HomeMy WebLinkAboutAgenda Report - September 15, 2021 C-10AGENDA ITEM CON/0
a CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Third Phase Agreement
with Northern California Power Agency for Power Purchase Agreement with South
Feather Water and Power Agency
MEETING DATE: September 15, 2021
PREPARED BY: Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Manager to execute a Third
Phase Agreement with the Northern California Power Agency
(NCPA) for a Power Purchase Agreement (PPA) with the South
Feather Water and Power Agency (SFWPA).
BACKGROUND INFORMATION: Renewables Portfolio Standard (RPS) requirements necessitate
60 percent of the City's retail energy sales be supplied by renewable
energy by the end of 2030.
LED's existing generation resources, including the Astoria 2 Project which reached commercial operation
in 2016 and the Antelope 1 B Solar Project which will reach commercial operation in 2021, will enable the
City to meet current RPS requirements through at least 2024. However, Lodi will need to procure
additional renewable energy in order to meet the 60 percent requirement by 2030. Lodi is currently
negotiating final terms and conditions associated with an additional solar energy project but has just
recently completed efforts on the project described herein.
Located in Butte County, SFWPA owns and operates multiple hydroelectric generating plants. Through
negotiations with NCPA on behalf of Lodi and other members, SFWPA has agreed to sell the total energy
output from four plants including: the Forbestown Powerhouse (37.5 MW), the Kelly Ridge Powerhouse
(11.0 MW), the Sly Creek Powerhouse (13.0 MW) and the Woodleaf Powerhouse (60.0 MW).
Negotiations on the terms and conditions associated with a PPA with SFWPA are now complete.
The preliminary share of facility output for each of the NCPA participant members is provided below:
Healdsburg
2.0 MW
1.65%
Lodi
10.0 MW
8.23%
Lompoc
2.5 MW
2.06%
Roseville
20.0 MW
16.46%
Silicon Valley Power
78.0 MW
64.20%
Ukiah
2.0 MW
1.65%
Port of Oakland
3.0 MW
2.47%
BART
4.0 MW
3.29%
Under the terms of the PPA, NCPA will purchase, on behalf of the participants noted above, the electrical
energy output, capacity attributes, renewable energy credits, and all other environmental attributes
associated with the hydroelectric generating plants from SFWPA. Delivery under the terms of the PPA is
APPROVED: ` i
Stephen Schwa6guer, City Manager
Adopt Resolution Authorizing City Manager to Execute Third Phase Agreement with Northern California Power Agency for
Power Purchase Agreement with South Feather Water and Power Agency
September 15, 2021
Page 2 of 2
scheduled to start December 2021 for a contract term of 20 years. Two of SFWPA's hydroelectric plants
under this PPA (approximately 20 percent of the total capacity) is guaranteed to qualify as Portfolio
Content Category 1 under RPS guidelines with the remaining plant output adding to Lodi's carbon -free
resources. Lodi's contracted share of 10 MW will provide hydroelectric energy to meet about seven
percent of Lodi's retail load.
The energy price is fixed for the 20 -year fife of the contract. During each calendar year, an energy price
of $35.00/MWh will be paid for a base amount of energy delivered, and an energy price of $33.98/MWh
will be paid for any amount of energy that is generated in excess of the base amount each calendar year.
In addition, the capacity available through the PPA will be used to meet Lodi's Resource Adequacy
obligation at a cost of $6.25/kw-month. Lodi will not have an ownership interest in these hydroelectric
generating plants and will not incur any capital expenditures. In an average water year, the total annual
cost of energy, capacity and renewable credits will be approximately $1,798,000 per year for
approximately 31,000 MWh annually.
Pursuant to the NCPA project development process, as described in the NCPA Amended and Restated
Facilities Agreement, in order for NCPA to move forward on behalf of members, a Third Phase
Agreement is needed to enable NCPA to enter into the PPA with SFWPA on behalf of the participants.
On August 24, 2021, the Risk Oversight Committee received a report on the SFWPA Project and
recommended approval of the Third Phase Agreement with NCPA. This additional resource combined
with final efforts on a separate project scheduled to come before Council by the end of the year will help
ensure Lodi's RPS compliance through 2025.
