CAP 046 Special Utility Acctng Allocated to Custmr Svices 16,532.58 CAP 047 Special Projects % of Adjusted Budget 57,799.37 CAP 048 Cash Mgmt I Cash Balance by Fund 20,829.06 CAP 049 Purchasing Services # of Payables by Dept 786.63 CAP 050 Inventory Control Value of Inventory by Fund 22,338.17 CAP 051 Fixed Asset Mgmt Value of Assets by Dept 6,516.30 471,673.62 6/12 Cash Management Allocations from General fund to Light & Water FY 2003-2004 Coat PoolCost Pool Description Allocation Method CAP 055 Investment Services Cash Balance by Fund 71 785 81 7/12 Purchasing Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Desc-iption Allocation Method CAP 056 Purchasing Services # of Payable By Dept CAP 057 Inventory Control Value of Inventory by Fund 8/12 Total 47,643.81 116,847.23 —T6�4.491 N e4it Human Resources Allocations from General fund to Light & Water FY 2003-2004 Cost Pool' Cost Pool Description CAP 060 Recruitment Services CAP 061 Benefit Adminstation CAP 062 Personnel Services CAP 063 General Liab Admin CAP 064 Workers Comp Admin AllocationMethod Total # of Recuitmnts-5 Yr Total 13,040.12 # of Employees 3,525.75 # of Employees 34,151.21 % of Adjusted Budget 38,713.28 # of W/C Claims -3 Yr Total 17,317.49 106, 747.85 9/12 Facilities Maintenance Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description Allocation Method CAP 070D L&W Bldg Maint If of Utility FTE's CAP 070L City Yard Bldg Maint 9 of Field employees 10112 Total 3,445.77 9,732.40 13,178.17 Central Garage Allocations from General fund to Light & Water FY 2003-2004 Cost Pool _Cost Pool Description Allocat;on Method CAP 080 Vehicle & Equip Maint # of Vehicles Total 62,102.23 11112 i11�144. City Information Services. Allocations from General fund to Light & Water FY 2003-2004 Cost Pool Cost Pool Description Allocation Method CAP 118 Intranet support % of Adjusted budget CAP 119 Internet/Webpage Supp % of Adjusted budget CAP 122 Info Sys Training % of Adjusted budget 12/12 Total 18,447.27 14,503.57 19,622.10 52,572.94