HomeMy WebLinkAboutResolutions - No. 92-84RESOLUTION NO. 92-84
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A RESOLUTION OF THE LODI CITY COUNCIL
APPROVING AMENDMENT NO. 3 AND REVISION 2 OF EXHIBIT B TO CONTRACT
BETWEEN THE CITY OF LODI AND WESTERN AREA POWER ADMINISTRATION
BE IT RESOLVED by the City Council of the City of Lodi,
California, that the Mayor and the City Clerk be and are hereby
authorized to execute for an on behalf of the City of Lodi, California,
the attached Amendment No. 3 and Revision 2 of Exhibit B to Contract
No. DE-MS65-82WP59014 for Electric Service with the Western Area Power
Administration, which Amendment No. 3 and Revision 2 of Exhibit B were
duly presented to the City Council and are hereby approved.
Dated: May 6, 1992
State of California)
) ss
City of Lodi )
I, Alice M. Reimche, the duly appointed and qualified City Clerk
of the City of Lodi, California do hereby certify that the foregoing is
a true, accurate, and complete copy of a resolution duly passed and
adopted at a regular meeting of the City Council of the City of Lodi,
California, held on May 6, 1992, by the following vote:
Ayes: Council Members - Pennino, Sieglock, Snider and
Pinkerton (Mayor)
Noes: Council Members - None
Absent: Council Members - Hinchman
Dated: May 6, 1992 By: %•
Alice M. Re the
City Clerk
NO=*
RES9284/TXTA.02J
Amendment No. 3
Contract No. DE-MS65-82WP59015
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DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
CENTRAL VALLEY PROJECT
CONTRACT AMENDMENT WITH THE CITY OF LODI
(Settlement Arrangements Associated With Renewable Resource Allocation)
Amendment No. 3
Contract No. DE-MS65-82WP59015
UNITED STATES
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
Central Valley Project
CONTRACT AMENDMENT WITH THE CITY OF LODI
(Settlement Arrangements Associated With Renewable Resource Allocation)
Section Title Page
1.
Preamble . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 1
2.
Explanatory Recitals . . . . . . . . . . . . . . . . . . .
. . . 1-4
3.
Agreement . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 4
4.
Termination of Existing Agreements . . . . . . . . . . . .
. . . 4
5.
Term of Agreement . . . . . . . . . . . . . . . . . . . . .
. . . 4
6.
Definitions . . . . . . . . . . . . . . . . . . . . . . . .
. . . 5
7.
Renewable Resource Allocation . . . . . . . . . . . . . . .
. . . 6-7
8.
Renewable Resource Allocation Energy Sales Price
Escalation Settlement . . . . . . . . . . . . . . . . . .
. . . 8-9
9.
Termination of Renewable Resource Allocation Energy
Sales by the City . . . . . . . . . . . . . . . . . . . .
. . . 9
10.
Release of Claims . . . . . . . . . . . . . . . . . . . . .
. . . 9-10
11.
Energy Sales by the City . . . . . . . . . . . . . . .
. . . 10
12.
Energy Scheduling Procedures . . . . . . . . . . . . . . .
. . . 10-11
13.
Payment . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 11-12
14.
Modification of Conservation and Renewable Energy
Program Section of the Primary Contract . . . . . . . . .
. . . 12-15
15.
Modification of General Power Contract Provisions
Section of the Primary Contract . . . . . . . . . . . . .
. . . 15
16.
Other Agreements . . . . . . . . . . . . . . . . . . . . .
. . . 15-16
17.
Primary Contract to Remain in Full Force and Effect . . . .
. . . 16
Signature . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 16
Resolution
1 Amendment No. 3
Contract No. DE-MS65-82WP59015
2
3
UNITED STATES
4 DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
5 Central Valley Project
6 CONTRACT AMENDMENT WITH THE CITY OF LODI
7 (Settlement Arrangements Associated With Renewable Resource Allocation)
8
9 1. Preamble: This Contract Amendment is made this day of
10 , 1992, between the United States of America,
11 Western Area Power Administration (Western), and the City of Lodi (City
12 or Contractor), as part of Contract No. DE-MS65-82WP59015, as amended
13 (Primary Contract), pursuant to the same authorities as the Primary
14 Contract, and subject to all the provisions of the Primary Contract
15 except as herein amended.
16
17 2. Explanatory Recitals:
18 2.1 The City operates an electric utility system and is a preference
19 customer of Western. Western and the City have entered into
20 Contract No. DE-MS65-82WP59015, effective February 24, 1982, as
21 amended.
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23 2.2 Western has entered into Contract No. 14-06-200-2948A, dated
24 July 31, 1967, as amended, supplemented or superseded, with Pacific
25 Gas and Electric Company (PG&E), which provides for, among other
26 things, the right of Western to use PG&E's transmission system
27 forthe transmission of power and energy from Western to its
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preference customers of the Central Valley Project (CVP), including
the City.
2.3 The City is a member of the Northern California Power Agency
(NCPA), a joint powers agency of the State of California, and has
entitlement to 14.56 percent of the output of the Northern
California Power Agency Geothermal Plan No. 1 (NCPA Powerplant),
which has a capability of 120 MW.
2.4 Western declared its intent in its 1981 CVP Final Power Marketing
Plan to support renewable resources and cogeneration projects
through the marketing of 30 MW of which 1.5 MW was allocated to the
City for its participation in the NCPA Powerplant.
2.5 Under the provisions of Amendment No. 1 to the Primary Contract,
Western allocated 1.5 MW of capacity and associated energy to the
City with the stipulation that the City sell to Western an
equivalent amount of energy from the NCPA Powerplant or other
sources available to the City.
2.6 Western began purchasing energy from the City in September 1986
pursuant to the terms of Amendment No. 1 to the Primary Contract at
a rate of 35 mills/kwh and continued to purchase energy from the
City at a rate of 35 mills/kwh through March 1991.
2.7 Amendment No. 1 to the Primary Contract included provisions which
provided for the initial rate at which Western purchased energy
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from the City to escalate based on increases in the operation and
maintenance costs and geothermal steam costs associated with the
NCPA Powerplant.
2.8 The City and Western agree that the provisions in Amendment No. 1
to the Primary Contract which provide for Western to pay escalated
rates for energy purchased from the City may be interpreted
differently.
2.9 As set forth in Letter of Agreement No. 91 -SAO -10080, dated
March 29, 1991, the City and Western negotiated a settlement
providing, among other things, for Western to pay the City an
additional amount of money to reflect the escalated cost of the
energy produced by the NCPA Powerplant and purchased by Western
from September 1986 through March 1991.
2.10 As part of the settlement reached between Western and the City and
set forth in Letter of Agreement No. 91 -SAO -10080, the City agreed
to discontinue energy sales to Western as provided for under
Amendment No. 1 to the Primary Contract as of March 31, 1991, in
return for Western providing the City an additional Contract Rate
of Delivery of 0.6 MW beginning on April 1, 1991, and continuing
through the term of the Primary Contract.
2.11 The City and Western desire to incorporate the understandings
reached in Letter of Agreement No. 91 -SAO -10080 into this Contract
Amendment.
