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HomeMy WebLinkAboutReso. 1985 - 046 - Approving the agreement for transfer of rights to capacity and energy of the north fork stanislaus river hydroelectric development project 411 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING APPROVING THE AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT. WHEREAS, the City of Redding and each of the Purchasing Participants have entered into the Third Phase Agreement with NCPA pursuant to which NCPA has agreed to provide, and the City of Redding and each of the Purchasing Participants have agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, Section 9 (c) of the Third Phase Agreement author- izes the City of Redding, as a Project Participant, subject to the terms and conditions thereof, to transfer, assign, sell or exchange all or a portion of the Project capacity and energy to which it is entitled to the Purchasing Participants and provides that the Purchasing Participants shall be entitled to the Project capacity and energy to the extent the same is so transferred, assigned, exchanged or sold; and WHEREAS, the City of Redding has determined to transfer, assign and sell all of its Project Entitlement Percentage of the capacity and energy of the Project to the Purchasing Participants in accordance with Section 9 (c) of the Third Phase Agreement on the terms and conditions herein contained; and WHEREAS, no Bonds have been issued to finance the cost of the Project; and r� • • WHEREAS, all the other conditions to the transfer, sale and assignment of the City of Redding' s Project Entitlement Percen- tage of the Project capacity and energy have been satisfied or will be satisfied on the effective date of such transfer, sale and assignment provided for in the Agreement for Transfer of Rights to Capacity and Energy of the North Fork Stanislaus River Hydroelectric Development Project (the "Transfer Agreement" ) ; and WHEREAS , Section 9 (c) of the Third Phase Agreement further provides that the Project Entitlement Percentage of the Project Participant so transferring, assigning, exchanging or selling all or a portion of its Project Entitlement Percentage shall be decreased and the obligations of such Project Participant under the Third Phase Agreement shall be discharged to the extent Project capacity and energy is transferred, assigned, exchanged or sold except for obligations incurred by NCPA prior to the date of such transfer, assignment, exchange or sale; and WHEREAS, there has been proposed and submitted to this meeting a form of the Transfer Agreement; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Redding as follows: Section 1 . The City Council hereby finds and determines that the terms and conditions of the Transfer Agreement is substantially the form submitted to this meeting and made a part hereof as though set forth in full herein be, and the same hereby is, approved. Section 2 . The City is hereby authorized to enter into the Transfer Agreement and the Mayor and the City Clerk are hereby -2- • • authorized to execute and deliver the Transfer Agreement by and on behalf of the City with such changes , insertions and omissions as may be approved by the City Attorney, said execution being conclusive evidence of such approval. Section 3. The Mayor and City Clerk and any other proper officer of the City, acting singly, be and each of them hereby is authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by the Transfer Agreement and by this resolution. I HEREBY CERTIFY that the foregoing resolution was intro- duced and read at a regular meeting of the City Council of the City of Redding on the 4th day of March , 1985 , and was duly adopted at said meeting by the following vote: AYES: COUNCIL MEMBERS: Demsher, Fulton, Gard, Pugh, & Kirkpatrick NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None /4‘4,(,(//4 eeter-/ HOWARD D. KIRK ATRICK, Mayor City of Redding ATTEST: ETHEL A. NICHOLS, City Clerk FORM AP ROVED: RAN ALL A. AYS, City A/ torney -3- 4 a FINAL DRAFT • AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT Dated as of February 1 , 1985 City of Redding and City of Alameda City of Healdsburg City ' of Roseville City of Santa Clara • AGREEMENT FOR TRANSFER OF RIGHTS TO CAPACITY AND ENERGY OF THE NORTH FORK STANISLAUS RIVER HYDROELECTRIC DEVELOPMENT PROJECT This Agreement, dated as of February 1, 1985, by and among the City of Redding and the Purchasing Participants (capitalized terms used herein shall have the meanings given such terms in Section 1 hereof) , WITNESSETH: WHEREAS, the City of Redding and each of the Purchasing Participants have entered into the Third Phase Agreement with NCPA pursuant to which NCPA has agreed to provide, and the City of Redding and