FISCAL IMPACT: Cost associated with the SFWPA PPA and subsequent Third Phase
Agreement are estimated at approximately $1,798,000 per year based on
average water year conditions. Market power purchase costs will be
reduced based on the current energy market price and the output received
from the SFWPA facilities.
FUNDING AVAILABLE: The SFPWA hydro energy will be funded by Greenhouse Gas Fund
Revenue (Fund 508) and/or Electric Utility Operating Funds (Fund 500) and
will be appropriated as part of the annual budget process for power supply
costs.
Andrew Keys
Andrew Keys
Deputy City Managerlinternal Services Director
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.Ir{! c4hromurftirp2,:ll:.'111:28Paij
Jeff Berkheimer
Electric Utility Director
Signature: QOAmw xw�p
Email: akeys@lodi.gov
THIRD PHASE AGREEMENT
FOR
POWER PURCHASE AGREEMENT
WITH
SOUTH FEATHER WATER AND POWER AGENCY
TABLE OF CONTENTS
Section1. Definitions................................................................................................ 5
Section2. Purpose....................................................................................................13
Section 3. Sale and Purchase of Product................................................................13
Section 4. Billing and Payments.............................................................................14
Section 5. Security Deposit Administration..........................................................17
Section 6.
Cooperation and Further Assurances...................................................22
Section 7.
Participant Covenants and Defaults.....................................................22
Section 8.
Administration of Agreement...............................................................26
Section 9.
Transfer of Rights by Participants.........................................................27
Section 10.
Term and Termination...........................................................................28
Section 11.
Withdrawal of Participants....................................................................28
Section 12.
Settlement of Disputes and Arbitration................................................28
Section 13.
Miscellaneous..........................................................................................29
EXHIBIT A. Project Participation Percenages...............................................40
EXHIBITB. PPA....................................................................................43
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
This THIRD PHASE AGREEMENT ("this Agreement") is dated as of
20_ by and among the Northern California Power Agency, a joint
powers agency of the State of California ("NCPA"), and the signatories to this Agreement
other than NCPA ("Participants"). NCPA and the Participants are referred to herein
individually as a "Party" and collectively as the "Parties".
RECITALS
A. NCPA has heretofore been duly established as a public agency pursuant to
the Joint Exercise of Powers Act of the Government Code of the State of California and,
among other things, is authorized to acquire, construct, finance, and operate buildings,
works, facilities, and improvements for the generation and transmission of electric
capacity and energy for resale.
B. Each of the Participants is a signatory to the Joint Powers Agreement which
created NCPA and therefore is a Member.
C. Each of the Participants to this Agreement have executed the Amended and
Restated Facilities Agreement, dated October 1, 2014, which establishes the framework
under which Project Agreements are created for the development, design, financing,
construction, and operation of specific NCPA Projects.
D. The Participants desire NCPA to enter into a Power Purchase Agreement
("PPA") with South Feather Water and Power Agency ("SFWPA" or "Seller"), to purchase
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
electric capacity and energy produced by the Project for the benefit of the Participants'
customers.
E. Each Participant is authorized by its Constitutive Documents to obtain
electric capacity and energy for its present or future requirements, through contracts with
NCPA or otherwise.
F. To enable NCPA to enter into the PPA on behalf of the Participants, pursuant
to the terms and conditions of the Amended and Restated Facilities Agreement, NCPA
and the Participants wish to enter into this Agreement to provide all means necessary for
NCPA to fulfill obligations incurred on behalf of NCPA and the Participants pursuant to
the PPA, and to enable and obligate the Participants to take delivery of and pay for such
electric capacity and energy and to pay NCPA for all costs it incurs for undertaking the
foregoing activities.
G. Upon full execution of this Agreement, NCPA will enter into the PPA on
behalf of the Participants, and such PPA shall be deemed a NCPA Project by the
Commission.
H. Each of the Parties intends to observe the provisions of this Agreement in
good faith and shall cooperate with all other Parties in order to achieve the full benefits of
joint action.