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2.12 The Parties also desire to provide for a scheduling arrangement
herein whereby the City may, from time to time, make energy
available for sale to Western, and Western may purchase such energy
at prices and under conditions to be mutually agreed upon.
3. Agreement: The Parties agree to the terms and conditions set forth
herein.
4. Termination of Existing Agreements: Amendment No. 1, dated
September 29, 1983, to the Primary Contract and Letter of Agreement
No. 91 -SAO -10080, dated March 29, 1991, are hereby terminated as of the
effective date of this Contract Amendment.
5. Term of Agreement:
5.1 This Contract Amendment shall be effective at 0000 hour on the
first day of April 1992, and shall terminate at 2400 hours on
June 30, 1994. In addition, this Contract Amendment shall be
subject to prior termination as otherwise provided for herein or in
the Primary Contract.
5.2 This Contract Amendment may be terminated by the City upon one year
written notice of termination to Western.
5.3 Upon termination of this Contract Amendment, benefits conferred
upon the Parties and obligations incurred hereunder shall be
preserved until satisfied.
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6. Definitions:
6.1 Contract Rate of Delivery - The City's maximum rate of delivery of
firm electric energy from the CVP pursuant to the Primary Contract
and the PG&E Contract, including any amendments to said Contracts.
6.2 NCPA Powerplant - The NCPA Geothermal Plant No. 1 of which the City
has an entitlement to 14.56 percent of the output and which has a
capability of 120 MW.
6.3 PG&E Contract - Contract No. 14-06-200-2948A dated July 31, 1967,
between Western and PG&E, as such Contract may hereinafter be
amended, supplemented or superseded, providing for, among other
things, a right of Western to use PG&E's transmission system for
the transmission of power and energy from the CVP to preference
customers of the CVP, including the City.
6.4 Point(s) of Receipt - The point agreed to by the City and Western
where energy may be delivered by the City to Western or to PG&E for
service to Western's loads.
6.5 Power Bill - The statement of charges issued to meet the
obligations of Western and the City under the Primary Contract.
6.6 Renewable Resource Allocation - The 2.1 MW portion of the City's
Contract Rate of Delivery made available to the City by Western
pursuant to Section 7 hereunder, and energy associated with such
portion.
5
111 7. Renewable Resource Allocation:
2 7.1 Upon the effective date of this Contract Amendment, the City's
3 Contract Rate of Delivery shall be increased by 2.1 MW. The 2.1 MW
4 Renewable Resource Allocation is comprised of a 1.5 MW Contract
5 Rate of Delivery which was provided to the City pursuant to
6 Amendment No. 1 to the Primary Contract and a 0.6 MW Contract Rate
7 of Delivery which was provided to the City pursuant to Letter of
8 Agreement No. 91 -SAO -10080.
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10 7.2 The right of the City to receive the Renewable Resource Allocation
11 shall be contingent upon the City maintaining a participation
12 interest in, or an entitlement to, the output of the NCPA
13 Powerplant at least equal to the 2.1 MW Renewable Resource
14 Allocation granted by this Contract Amendment. If the City fails
15 to maintain a participation interest in, or an entitlement to, the
16 output of the NCPA Powerplant at least equal to the 2.1 MW
17 Renewable Resource Allocation granted by this amendment, Western
18 may, at its discretion, withdraw all or a portion of the 2.1 MW
19 Renewable Resource Allocation.
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21 7.3 Pursuant to Section 10(d) and 10(e) of the Primary Contract, in
22 order to supply power to preference customers in the Trinity,
23 Tuolomne, and Calaveras Counties, California, Western may, in
24 accordance with the requirement of Reclamation Law and the Final
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Withdrawal Procedures (52 FR 7702), withdraw all or part of the
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City's Renewable Resource Allocation.
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7.4
Pursuant to Section 10(f) of the Primary Contract, in order to
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supply the project use requirements of the CVP, including operation
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of the Federal San Luis Unit, Western may, in accordance with the
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Final Withdrawal Procedures (52 FR 7702), withdraw all or part of
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the City's Renewable Resource Allocation.
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7.5
Pursuant to Section 10(g) of the Primary Contract, upon receipt of
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notice of reduction in the City's Renewable Resource Allocation,
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the City may terminate this Contract Amendment within thirty (30)
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days after receipt of such notice by notifying Western in writing
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prior to the desired termination date.
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The provisions set forth in Sections 10(h) and 10(i) of the Primary
17
Contract shall also be applicable to the Renewable Resource
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Allocation provided for in this Contract Amendment.
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All rights and obligations of the City and Western, with respect to
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the City's Renewable Resource Allocation, shall be consistent with
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the Primary Contract and the PG&E Contract.
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8. Renewable Resource Allocation Energy Sales Price Escalation Settlement:
8.1 In accordance with the settlement set forth in Letter of Agreement
No. 91 -SAO -10080 regarding the price of the energy sold by the City
to Western from September 1986 through December 1990 associated
with the City's Renewable Resource Allocation, Western agrees to
pay the City the sum of four hundred ninety-two thousand four
hundred fifty dollars ($492,450.00).
8.2 In addition to the amount set forth in Section 8.1 and consistent
with the settlement reached in Letter of Agreement
No. 91 -SAO -10080, Western agrees to pay the City an additional sum
of money for energy sold to Western by the City during January,
February, and March 1991. Such additional amount of money owed to
the City shall be determined by multiplying the amount of energy
sold to Western during said time period by the difference between
the price Western actually paid for the energy (35 mills/kWh) and
the then -current maximum price provided for pursuant to Section 15
of Amendment No. 1 to the Primary Contract (50 mills/kwh). Since
the City sold and delivered 3,240,000 kWh to Western in said time
period, Western agrees to pay the City an additional sum of forty-
eight thousand six hundred dollars ($48,600.00).
8.3 Western agrees to provide the money owed to the City, as computed
in Sections 8.1 and 8.2, in either a lump sum payment or as a
credit, equally distributed for a period of time not to exceed
8
I twelve (12) months, on the City's monthly power bill(s). The City
2 shall have thirty (30) days from the effective date of this
3 Contract Amendment to notify Western in writing of the method of
4 payment it desires. If the City fails to provide such notification
5 to Western, Western will provide the appropriate credit in the
6 City's monthly power bill over the succeeding twelve (12) months.
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8 9. Termination of Renewable Resource Allocation Energy Sales by the City to
9 Western: As consideration for the additional 0.6 MW Renewable Resource
10 Allocation granted to the City pursuant to Section 7.1 and the
11 compensation to be provided to the City pursuant to Section 8, the City
12 agrees that Western, as of April 1, 1991, shall have no continuing
13 obligation to purchase any energy from the City under the terms and
14 conditions of Amendment No. 1 to the Primary Contract. In addition,
15 Western and the City agree that Western shall have no obligation to
16 purchase energy from the City associated with the Renewable Resource
17 Allocation set forth in Section 7.1 herein-.
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19 10. Release of Claims: As additional consideration for the additional
20 0.6 MW Renewable Resource Allocation granted to the City pursuant to
21 Section 7.1; the compensation to be provided to the City pursuant to
22 Section 8; and the termination of energy sales by the City to Western
23 pursuant to Section 9; the City hereby agrees to waive and release any
24 and all claims that may exist between Western and the City regarding the
25 pricing or quantity of energy sold by the City to Western associated with
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the City's Renewable Resource Allocation from the effective date of
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Amendment No. 1 to the Primary Contract through the effective date of
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this
Contract Amendment.