each of the Purchasing Participants have agreed to take or cause to be taken, their respective Project Entitlement Percentages of the capacity and energy of the Project; and WHEREAS, Section 9 (c) of the Third Phase Agreement autho- rizes the City of Redding, as a Project Participant, subject to the terms and conditions thereof, to transfer, assign, sell or exchange all or a portion of the Project capacity and energy to which it is entitled to the Purchasing Participants and provides that the Purchasing Participants shall be entitled to the Project capacity and energy to the extent the same is so transferred, assigned, exchanged, or sold; and WHEREAS, the City of Redding has determined to transfer assign and sell all of its Project Entitlement Percentage of the capacity and energy of the Project to the Purchasing Participants in accordance with Section 9 (c) of the Third Phase Agreement on the terms and conditions herein contained; and WHEREAS, no Bonds have been issued to finance the cost of the Project; and WHEREAS, all the other conditions to the transfer, sale and assignment of the City of Redding' s Project Entitlement Percentage of the Project capacity and energy have been satisfied or will besatis- fied on the effective date of such transfer, sale and assignment pro- vided for herein; and WHEREAS, Section 9 (c) of the Third Phase Agreement further provides that the Project Entitlement Percentage of the Project Participant so transferring, assigning, exchanging or selling all or a portion of its Project Entitlement Percentage shall be decreased and the obligations of such Project Participant under the Third Phase Agreement shall be discharged to the extent Project capacity and energy is transferred, assigned, exchanged or sold except for obliga- tions incurred by NCPA prior to the date of such transfer, assign- ment, exchange or sale; NOW THEREFORE, the parties hereto do agree as follows: • • • i 1. Definitions. Terms used herein which are defined in the Third Phase Agreement shall have the same meanings herein as are given such terms in the Third Phase Agreement. In addition, the fol- lowing ol-lowing terms shall, for all purposes of this Agreement, have the fol- lowing meanings: "Purchased Project Entitlement Percentage" means, with respect to each Purchasing Participant, such Purchasing Participant ' s share of the City of Redding' s Project Entitlement Percentage of the capacity and energy of the Project identified in Section 2 hereof, as being the por- tion of the City of Redding ' s Project Entitlement Percentage purchased by such Purchasing Participant. "Purchasing Participant" means each of the City of Alameda, the City of Healdsburg, the City of Roseville, and the City of Santa Clara. " Third Phase Agreement " means the Agreement for Construction, Operation and Financing of the North Forth Stanislaus River Hydroelectric Development Project, dated as of September 1 , 1982, by and among NCPA and the Project Participants as the same has been and may be amended or supplemented from time to time in accordance with its terms.. Except where the context otherwise requires, words import- ing the singular number shall include the plural number and vice versa, and words importing persons shall include firms, associations, agencies and corporations. 2. Transfer of Purchased Project Entitlement Percentages. The City of Redding hereby transfers, sells, and assigns to each of the Purchasing Participants, and each of the Purchasing Participants hereby accepts and agrees to take or cause to be taken, in accordance with the terms and conditions of the Third Phase Agreement the Purchased Project Entitlement Percentage of the Project capacity and energy to which the City of Redding is entitled pursuant to the Third Phase Agreement indicated below: -2- 111 1 • Purchased Project Purchasing Entitlement Participant Percentage City of Alameda 2.61% City of Healdsburg 0 .15% City of Roseville 5 .14% City of Santa Clara 2 .14% Aggregate Purchased Project Entitlement Percentages 10 .04% 3. Liability for Future Obligations under the Third Phase Agreement. Each of the parties hereto acknowledges and agrees that, upon the effectiveness of this Agreement, except as set forth in Section 4 below, the obligations of the City of Redding under the Third Phase Agreement with respect to the Purchased Project Entitlement Percentages shall be discharged and each of the Purchasing Participants shall be solely responsible thereunder for all obligations related to its respective Purchased Project Entitlement Percentage. Accordingly, except as set forth in Section 4 below, each of the Purchasing Participants hereby agrees that the City of Redding shall not be liable for any obligations under the Third Phase Agreement with respect to its Purchased Project Entitlement Percentage from the effectiveness of this Agreement and from such time each of the Purchasing Participants hereby expressly assumes the obligations undertaken by the City of Redding under the Third Phase Agreement with respect to the Purchased Project Entitlement Percentage of such Purchasing Participant. Each of the Purchasing Participants agrees to indemnify and hold the City of Redding harmless for any costs to the City of Redding under the Third Phase Agreement in connection with such Purchasing Participant' s Purchased Project Entitlement Percentage incurred after the effectiveness of this Agreement. 