I. The Parties desire to equitably allocate costs of NCPA's provision of services
under this Agreement among the Participants.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
J. The Participants further desire, insofar as possible, to insulate other
Members who are not Participants, from risks inherent in the services and transactions
undertaken on behalf of the Participants pursuant to this Agreement.
NOW, THEREFORE, the Parties agree as follows:
Section 1. Definitions.
1.1 Definitions. Whenever used in this Agreement (including the Recitals
hereto), the following terms shall have the following respective meanings, provided,
capitalized terms used in this Agreement (including the Recitals hereto) that are not
defined in Section 1 of this Agreement shall have the meaning indicated in Section 1 of the
Power Management and Administrative Services Agreement, dated October 1, 2014:
1.1.1 "Administrative Services Costs" means that portion of the NCPA
administrative, general and occupancy costs and expenses, including those costs and
expenses associated with the operations, direction and supervision of the general
affairs and activities of NCPA, general management, treasury operations, accounting,
budgeting, payroll, human resources, information technology, facilities management,
salaries and wages (including retirement benefits) of employees, facility operation and
maintenance costs, taxes and payments in lieu of taxes (if any), insurance premiums,
fees for legal, engineering, financial and other services, power management services,
general settlement and billing services and general risk management costs, that are
charged directly or apportioned to the provision of services under this Agreement.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
Administrative Services Costs as separately defined herein and used in the context of
this Agreement is different and distinct from the term Administrative Services Costs as
defined in Section 1 of the Power Management and Administrative Services
Agreement.
1.1.2 "Agreement" means this Third Phase Agreement, including all
Exhibits attached hereto.
1.1.3 "CAISO" means the California Independent System Operator
Corporation, or its functional successor.
1.1.4 "CAISO Tariff" means the duly authorized tariff, rules, protocols
and other requirements of the ISO, as amended from time to time.
1.1.5 "Capacity Attributes" means any and all current or future defined
characteristics consistent with the operational limitations of the Project, certificates,
tags, credits, ancillary service attributes, or accounting constructs, howsoever entitled,
including Resource Adequacy Benefits, Flexible Capacity Benefits, and any tracking or
accounting associated with the foregoing, intended to value any aspect of the capacity
of the Project to produce Energy or ancillary services, attributed to or associated with
the Project.
1.1.6 "Constitutive Documents" means, with respect to NCPA, the Joint
Powers Agreement and any resolutions or bylaws adopted thereunder with respect to
the governance of NCPA, and with respect to each Participant, the California
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
Government Code and other statutory provisions applicable to such Participant, any
applicable agreements, charters, contracts, or other documents concerning the
formation, operation or decision making of such Participant, including, if applicable, its
city charter, and any codes, ordinances, bylaws, and resolutions adopted by such
Participant's governing body.
MWh.
1.1.7 "Defaulting Participant" has the meaning set forth in Section 7.2.
1.1.8 "Energy" means electric energy expressed in units of kWh or
1.1.9 "Environmental Attributes" means any and all credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, attributable to the
generation from the Project, as the case may be, and its displacement of conventional
energy generation. Environmental Attributes include: (i) any avoided emissions of
pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx),
carbon monoxide (CO) and other pollutants; (ii) any avoided emissions of carbon
dioxide (CO2), methane (CH4) and other greenhouse gases that have been determined
by the United Nations Intergovernmental Panel on Climate Change to contribute to the
actual or potential threat of altering the Earth's climate by trapping heat in the
atmosphere; and (iii) the reporting rights to these avoided emissions such as, but not
limited to, a REC.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
Environmental Attributes do not include: (i) any Energy, capacity,
reliability, or other power attributes from the Project; (ii) production tax credits
associated with the construction or operation of the Project, and other financial
incentives in the form of credits, reductions, or allowances associated with the Project
that are applicable to a state or federal income taxation obligation (iii) fuel -related
subsidies or "tipping fees" that may be paid to Seller to accept certain fuels, or local
subsidies received by Seller or the owners of the site for the destruction of particular
pre-existing pollutants or the promotion of local environmental benefits; or (iv)
emission reduction credits encumbered or used by the Project for compliance with
local, state, or federal operating and/or air quality permits.