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11.
Energy
Sales by the City:
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The City, or the City's designated agent, at its sole discretion,
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will determine the price, amounts, and times that energy is
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available to Western.
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Western shall determine, at its sole discretion, the amounts of
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such energy offered by the City, or the City's designated agent,
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which is desired to be purchased at the Point(s) of Receipt.
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Western shall schedule the energy desired to be purchased. Energy
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accounting hereunder shall be based on the scheduled quantities.
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The City shall deliver the energy requested by Western, and Western
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shall accept said energy deliveries made available by the City, or
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the City's designated agent, pursuant to Section 12 herein.
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12.
Energy
Scheduling Procedures:
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The City, or the City's designated agent, shall notify Western by
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1000 hours each workday, or as otherwise agreed, of the hourly or
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half-hourly amounts and price per kilowatt-hour for energy to be
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made available for sale to Western for the next day or days.
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12.2 Western shall notify the City, or the City's designated agent, by
1200 hours each workday, or as otherwise agreed, of the hourly or
half-hourly amounts of energy that Western requests from the City
at the price quoted by the City, or the City's designated agent,
for the following day or days.
12.3 The City, or the City's designated agent, or Western shall notify
the other Party of any adjustments to previously agreed upon
scheduled amounts as soon as practicable, but no later than fifteen
(15) minutes prior to any scheduled hour or half-hour.
12.4 Both Parties shall use their best efforts to keep changes to the
scheduled amounts to a minimum.
13. Payment:
13.1 The City shall pay Western for its Renewable Resource Allocation at
the established CVP rates for firm capacity and energy as provided
in the Primary Contract.
13.2 Western shall pay the City for the energy scheduled at the prices
agreed upon by Western each month pursuant to Section 11 herein.
13.3 Western may credit the monthly amount it owes the City for energy
purchases made hereunder against the amount the City owes Western
under the Power Bill for the same month. At the discretion of
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1 Western, if the amount owed by the City under the Power Bill is
2 less than the amount owed by Western for energy purchases
3 hereunder, Western shall either pay the difference to the City as
4 soon as the necessary vouchers can be prepared, ordinarily by the
5 last day of the month following the month in which the statement of
6 charges was received by Western, or credit the difference in the
7 City's Power Bill in the next succeeding month.
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9 13.4 Western may transfer or assign its payment obligations to the City
10 hereunder to other Western customer(s), and the City agrees to
11 receive payment from such customer(s) so long as payment is made
12 under the same conditions as provided herein; Provided, That any
13 such transfer or assignment shall not affect the rights and
14 obligations of the Parties hereunder and Western shall remain
15 primarily liable for its obligations hereunder. Such transfer or
16 assignment shall be provided for under the terms and conditions
17 between Western and its customers. Western agrees to notify the
18 City as soon as is practicable each month that Western exercises
19 its rights herein to transfer or assign its payment obligations to
20 another Western customer.
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22 14. Modification of Conservation and Renewable Energy Program Section of the
23 Primary Contract: Section 17 of the Primary Contract is hereby deleted
24 and the following substituted therefor:
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"CONSERVATION AND RENEWABLE ENERGY PROGRAM
17. (a) The City shall develop and implement a conservation and
renewable energy program. The City's program will be
developed and implemented in accordance with the terms
of the "Final Guidelines and Acceptance Criteria for
Customer Conservation and Renewable Energy Programs"
published in the Federal Register on August 21, 1985
(50 FR 33892), and any subsequent amendments thereto.
(b) To effect a conservation and renewable energy program,
Western and the City agree as follows:
(1) If requested and if within its capabilities,
Western will provide guidance and assistance in
the development of a conservation and renewable
energy program.
(2) The City will develop a conservation and
renewable energy program suitable for its own
geographic area and type of utility operation,
and will submit said program to Western within
twelve (12) months of the date of execution of
this Contract Amendment.
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(3) Conservation and renewable energy programs shall
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consist of a designated number of activities, as
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stipulated in the Guidelines and Acceptance
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Criteria. Credit will be given for past
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accomplishments if they are ongoing and current
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under the Guidelines and Acceptance Criteria.
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Approval and periodic review and verification of
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any program shall take place in accordance with
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the Guidelines and Acceptance Criteria.
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(c) The initial conservation and renewable energy program
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submitted by the City to Western will either be
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approved or disapproved within three (3) months of
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receipt. If an initial submittal is disapproved, a
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notification of deficiency in the program will be given
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in writing by Western. Deficiencies must be remedied
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within twelve (12) months of the date of notification.
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If an existing program is revoked at any time after
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approval, a notification of deficiencies in such
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program will be given in writing by Western.
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Deficiencies must be remedied within twelve (12) months
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of the date of notification.
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(d) If deficiencies in any program are not corrected within
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twelve (12) months of Western's written rejection of a
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program, the City's firm capacity and associated energy
entitlement, as set forth in this Contract, may be
reduced by ten (10) percent at the discretion of the
Administrator."
15. Modification of General Power Contract Provisions Section of the Primary
Contract: Article 19 of the Primary Contract is hereby deleted and the
following substituted therefor:
"GENERAL POWER CONTRACT PROVISIONS
19. The General Power Contract Provisions effective January 3,
1989, attached hereto, are hereby made a part of this
Contract the same as if they had been expressly set forth
herein."
16. Other Agreements:
16.1 If conflicts exist between any of the terms of this Contract
Amendment and the terms of the PG&E Contract, the terms of the PG&E
Contract shall control. This provision shall not constitute a
waiver of claims which the City might otherwise have against
Western or PG&E, and which do not affect interpretation of the
terms of this Contract Amendment, except as such specific claims
have been waived in accordance with Section 10 herein.
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16.2 This Contract Amendment shall be in addition to and shall
supplement the Primary Contract. Termination of this Contract
Amendment or breach of any of the terms of this Contract Amendment
shall not constitute termination of the Primary Contract or breach
of any of the terms of the Primary Contract.
17. Primary Contract to Remain in Full Force and Effect: Except as
expressly modified by this Contract Amendment, said Primary Contract
shall remain in full force and effect, and this Contract Amendment shall
be subject to all provisions of the Primary Contract, except as modified
herein.
IN WITNESS WHEREOF, the Parties hereto have caused this Contract Amendment to
be executed the day and year first above written.