4. Liability for Prior Obligations under the Third Phase Agreement. Each of the Purchasing Participants hereby expressly disclaims, and the City of Redding agrees and acknowledges that no Purchasing Participant shall bear; any responsibility for or in con- nection with any obligation of the City of Redding under the Third Phase Agreement incurred prior to the effectiveness of this Agreement including, without limitation, any obligation relating to an -3- 411 411 obligation of NCPA incurred in connection with the Project prior to such effectiveness. 5. Reimbursement of Prior Advances. Notwithstanding the transfer, sale and assignment of the Purchased Project Entitlement Percentages pursuant hereto, the parties agree that the City of Redding continues to be entitled to all amounts due under ' Section 16 of the Third Phase Agreement with respect to moneys advanced by the city of Redding with respect to the Project, all on the terms and conditions, and subject to the limitations, contained in the Third Phase Agreement. No Purchasing Participant shall be entitled to any interest in such funds pursuant to this Agreement nor shall any Project Participant incur any liability to the City of Redding with respect to such funds hereunder. The parties hereto recognize that NCPA has, prior to the date of this Agreement, made assessments against the City of Redding in connection with the Project, certain of which have not been paid. The parties agree that nothing contained in this Agreement shall be construed as obligating either the City of Redding or any Purchasing Participant to pay any such assessment; provided, however, that in the event any party does pay such unpaid assessments, in whole or in part, such paying party shall be entitled to any reimbursement of such payments made by NCPA pursuant to Section 16 of the Third Phase Agreement anything contained above in this Section 5 to the contrary • notwithstanding. • 6 . Amendment of Appendix A to the Third Phase Agreement. Section 9 (c) of the Third Phase Agreement provides for an amendment • to Appendix A thereto to reflect any transfer, assignment, sale or exchange of Project capacity and energy thereunder. Each of the Purchasing Participants and the City of Redding hereby agrees to cooperate in amending Appendix A to the Third Phase Agreement to reflect the increased Project Entitlement Percentage of each of the Purchasing Participants as a result of acquiring the Purchased Project Entitlement Percentages hereunder and to reflect the decrease in the City of Redding' s Project Entitlement Percentage to zero. 7. Effective Date. This Agreement shall become effective for all purposes upon the happening of all of the following: (i) the execution and delivery hereof by the City of Redding and each of the Purchasing Participants; ( ii) the approval of NCPA; and (iii) the approval of each Project Participant unless NCPA determines, after consultation with its consulting engineer, that such approval should not be required. 8. Termination. This Agreement shall not be subject to termination by any party under any circumstances, whether based upon the default of any other party under this Agreement, or any other instrument, or otherwise. -4_ i • 9. Miscellaneous. The headings of the sections hereof are inserted for convenience only and shall not be deemed a part of this Agreement. If any one or more of the covenants or agreements provided in this Agreement to be performed should be determined to be invalid or contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all such counterparts shall constitute and be but one and the same instrument. -5- a I IN WITNESS WHEREOF, the City of Redding and each Purchasing Participant has executed this Agreement by its duly authorized offi- cers, and caused its official seal to be affixed hereto as of the date first above written. CITY OF ALAMEDA CITY OF ROSEVILLE By By And By [SEAL] [SEAL] CITY OF HEALDSBURG CITY OF SANTA CLARA By By And By [SEAL] [SEAL] CITY/OF REDIN 1�-c ,7` By A✓G7?GiLLt,. /✓ d• `� Mayor And i�" ,. =_-fir City Clerk FORM APPROVED [SEAL] CITY LE Al DEPT. -6-