1.1.10 "Event of Default" has the meaning set forth in Section 7.2.
1.1.11 "Flexible Capacity" has the meaning set forth in the CAISO Tariff.
1.1.12 "Flexible Capacity Benefits" means the rights and privileges
attached to any generating resource that satisfy any entity's Flexible Capacity
requirement.
1.1.13 "General Operating Reserve" means the NCPA General Operating
Reserve created through resolution of the Commission, as the same may be amended
from time to time.
1.1.14 "KWh" means kilowatt hour.
1.1.15 "MW" means megawatt.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
Agreement.
1.1.16 "MWh" means megawatt hour.
1.1.17 "NCPA" has the meaning set forth in the recitals hereto.
1.1.18 "Participant" has the meaning set forth in the recitals of this
1.1.19 "Power Management and Administrative Services Agreement"
means the NCPA Power Management and Administrative Services Agreement, dated
as of October 1, 2014 between NCPA and the Members who are signatories to that
agreement by which NCPA provides Power Management and Administrative Services.
1.1.20 "Product" means Energy, Capacity Attributes, Environmental
Attributes and ancillary products, services or attributes similar to the foregoing that are
delivered to the Participants pursuant to the PPA.
1.1.21 "Project" or "PPA" means the Power Purchase Agreement, dated
as of 20, between NCPA and Seller, under which NCPA, on behalf of
the Participants, purchases Product from the South Feather Power Project located in
Butte County, California, consisting of four existing hydroelectric generating plants
under FERC licenses: the Forbestown Powerhouse, the Kelly Ridge Powerhouse, the
Sly Creek Powerhouse, and the Woodleaf Powerhouse. Upon final execution of the
PPA, the Project shall be deemed a NCPA Project in accordance with the Amended and
Restated Facilities Agreement. The PPA has been attached to this Agreement as
Exhibit B.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
1.1.22 "Project Costs" means all costs charged to and paid by NCPA
pursuant to the PPA.
1.1.23 "Party" or "Parties" has the meaning set forth in the preamble
hereto; provided that "Third Parties" are entities that are not Party to this Agreement.
1.1.24 "REC" or "Renewable Energy Certificate" means a certificate of
renewable energy generation from units that register in the WREGIS system, or other
commonly accepted renewable energy generation tracking system or program, which
can be used to verify compliance with state and provincial requirements such as RPS.
1.1.25 "Resource Adequacy" means the procurement obligation of load
serving entities, including the Participants, as such obligations are described in CPUC
Decisions D.04-10-035 and D.05-10-042, and subsequent CPUC decisions addressing
Resource Adequacy issues, as those obligations may be altered from time to time in the
CPUC Resource Adequacy Rulemakings (R.) 04-04-003 and (R.) 05-12-013 or by any
successor proceeding, and all other Resource Adequacy obligations established by any
other entity, including the CAISO.
1.1.26 "Resource Adequacy Benefits" means the rights and privileges
attached to any generating resource that satisfy any entity's Resource Adequacy
obligations.
1.1.27 "Revenue" means, with respect to each Participant, all income,
rents, rates, fees, charges, and other moneys derived by the Participant from the
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
ownership or operation of its Electric System, including, without limiting the generality
of the foregoing: (a) all income, rents, rates, fees, charges or other moneys derived from
the sale, furnishing and supplying of electric capacity and energy and other services,
facilities, and commodities sold, furnished, or supplied through the facilities of its
Electric System; (b) the earnings on and income derived from the investment of such
income, rents, rates, fees, charges or other moneys to the extent that the use of such
earnings and income is limited by or pursuant to law to its Electric System; (c) the
proceeds derived by the Participant directly or indirectly from the sale, lease or other
disposition of all or a part of the Electric System; and (d) the proceeds derived by
Participant directly or indirectly from the consignment and sale of freely allocated
greenhouse gas compliance instruments into periodic auctions administered by the
State of California under the California Cap -and -Trade Program, provided that such
proceeds are a permitted use of auction proceeds, but the term Revenues shall not
include (i) customers' deposits or any other deposits subject to refund until such
deposits have become the property of the Participant or (ii) contributions from
customers for the payment of costs of construction of facilities to serve them.