(Seal)
ATTEST:
By: &�
_
Alice M. R imche
Title: City Clerk
WESTERN AREA POWER ADMINISTRATION
By:
Title: Area Manager
Address: 1825 Bell Street, Suite 105
Sacramento, California 95825
CITY OF LIF
By : 1
Thomas A. Peterson
Title: City Manager
Address: P. O. Box 3006
Lodi, CA 95241=1910
Approved as to form:
Bobby W. McNatt, City Attorney
16
Exhibit B, Revision 2
Contract No. DE-MS65-82WP59015
EXHIBIT B
(Contract Rate of Delivery)
This revised Exhibit B, made this day of ,
1992, to be effective under and as part of Contract No. DE-MS65-82WP59015,
dated February 24, 1982 (hereinafter called the Contract), shall become
effective on the first day of April 1992, shall, on said date, terminate
and supersede Exhibit B dated February 11, 1991, and shall remain in
effect until superseded by another Exhibit B; Provided, That this
Exhibit B or any superseding Exhibit B shall be terminated by the
termination of the Contract.
2. a. On and after the effective date of this Exhibit B, the Contract
Rate of Delivery (CRD) for firm power shall be 8,063 kilowatts of
Westlands Withdrawable Power and 3,673 kilowatts of the 26
megawatts of firm power, and 2,100 kilowatts pursuant to Amendment
No. 3 to this Contract, which provides for the City's Renewable
Resource Allocation, for a total CRD of 13,$36 kilowatts.
b. The City's Renewable Resource Allocation will be terminated in
accordance with Section 5 of Amendment No. 3.
3. The original allocation referred to in Section 10(c) of this Contract
shall be 8,327 kilowatts of Westlands Withdrawable Power and 3,673
kilowatts of the 26 megawatts of firm power for a total of 12,000
kilowatts.
ATTEST:
By. Alice M. R42imche
Title: City Clerk
Approved as to form:
Bobby W. McNatt, City Attorney
WESTERN AREA POWER ADMINISTRATION
By:
Title: Area Manager
Address: 1825 Bell Street, Suite 105
Sacramento, California 95825
CITY OF YI,
�CA R fIA
By. f
Title:Thomas A. Peterson, City Manager
Address: P.O. Box 3006 '
Lodi, Ca 95241-1910
_fective January 3, 1989
17. Resale of Firm Electric Service ............................... 8
18. Contract Subject to Colorado River CcaTpact.................... 8
V. FACILITIES PROVISIONS.
19. Design Approval ............................................... 9
20. Inspection and Acceptance ..................................... 9
21. As -Built Drawings ............................................. 9
22. Equipment Ownership Markers ................................... 9-10
23. Third -Party Use of Facilities ....:............................ 10
24. Changes to Western Control Facilities ......................... 10
25. Modification of Western Facilities ............................ 10
26. Transmission Rights.. .......................................... 11
* 27. Construction and Safety Procedures ............................ 11-12
VI • MER PROVISICUS.
* 28. Authorized Representatives of the Parties ..................... 12
29. Effect of Section Headings .................................... 12
30. Operating Guidelines and Procedures ........................... 12
31. Uncontrollable Forces ......................................... 12-13
32. Liability..................................................... 13
* 33. Environmental Compliance ...................................... 13
34. Cooperation of Contracting Parties ............................ 13
35. Transfer of Interest in Contract by Contractor ................ 14
36. Waivers....................................................... 14
37. Notices....................................................... 14
38. Contingent Upon Appropriations ................................ 14
39. Officials Not to Benefit ...................................... 14
40. Covenant Against Contingent Fees .............................. 15
* 41. Contract Work Hours and Safety Standards ...................... 15
* 42. Equal Opportunity Employment Practices ........................ 15
43. Use of Convict Labor .......................................... 15
* Revised January 3, 1989.
WESTERN AREA POWER ADMINISTRATION
CORAL POWER CONTRACT PROVISIONS
PAGE
I. APPLICABILITY.
1.
Applicability.................................................
2
II. DELIVERY OF SERVICE PROVISIONS.
2.
Character of Service ..........................................
2
3.
Use of Capacity or Energy in Excess of Contract Obligation ....
2
4.
Continuity of Service .........................................
2-3
5.
Multiple Points of Delivery ...................................
3
6.
Metering......................................................
3-4
7.
Existence of Transmission Service Contract ....................
4
* 8.
Conditions of Transmission Service ............................
4-5
9.
Multiple Points of Delivery Involving Direct and Transmitted
Deliveries....................................................
5
10.
Construction, Operation, and Maintenance of Contractor's
PoorSystem ..................................................
5
III. RATES,
BILLIW, AND PAYbOU PROVISIONS.
11.
Change of Rates ...............................................
6
12.
Minimum Seasonal or Annual Capacity Charge ....................
6
13.
Billing and Payment ...........................................
6-7
14.
Nonpayment of Bills in Full when Due ..........................
7
15.
Adjustments for Fractional Billing Period .....................
7
16.
Adjustments for Curtailments to Finn Service ..................
7-8
17. Resale of Firm Electric Service ............................... 8
18. Contract Subject to Colorado River CcaTpact.................... 8
V. FACILITIES PROVISIONS.
19. Design Approval ............................................... 9
20. Inspection and Acceptance ..................................... 9
21. As -Built Drawings ............................................. 9
22. Equipment Ownership Markers ................................... 9-10
23. Third -Party Use of Facilities ....:............................ 10
24. Changes to Western Control Facilities ......................... 10
25. Modification of Western Facilities ............................ 10
26. Transmission Rights.. .......................................... 11
* 27. Construction and Safety Procedures ............................ 11-12
VI • MER PROVISICUS.
* 28. Authorized Representatives of the Parties ..................... 12
29. Effect of Section Headings .................................... 12
30. Operating Guidelines and Procedures ........................... 12
31. Uncontrollable Forces ......................................... 12-13
32. Liability..................................................... 13
* 33. Environmental Compliance ...................................... 13
34. Cooperation of Contracting Parties ............................ 13
35. Transfer of Interest in Contract by Contractor ................ 14
36. Waivers....................................................... 14
37. Notices....................................................... 14
38. Contingent Upon Appropriations ................................ 14
39. Officials Not to Benefit ...................................... 14
40. Covenant Against Contingent Fees .............................. 15
* 41. Contract Work Hours and Safety Standards ...................... 15
* 42. Equal Opportunity Employment Practices ........................ 15
43. Use of Convict Labor .......................................... 15
* Revised January 3, 1989.
Effective January 3, 1989
WESTERN AREA POWER ADMINISTRATION
GENERAL POWER CONTRACT PROVISIONS
I. APPLICABIII'1'Y.
1. AMlicabilit
1.1. These General Pacer Contract Provisions shall be a part of
the contract to which they are attached. These provisions set forth general
conditions applicable to the contract. Specific teras set forth in the
contract have precedence over any provision herein.
1.2. If the Contractor has member utilities which are either
directly or indirectly receiving benefits from the contract, then the
Contractor shall require such members to comply with the General Power
Contract Provisions, Articles 10, 17, 18, 33, 34, 41, 42, and 43.
II. DELIVERY OF SERVICE PROVISIONS.
2. Character of Service.
Electric energy supplied or transmitted under the contract will
be three-phase, alternating current, at a nominal frequency of sixty (60)
hertz (cycles per second).