1.1.28 "RPS" or "Renewable Portfolio Standard Program" means the
State of California Renewable Portfolio Standard Program, as codified at California
Public Utilities Code Section 399.11, et seq.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
1.1.29 "Scheduling Protocols" means the applicable provisions of the
Amended and Restated Scheduling Coordination Program Agreement, and any other
contractual or other arrangements between NCPA and the Participants concerning the
scheduling, delivery and metering of the PPA.
1.1.30 "Security Deposit" means the account established by NCPA and
funded by the Participants in accordance with Section 5, the funds of which are
available for use by NCPA in accordance with the terms and conditions hereof.
1.1.31 "Seller" means South Feather Water and Power Agency, as set
forth in recital D of this Agreement, or as otherwise set forth in the PPA.
1.1.32 "Term" has the meaning set forth in Section 10.
1.1.33 "Third Party" means an entity (including a Member) that is not
Party to this Agreement
1. 1.34 "WREGIS" means Western Renewable Energy Generation
Information System, or its functional successor.
1.2 Rules of Interpretation. As used in this Agreement (including the Recitals
hereto), unless in any such case the context requires otherwise: The terms "herein,"
"hereto," "herewith" and "hereof" are references to this Agreement taken as a whole and
not to any particular provision; the term "include," "includes" or "including" shall mean
"including, for example and without limitation;" and references to a "Section,"
"subsection," "clause," "Appendix", "Schedule", or "Exhibit" shall mean a Section,
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
subsection, clause, Appendix, Schedule or Exhibit of this Agreement, as the case may be.
All references to a given agreement, instrument, tariff or other document, or law,
regulation or ordinance shall be a reference to that agreement, instrument, tariff or other
document, or law, regulation or ordinance as such now exists and as may be amended
from time to time, or its successor. A reference to a "person" includes any individual,
partnership, firm, company, corporation, joint venture, trust, association, organization or
other entity, in each case whether or not having a separate legal personality and includes
its successors and permitted assigns. A reference to a "day" shall mean a Calendar Day
unless otherwise specified. The singular shall include the plural and the masculine shall
include the feminine, and vice versa.
Section 2. Purpose. The purpose of this Agreement is to: (i) set forth the terms and
conditions under which NCPA shall enter into the PPA on behalf of the Participants, (ii)
authorize NCPA, acting on behalf of the Participants, to engage in all activities related to
that basic purpose, and (iii) specify the rights and obligations of NCPA and the
Participants with respect to the PPA.
Section 3. Sale and Purchase of Product. By executing this Agreement, each
Participant acknowledges and agrees to be bound by the terms and conditions of the
Agreement, and that the Agreement is written as a "take -or -pay" agreement. Any Product
delivered to NCPA under the PPA shall be delivered to each Participant in proportion to
such Participant's Project Participation Percentage as set forth in Exhibit A, and each
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
Participant shall accept and pay for its respective percentage of such Product. To the
extent a Participant is unable to accept such deliveries in full, NCPA shall dispose of such
surplus in its sole discretion, in such a manner to attempt to maximize Participant value
and that Participant shall reimburse to NCPA any costs incurred by NCPA in doing so.
Notwithstanding the above, NCPA may allocate Product procured through the PPA
among the Participants in such percentages as NCPA may, in its reasonable discretion,
determine are necessary, desirable, or appropriate, in order to accommodate Participant
transfer rights pursuant to Section 9.
3.1 Scheduling. Product delivered from Seller shall be scheduled for and to the
Participants in accordance with Scheduling Protocols, and the terms and conditions of the
Section 4. Billing and Pa ments
4.1 Participant Pa eiit Obligations. Each Participant agrees to pay to NCPA
each month its respective portion of the Project Costs, Administrative Services Costs,
scheduling coordination costs, and all other costs for services provided in accordance with
this Agreement and the Amended and Restated Facilities Agreement. In addition to the
aforementioned monthly payment obligations, each Participant is obligated to fund: (i)
any and all required Security Deposits calculated in accordance with Section 5, and (ii) any
working capital requirements for the Project maintained by NCPA as determined,
collected and set forth in the Annual Budget.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
4.2 Invoices. NCPA will issue an invoice to each Participant for its share of
Project Costs, Administrative Services Costs, scheduling coordination costs, and all other
costs for services provided in accordance with this Agreement and the Amended and
Restated Facilities Agreement. Such invoice may be either the All Resources Bill or
separate special invoice, as determined by NCPA. At NCPA's discretion, invoices may be
issued to Participants using electronic media or physical distribution.