3. Use of Capacity or Energy in Excess of Contract Obligation.
The Contractor is not entitled to use Federal power, energy, or
capacity in amounts greater than the Western contract delivery obligation in
effect for each type of service provided for in the contract except with the
approval of the Contracting Officer. Unauthorized overruns of contract
delivery obligations shall be subject to charges specified in the contract
or the applicable rate schedules. Overruns shall not establish any
continuing right thereto and the Contractor shall cease any overruns when
requested by the Contracting Officer, or in the case of authorized overruns,
when the approval expires, whichever occurs first. Nothing in the contract
shall obligate Western to increase any delivery obligation. If additional
power,energy, or capacity is not available from Western, the responsibility
for securing additional power, energy, or capacity shall rest wholly with
the Contractor.
4. Continuity of Service.
Electric service will be supplied or transmitted continuously
except for: (1) fluctuations, interruptions, or reductions due to
uncontrollable forces, as defined in Article 31 herein, (2) fluctuations,'
interruptions, or reductions due to operation of devices installed for power
system protEction; and (3) temporary fluctuations, interruptions, or
reductions, which, in the opinion of the party supplying the service, are
necessary or desirable for the purposes of maintenance, repairs,
replacements, installation of equipment, or investigation and inspection.
The party supplying service, except in case of emergency, will give the
party to wham service is being provided reasonable advance notice of such
temporary interruptions or reductions and will remove the cause thereof with
diligence.
5. Multiple Points of Delivery.
When electric service is supplied at or transmitted to two or
more points of delivery under the same rate schedule, said rate schedule
shall apply separately to the service supplied at or transmitted to each
point of delivery; Provided, That where the meter readings are considered
separately, and during abnormal conditions, the Contractor's system is
interconnected between points of delivery such that duplication of metered
power is possible, the meter readings at each affected point of delivery
will be adjusted to campensate for duplication of power demand recorded by
meters at alternate points of delivery due to abnormal conditions which are
beyond the Contractor's control or temporary conditions caused by scheduled
outages.
6. Metering.
6.1. The total electric power and energy supplied or transmitted
under the contract will be measured by metering equipment to be furnished
and maintained by Western or by the Contractor acting as the designated
representative of Western. The Contractor shall ensure that metering
equipment furnished and maintained by the Contractor or another power
supplier, as provided in the contract, meets the metering standards of
Western if such metering equipment will be used for billing or other
accounting purposes by Western.
6.2. Meters shall be sealed and the seals shall be broken only
upon occasions when the meters are to be inspected, tested, or adjusted, and
representatives of the interested parties shall be afforded reasonable
opportunity to be present upon such occasions. Metering equipment shall be
inspected and tested at least once each year by the party responsible for
meter maintenance and at any reasonable time upon request by either party
hereto, a supplemental power supplier, transmission agent, or control area
operator. Any metering equipment found to be damaged, defective, or
inaccurate shall be repaired and readjusted or replaced by the party
responsible for meter maintenance. Meters found with broken seals shall be
tested for tampering and, if appropriate, meter readings shall be adjusted
by Western pursuant to Article 6.3 below.
6.3. Except as otherwise provided in Article 6.4 hereof, should
any meter that is needed by Western for billing or other accounting purposes
fail to register accurately, the electric power and energy supplied or
transmitted during such period of failure to register accurately, shall, for
billing purposes, be estimated by the Contracting Officer frau the best
available information.
3
6.4. If acceptable inspections and tests of a meter needed by
Western for billing or other accounting purposes disclose an error exceeding
two percent (2%), then correction based upon the inaccuracy found shall be
made of the records of services furnished during the period that such
inaccuracy has existed as determined by the Contracting Officer; Provided,
That if such period of inaccuracy cannot be determined, correction shall be
made for the period beginning with the monthly billing period imrediately
preceding the billing period during which the test was made.
6.5. Any correction in billing resulting frau correction in
meter records shall normally be made in the next monthly bill rendered by
Western to the Contractor. Payment of such bill shall constitute full
adjustment of any claim between the parties hereto arising out of inaccuracy
of metering equipment.
7. Existence of Transmission Service Contract.
If the contract provides for western to furnish services using
the facilities of a third party, the obligation of Western shall be subject
to and contingent upon the existence of a transmission service contract
granting Western rights to use such facilities. If Western acquires or
constructs facilities which would enable it to furnish direct service to the
Contractor, Western, at its option, may furnish service over its own
facilities.
8. Conditions of Transmission Service.
8.1. When the electric service under the contract is furnished
by Western over the facilities of others by virtue of a transmission service
arrangement, the power and energy will be furnished at the voltage available
and under the conditions which exist from time to time on the transmission
system over which the service is supplied.
* 8.2. Unless otherwise provided in the contract or attached rate
schedule, the Contractor shall maintain a power factor at each point of
delivery from Western's transmission agent as required by the transmission
agent.
8.3. Western will endeavor to inform the Contractor fram time to
time of any changes contemplated on the system over which the service is
supplied, but the costs of any changes made necessary in the Contractor's
system because of changes or conditions on the system over which the service
is supplied shall not be a charge against or a liability of Western.
8.4. If the Contractor, because of changes or conditions on the
system over which service under the contract is supplied, is required to
make changes on its system at its own expense in order to continue receiving
service under the contract, then the Contractor may terminate service under
the contract upon not less than sixty (60) days, written notice given to the
Contracting Officer prior to making such changes, but not thereafter.
* Revised January 3, 1989.
8.5. If Western notifies the Contractor that electric service
provided for under the contract cannot be delivered to the Contractor
because of an insufficiency of capacity available to Western in the
facilities of others over which service under the contract is supplied, then
the Contractor may terminate service under the contract upon not less than
sixty (60) days' written notice given to the Contracting Officer prior to
the date on which said capacity ceases to be available to Western, but not
thereafter.
9. Multiple Points of Delivery Involving Direct and Indirect
Deliveries.
When Western has provided line and substation capacity under the
contract for the purpose of delivering electric service directly to the
Contractor at specified direct points of delivery and also has agreed to
absorb transmission service allowance or discounts for deliveries of energy
over other system(s) to indirect points of delivery and the Contractor
shifts any of its loads served under the contract from direct delivery to
indirect delivery, Western will not absorb the transmission service costs on
such shifted load until the unused capacity, as determined solely by the
Contracting Officer, available at the direct delivery points affected is
fully utilized.
10. Construction Operation and Maintenance of Contractor's
Power System.
The Contractor shall and, if applicable, shall require each of
its members or transmission agents to construct, operate, and maintain its
power system in a manner which, as determined by the Contracting Officer,
will not interfere with the operation of the system of Western or its
transmission agents over which electric services are furnished to the
Contractor under the contract, and in a manner which will coordinate with
the protective relaying and other protective arrangements of the system(s )
of Western or Western's transmission agents. western may reduce or
discontinue furnishing services to the Contractor if, after notice by the
Contracting Officer, the Contractor fails or refuses to make such changes as
may be necessary to eliminate an unsatisfactory condition on the
Contractor's power system which is determined by the Contracting Officer to
interfere significantly under current or probable conditions with any
service supplied from the power system of Western or from the power system
of a transmission agent of Western. Such a reduction or discontinuance of
service will not relieve the Contractor of liability for any mininnun charges
provided for in the contract during the time said services are reduced or
discontinued. Nothing in this article shall be construed to render Western
liable in any manner for any claims, demands, costs, losses, causes of
action, damages, or liability of any kind or nature arising out of or
resulting from the construction, operation, or maintenance of the
Contractor's power system.