4.3 Payment of Invoices. All invoices delivered by NCPA (including the All
Resources Bill) are due and payable thirty (30) Calendar Days after the date thereof;
provided, however, that any amount due on a day other than a Business Day may be paid
on the following Business Day.
4.4 Late Payments. Any amount due and not paid by a Participant in accordance
with Section 4.3 shall be considered late and bear interest computed on a daily basis until
paid at the lesser of (i) the per annum prime rate (or reference rate) of the Bank of America
NT&SA then in effect, plus two percent (2%) or (ii) the maximum rate permitted by law.
4.5 Billing Disputes. A Participant may dispute the accuracy of any invoice
issued by NCPA under this Agreement by submitting a written dispute to NCPA, within
thirty (30) Calendar Days after the date of such invoice; nonetheless the Participant shall
pay the full amount billed when due. If a Participant does not timely question or dispute
the accuracy of any invoice in writing, then the invoice shall be deemed to be correct.
Upon review of a submitted dispute, if an invoice is determined by NCPA to be incorrect,
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
then NCPA shall issue a corrected invoice and refund any amounts that may be due to the
Participant. If NCPA and the Participant fail to agree on the accuracy of an invoice within
thirty (30) Calendar Days after the Participant has disputed it, then the General Manager
shall promptly submit the dispute to the Commission for resolution. If the Commission
and the Participant fail to agree on the accuracy of a disputed invoice within sixty (60)
Calendar Days after its submission to the Commission, then the dispute may then be
resolved under the mediation and arbitration procedures set forth in Section 12 of this
Agreement; provided, however, that prior to resorting to either mediation or arbitration
proceedings, the full amount of the disputed invoice must be paid by the Participant.
4.6 BillingLSettlement Data and Examination of Books and Records.
4.6.1 Settlement Data. NCPA shall make billing and settlement data
available to the Participants in the All Resources Bill, or other invoice, or upon request.
NCPA may also, at its sole discretion, make billing and settlement support information
available to Participants using electronic media (e.g. electronic data portal).
Procedures and formats for the provision of such electronic data submission may be
established by the Commission from time to time. Without limiting the generality of
the foregoing, NCPA may, in its reasonable discretion, require the Participants to
execute a non -disclosure agreement prior to providing access to the NCPA electronic
data portal.
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
4.6.2 Examination of Books and Records. Any Participant to this
Agreement shall have the right to examine the books and records created and
maintained by NCPA pursuant to this Agreement at any reasonable, mutually agreed
upon time.
Section 5. Security De osit Administration
5.1 Security Deposit Requirements. Each Participant agrees that any funds
deposited at NCPA to satisfy Participant's Security Deposit requirements pursuant to this
Agreement shall be irrevocably committed and held by NCPA in the General Operating
Reserve, and that such funds may be used by NCPA in accordance with Section 5.1.3.
Each Participant's Security Deposit will be accounted separately from and in addition to
any other security accounts or deposits maintained pursuant to any other agreement
between NCPA and the Participant, or any other such security account or deposits
required of Members. In connection with fulfilling the Security Deposit requirements of
this Agreement, Participant may elect to use its uncommitted funds held in the General
Operating Reserve to satisfy in whole or in part its Security Deposit required under
Section 5. If Participant chooses to satisfy in whole or in part its security requirements
using its uncommitted funds held in the General Operating Reserve, then Participant is
required to execute and deliver to NCPA an Irrevocable Letter of Direction, directing
NCPA to utilize Participant's uncommitted General Operating Reserve funds for such
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
purposes, and the designated funds will thereafter be irrevocably committed and held by
NCPA to satisfy the requirements of this Agreement.