5
III. RATES, BILL1%, Atm PAYMENT PROVISIONS.
11. Change of Rates.
Rates applicable under the contract shall be subject to change by
Western in accordance with appropriate rate adjustment procedures. If at
any time the United States presmilgates a rate changing a rate then in effect
under the contract, it will promptly notify the Contractor thereof. Rates
shall become effective as to the contract as of the effective date of such
rate. The Contractor, by written notice to the Contracting Officer within
ninety (90) days after the effective date of a rate change, may elect to
terminate the service billed by Western under the new rate. Said
termination shall be effective on the last day of the billing period
requested by the Contractor not later than two (2) years after the effective
date of the new rate. Service provided by Western shall be paid for at the
new rate regardless of whether the Contractor exercises the option to
terminate service.
12. Minimum Seasonal or Annual Capacity Charge.
When the rate in effect under the contract provides for a mininnnn
seasonal or annual capacity charge, a statement of the minimum capacity
charge due, if any, shall be included in the bill rendered for service for
the last billing period of the service season or contract year as
appropriate, adjusted for increases or decreases in the contract rate of
delivery and for the number of billing periods during the year or season in
wtich service is not provided. Where multiple points of delivery are
involved and the contract rate of delivery is stated to be a maxinwm
aggregate rate of delivery for all points, in determining the minimum
seasonal or annual capacity charge due, if any, the monthly capacity charges
at the individual points of delivery shall be added together.
13. Billing and Payment.
13.1. Western will issue bills to the Contractor for service
furnished during the preceding month within ten (10) days after the end of
the billing period.
13.2. If Western is unable to issue a timely monthly bill, it
may elect to render an estimated bill for that month to be followed by the
final bill. Such estimated bill shall be subject to the same paynent
provisions as a final bill.
13.3. Payments are due and payable by the Contractor before the
close of business on the twentieth (20th) calendar day after the date of
issuance of each bill or the next business day thereafter if said day is a
Saturday, Sunday, or Federal holiday. Bills shall be considered paid when
payment is received by Western; Provided, That payments received by mail
will be accepted as timely and without assessment of the charge provided for
in Article 14 if a United States Post Office first class mail postmark
indicates the payment was mailed at least three (3) calendar days before the
due date.
2
13.4. Whenever the parties agree, payments due Western by the
Contractor may be offset against payments due the Contractor by Western for
the sale or exchange of electric power and energy, use of transmission
facilities, operation and maintenance of electric facilities, and other
services. For services included in net billing procedures, payments due one
party in any month shall be offset against payments due the other party in
such month, and the resulting net balance shall be paid to the party in
whose favor such balance exists. The parties shall exchange such reports
and information that either party requires for billing purposes. Net
billing shall not be used for any amounts due which are in dispute.
14. Nonpayment of Bills in Full When Due.
14.1. Bills not paid in full by the Contractor by the due date
specified in Article 13 hereof shall bear an initial charge of two percent
(2%) of the amount unpaid. Each day thereafter, a charge of five hundredths
percent (0.05%) of the principal sum unpaid shall be added until the amount
due, including the two percent (2€) initial charge, is paid in full.
Payments received will first be applied to the charges for late payment
assessed on the principal and then to payment of the principal.
14.2. Western shall have the right, upon not less than fifteen
(15) days advance written notice, to discontinue furnishing the services
specified in the contract for nonpayment of bills in full when due, and to
refuse to resume such services so long as any part of the amount due remains
unpaid. Such a discontinuance of service will not relieve the Contractor of
liability for minimum charges during the time service is so discontinued.
The rights reserved to Western herein shall be in addition to all other
remedies available to Western either by law or in equity, for the breach of
any of the terms hereof.
15. Adjustments for Fractional Billina Period.
For a fractional part of a billing period at the beginning or end
of electric service, at the beginning or end of irrigation pumping service
each year, a fractional billing period under a new rate schedule, and for
fractional periods due to withdrawals of electric services, the demand or
capacity charge and minimum charges shall each be proportionately adjusted
in the ratio that the number of hours that electric service is available to
the Contractor in such fractional billing period bears to the total number
of hours in the billing period involved.
16. Adjustments for Curtailments to Finn Service.
16.1. Billing adjustments will be made if firm electric service
is interrupted or reduced because of conditions on the power system of the
United States for periods of 1 hour or longer in duration each. Billing
adjustments will not be made when such curtailment of electric service is
due to a request by the Contractor or a discontinuance of electric service
by Western pursuant to Article 14 (Nonpayment of Bills In Full When Due).
For purposes of billing adjustments under this article, the tern power
system of the United Stages shall include transmission facilities used under
contract but not owned by the United States.
16.2. The total number of hours of curtailed firm electric
service in any billing period shall be determined by adding: (1) the sum of
the number of hours of interrupted electric service to (2) the product, for
each reduction, of: the number of hours of reduced electric service and the
percentage by which electric service was reduced below the delivery
obligation of Western at the time of each said reduction of electric
service. The demand or capacity charge and applicable minimim, charges shall
each be proportionately adjusted in the ratio that the total number of hours
of electric service determined to have been curtailed bears to the total
number of hours in the billing period involved.
16.3. The Contractor shall make written claim within thirty (30)
days after receiving the monthly bill, for adjustment on account of any
curtailment of firm electric service, for periods of 1 hour or longer in
duration each, alleged to have occurred that is not reflected in said bill.
Failure to make such written claim, within said thirty -day (30 -day) period,
shall constitute a waiver of said claim. All curtailments of electric
service, which are due to conditions on the power system of the United
States, shall be subject to the provisions of this section; Provided, That
withdrawal of power and energy under the contract shall not be considered a
curtailment of electric service.
IV. POWER SANS PROVISIONS.
17. Resale of Firm Electric Service (Wholesale Sales for Resale
The Contractor shall not sell any firm electric power or energy
supplied under the contract to any electric utility customer of the
Contractor for resale by that utility customer; Provided, That the
Contractor may sell the electric power and energy supplied under the
contract to its members on condition that said members not sell any of said
poster and energy to any customer of the number for resale by that customer.
18. Contract Subject to Colorado River C=)act.
Where the energy sold under the contract is generated from waters
of the Colorado River system, the contract is made upon the express
condition and with the express covenant that all rights under the contract
shall be subject to and controlled by the Colorado River Compact approved by
Section 13(a) of the Boulder Canyon Project Act of December 21, 1928, (45
Stat. 1057) and the parties to the contract shall observe and be subject to
and controlled by said Colorado River Compact in the construction,
management, and operation of the dams, reservoirs, and powerplants from
which electrical energy is to be furnished by Western to the Contractor
under the contract, and in the storage, diversion, delivery, and use of
water for the generation of electrical energy to be delivered by Western to
the Contractor under the contract.
0
V. FACILITIES ES PRDTISICNS .
19. Design Approval.
All facilities, construction, and installation by the Contractor
pursuant to the contract shall be subject to the approval of Western.
Facilities interconnections shall normally conform to Western's current
"General Requirements for Interconnection," in effect upon the signing of
the contract document providing for each interconnection, copies of which
are available from the Contracting Officer. At least ninety (90) days,
unless otherwise agreed, prior to the date the Contractor proposes to
commence construction or to incur an obligation to purchase facilities to be
installed pursuant to the contract, whichever date is the earlier, the
Contractor shall submit, for the approval of western, detailed designs,
drawings, and specifications of the facilities the Contractor proposes to
purchase, construct, and install. The Contractor assumes all risks for
construction ccnTnenced or obligations to purchase facilities incurred prior
to receipt of approval frcr Western. western review and approval of designs
and construction work in no way implies that Western is certifying that the
designs meet the Contractor's needs.
20. Inspection and Acceptance.
Western shall have the right to inspect the materials and work
furnished by the Contractor, its agents, employees, and subcontractors
pursuant to the contract. Such inspections shall be at reasonable times at
the worksite. Any materials or work that the Contracting Officer determines
is defective or not in accordance with designs, drawings, and
specifications, as approved by Western, shall be replaced or modified, as
directed by Western, at the sole expense of the Contractor before the new
facilities are energized.
21. As -Built Drawings.
Within a reasonable time, as determined by the Contracting
Officer, after the completion of construction and installation of facilities
pursuant to the contract, the Contractor shall submit to Western marked
as -built prints of all Western drawings affected by changes made pursuant to
the contract and reproducible drawings the Contractor has prepared showing
facilities of Western. The Contractor's drawings of Western facilities
shall use drawing title blocks, drawing numbers, and shall be prepared in
accordance with drafting standards all as approved by the Contracting
Officer. Western may prepare, revise, or complete said drawings and bill
the Contractor if the Contractor fails to provide such drawings to Western
within a reasonable time as determined by the Contracting Officer.
22. Equipment Ownership Markers.
22.1. The Contractor shall identify all movable equipment and,
to the extent agreed upon by the parties, all other salvageable facilities
constructed or installed on United States right-of-way or in Western
substations pursuant to the contract which are owned by the Contractor, by
permanently affixing thereto suitable markers clearly identifying the
Contractor as the owner of said equipment and facilities.
22.2. If requested by the Contractor, Western shall identify all
movable equipment and, to the extent agreed upon by the parties, all other
salvageable facilities constructed or installed on the Contractor's
right-of-way or in the Contractor's substations pursuant to the contract
which are owned by the United States, by permanently affixing thereto
suitable markers clearly identifying the United States as the owner of said
equipment and facilities.
23. Third -Party Use of Facilities.
The Contractor shall notify Western of any proposed system change
relating to the facilities governed by the contract or allowing third -party
use of the facilities governed by the contract. If Western notifies the
Contractor that said system change will, as solely determined by the
Contracting Officer, adversely affect the operation of Western's system the
Contractor shall, at no cost to Western, provide a solution to said adverse
effect acceptable to Western.
24. Changes to Western Control Facilities.
If at any time during the tern of the contract, the Contracting
Officer determines that changes or additions to control, relay, or
ccnu unications facilities are necessary to maintain the reliability or
control of Western's transmission system, and said changes or additions are
entirely or partially required because of the Contractor's equipment
installed under the contract, such changes or additions shall, after
consultation with the Contractor, be made by Western with all costs or a
proportionate share of all costs, as determined by the Contracting Officer,
to be paid by the Contractor. The Contracting Officer shall notify the
Contractor in writing of the necessary changes or additions and the
estimated costs to be paid by the Contractor. If the Contractor fails to
pay its share of said estimated costs, the Contracting Officer shall have
the right, after giving sixty (60) days' written notice to the Contractor,
to terminate the applicable facility installation provisions of the contract
and require the removal of the Contractor's facilities.
25. Modification of Western Facilities.
Western reserves the right, at any time, to modify its
facilities. Western shall keep the Contractor informed of all planned
modifications to western facilities which impact the facilities installation
pursuant to the contract. Western shall permit the Contractor to change or
modify its facilities, in a manner satisfactory to and at no cost or expense
to Western, to retain the facilities interconnection pursuant to the
contract. At the Contractor's option, Western shall cooperate with the
Contractor in planning alternate arrangements for service which shall be
implemented at no cost or expense to Western. The Contractor and Western
shall modify the contract, as necessary, to conform to the new facilities
arrangements.
10
26. Transmission Rights.
If the contract involves an installation which sectionalizes a
Western transmission line, the Contractor hereby agrees to provide a
transmission path to western across such sectionalizing facilities at no
cost or expense to Western. Said transmission path shall be at least equal,
in terms of capacity and reliability, to the path in the Western
transmission line prior to the installation pursuant to the contract.
27. Construction and Safetv Procedures
* 27.1. The Contractor hereby acknowledges that it is aware of the
hazards inherent in high-voltage electric lines and substations, and hereby
assumes full responsibility at all times for the adoption and use of
necessary safety measures required to prevent accidental harm to personnel
engaged in the construction, inspection, testing, operation, maintenance,
replacement, or removal activities of the Contractor pursuant to the
contract. The Contractor and the authorized employees, agents, and
subcontractors of the Contractor shall comply with all applicable safety
laws and building and construction codes, including the provisions of
Western's current "Power Systems Safety Manual," "Construction, Safety, and
Health Standards," and 'Power System Clearance Procedures" in effect upon
the signing of the contract; Except, That, in lieu of the safety program
required herein, the Contractor may provide sufficient information to
demonstrate that the Contractor's safety program is satisfactory to the
United States.
27.2. The Contractor and its authorized employees, agents, and
subcontractors shall familiarize themselves with the location and character
of all the transmission facilities of Western and interconnections of others
relating to the work performed by the Contractor under the contract. Prior
to starting any construction, installation, or removal work, the Contractor
shall submit a plan of procedure to Western which shall indicate the
sequence and method of performing the work in a safe manner. No work shall
be performed by the Contractor, its employees, agents, or subcontractors
until written authorization to proceed is obtained from the Contracting
Officer.
27.3. At all times when the Contractor, its employees, agents,or
subcontractors are performing activities of any type pursuant to the
contract, such activities shall be under supervision of a qualified
employee, agent, or subcontractor of the Contractor who shall be authorized
to represent the Contractor in all matters pertaining to the activity being
performed. The Contractor and western will keep each other informed of the
names of their designated representatives at the site.
27.4. Upon completion of its work, the Contractor shall remove
from the vicinity of the right-of-way of the United States all buildings,
rubbish, used materials, concrete forms, and other like material belonging
to the Contractor or used under the Contractor's direction, and in the event
of failure to do so the same may be removed by Western at the expense of the
Contractor.
* Revised January 3, 1989.
11
27.5. In the event the Contractor, its employees, agents, or
subcontractors fail to comply with any provision of this article, or Article
20 (Inspection and Acceptance) herein, the Contracting Officer or an
authorized representative may issue an order to stop all or any part of the
work until such time as the Contractor demonstrates ccmpliance with the
provision at issue. The Contractor, its employees, agents, or
subcontractors shall make no claim for ccampensation or damages resulting
from such work stoppage.
* 28. Authorized Representatives of the Parties.
Each party to the contract, by written notice to the other, shall
designate the representative(s) who is (are) authorized to act in its behalf
with respect to those matters contained in the contract which are the
functions and responsibilities of the authorized representatives of the
parties. Each party may change the designation of its authorized
representative(s) upon oral notice given to the other, confirmed promptly by
written notice.
29. Effect of Section Headings.
Section headings or article titles appearing in the contract or
these General Power Contract Provisions are inserted for convenience only
and shall not be construed as interpretations of text.
30. Operating Guidelines and Procedures.
The parties to the contract may agree upon and put into effect
from time to time, such other written guidelines and procedures as may be
required in order to establish the methods of operation of the power system
to be followed in the performance of the contract.
31. Uncontrollable Forces.
Neither party to the contract shall be considered to be in
default in performance of any of its obligations under the contract, except
to make payment as specified in Article 13 (Billing and Payment) herein,
when a failure of performance shall be due to an uncontrollable force. The
tern "uncontrollable force" means any cause beyond the control of the party
affected, including but not restricted to, failure of or threat of failure
of facilities, flood, earthquake, storm, fire, lightning, epidemic, war,
riot, civil disturbance or disobedience, labor dispute, labor or material
shortage, sabotage, restraint by court order or public authority and action
or nonaction by, or failure to obtain the necessary authorizations or
approvals frrm, any governmental agency or authority, which by exercise of
due diligence such party could not reasonably have been expected to avid
and which by exercise of due diligence it shall be unable to overcome:
Nothing contained herein shall be construed to require a party to settle any
* Revised January 3, 1989.
12
strike or labor dispute in which it may be involved. Either party rendered
unable to fulfill any of its obligations under the contract by reason of an
uncontrollable force shall give prompt written notice of such fact to the
other party and shall exercise due diligence to remove such inability with
all reasonable dispatch.
32. Liability.
32.1 The Contractor hereby agrees to indannify and hold harmless
the United States, its employees, agents, or contractors, from any loss or
damage and from any liability on account of personal injury, death, or
property damage, or claims for personal injury, death, or property damage of
any nature whatsoever and by whomsoever made arising out of the
Contractor's, its employees', agents', or subcontractors', construction,
operation, maintenance, or replacement activities under the contract.
32.2 The United States is liable only for negligence on the part
of its officers and employees in accordance with the Federal Tort Claims
Act, as amended.
* 33. Environmental Canpliance.
Facilities installed under the contract by any party shall be
constructed, operated, maintained, replaced, and removed subject to
compliance with laws, executive orders, and regulations applicable to that
party, including the National Environmental Policy Act of 1969, as amended,
36 CFR 800, and the Archeological Resources Protection Act of 1979.
34. Cooperation of Contractinq Parties.
If, in the operation and maintenance of their respective power
systems or electrical equipment and the utilization thereof for the purposes
of the contract, it becomes necessary by reason of any emergency or
extraordinary condition for either party to request the other to furnish
personnel, materials, tools, and equipment for the accomplishment thereof,
the party so requested shall cooperate with the other and render such
assistance as the party so requested may determine to be available. The
party making such request, upon receipt of properly itemized bills frau the
other party, shall reimburse the party rendering such assistance for all
costs properly and reasonably incurred by it in such performance, including
administrative and general expenses, such costs to be determined on the
basis of current charges or rates used in its own operations by the party
rendering assistance. Issuance and payment of bills for services provided
by western shall be in accordance with Articles 13 (Billing and Payment) and
14 (Nonpayment of Bills in Full When Due) herein. western shall pay bills
issued by the Contractor for services provided as soon as the necessary
vouchers can be prepared which shall normally be within twenty (20) days.
* Revised January 3, 1989.
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35. Transfer of Interest in Contract by Contractor.
No voluntary transfer of the contract or of the rights of the
Contractor under the contract shall be made without the written approval of
the Administrator of Western; Provided, That if the Contractor operates a
project financed in whole or in part by the Rural Electrification
Administration, the Contractor may transfer or assign its interest in the
contract to the Rural Electrification Administration or any other department
or agency of the Federal Government without such written approval; Provided
further, That any successor to or assignee of the rights of the Contractor,
whether by voluntary transfer, judicial sale, foreclosure sale, or
otherwise, shall be subject to all the provisions and conditions of the
contract to the same extent as though such successor or assignee were the
original Contractor under the contract; and, Provided further, That the
execution of a mortgage or trust deed, or judicial or foreclosure sales made
thereunder, shall not be deemed voluntary transfers within the meaning of
this article.
36. Waivers.
Any waivers at any time by either party to the contract of its
rights with respect to a default or any other matter arising under or in
connection with the contract shall not be deemed a waiver with respect to
any subsequent default or matter.
37. Notices.
Any notice, demand, or request required by the contract or the
provisions of these articles to be in writing shall be considered properly
given when delivered in person, or sent by either registered or certified
mail, postage prepaid, or prepaid telegram addressed to each party's
authorized representative at the principal offices of the party. The
designation of the person to be notified may be changed at any time by
similar notice.
38. Contincient Upon Appropriations.
Where activities provided for in the contract extend beyond the
current fiscal year, continued expenditures by the United States are
contingent upon Congress making the necessary appropriations required for
the continued performance of the United States obligations under the
contract. In case such appropriation is not made, the Contractor hereby
releases the United States from its contractual obligations and frau all
liability due to the failure of Congress to make such appropriation.
39. Officials Not to Benefit.
No member of or delegate to Congress or Resident Commissioner
shall be admitted to any share or part of the contract or to any benefit
that may have arisen from the contract, but this restriction shall not be
construed to extend to the contract if made with a corporation or cc mpany
for its general benefit.
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40. Covenant Against Continoxent Fees.
The Contractor warrants that no person or selling agency has been
employed or retained to solicit or secure the contract upon an agreement or
understanding for a cccmtission, percentage, brokerage, or contingent fee,
excepting bona fide employees or bona fide established commercial or selling
agencies maintained by the Contractor for the purpose of securing business.
For breach or violation of this warranty, Western shall have the right to
annul the contract without liability or in its discretion to deduct from the
contract price or consideration the full amount of such commission,
percentage, brokerage, or contingent fee.
* 41. Contract Work Hours and Safety Standards.
The contract, to the extent that it is of a character specified
in Section 103 of the Contract Work Hours and Safety Standards Act (Act),
40 U.S.C.A. {329 (1986), is subject to the provisions of the Act, 40
U.S.C.A. {{327-333 (1986), and to regulations promulgated by the Secretary
of Labor pursuant to the Act.
* 42. Equal Opportunity Employment Practices.
Section 202 of Executive order No. 11246, 43 Fed. Reg. 46501
(1978), which provides, among other things, that the Contractor will not
discriminate against any employee or applicant for employment because of
race, color, religion, sex, or national origin, is incorporated by reference
in the contract.
43. Use of Convict Labor.
The Contractor agrees not to employ any person undergoing
sentence of imprisonment in performing the contract except as provided by 18
U.S.C. 4082(c)(2) and Executive order 11755, December 29, 1973.
* Revised ;,anuary 3, 1989.
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