5.1.1 Initial Amounts. Each Participant shall insure that sufficient
Security Deposit funds have been deposited with and are held by NCPA equal to the
highest three (3) months of estimated Project Costs, as estimated by NCPA. Such
Security Deposit requirement may be satisfied by Participant in whole or part either in
cash, through irrevocable commitment of its uncommitted funds held in the General
Operating Reserve in accordance with Section 5.1, or through a clean, irrevocable letter
of credit satisfactory to NCPA's General Manager.
5.1.2 Subsequent Deposits. Periodically, and at least quarterly, NCPA
shall review and revise its estimate of Project Costs for which Participant shall be
obligated to pay under this Agreement. Following such review, NCPA shall determine
whether each Participant has a sufficient Security Deposit balance at NCPA. To the
extent that any Participant's Security Deposit balance is greater than one hundred and
ten percent (110%) of the amount required herein, NCPA shall credit such amount as
soon as practicable to the Participant's next following All Resources Bill, or by separate
special invoice. To the extent that any Participant's Security Deposit balance is less
than ninety percent (90%) of the amount required herein, NCPA shall add such amount
as soon as practicable to such Participant's next All Resources Bill, or as necessary, to a
special invoice to be paid by Participant upon receipt. Credits or additions shall not be
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
made to Participants who satisfy these Security Deposit requirements in whole through
the use of a letter of credit; provided, that the amount of the letter of credit shall be
adjusted, as required from time to time, in a like manner to assure an amount equal to
the highest three (3) months of estimated Project Costs is available to NCPA.
5.1.3 Use of Security Deposit Funds. NCPA may use any and all
Security Deposit funds held by NCPA (or utilize a letter of credit provided in lieu
thereof) to pay any costs it incurs hereunder, including making payments to Seller,
without regard to any individual Participant's Security Deposit balance or
proportionate share of Project Costs, and irrespective of whether NCPA has issued an
All Resources Bill or special invoice for such costs to the Participants or whether a
Participant has made timely payments of All Resources Bills or special invoices.
Should Participant have satisfied its Security Deposit requirements in whole or part
through a letter of credit, NCPA may draw on such letter of credit to satisfy
Participant's obligations hereunder at NCPA's sole discretion. Notwithstanding the
foregoing, if any Participant fails to pay any costs incurred by NCPA pursuant to this
Agreement, NCPA shall first use that non-paying Participant's Security Deposit and
shall not use any other Participants' Security Deposit until such non-paying
Participant's Security Deposit has been exhausted.
5.1.4 Accounting. If Security Deposit funds or a letter of credit are used
by NCPA to pay any costs it incurs hereunder as described in Section 5.1.3, then NCPA
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THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
will maintain a detailed accounting of each Participant's shares of funds withdrawn,
and upon the collection of all or a part of such withdrawn funds, NCPA will credit
back to each non -defaulting Participant the funds collected in proportion to such non -
defaulting Participant's share of funds initially withdrawn.
5.1.5 Emergency Additions. In the event that funds are withdrawn
pursuant to Section 5.1.3, or if the Security Deposit held by NCPA is otherwise
insufficient to allow for NCPA to pay any invoice, demand, request for further
assurances by Seller, or claims, NCPA shall notify all Participants of the deficiency. In
conjunction with such notice, NCPA shall send a special or emergency assessment
invoice to the Participant or Participants that caused or are otherwise responsible for
the deficiency. Each Participant of such an invoice shall pay to NCPA such assessment
when and if assessed by NCPA within two (2) Business Days of the invoice date of the
assessment, or shall consent to and direct NCPA to draw on any existing letter of credit
Participant has established for such purposes. In the event that the Participant or
Participants that caused or are otherwise responsible for the deficiency cannot, does
not or will not pay to NCPA the special or emergency assessment within two (2)
Business Days after the invoice date, NCPA shall immediately submit a special or
emergency invoice to all remaining Participants, and such remaining Participants shall
pay to NCPA such assessment within two (2) Business Days after the invoice date of
20
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
the assessment, or shall consent to and direct NCPA to draw on any existing letter of
credit that Participant has established for such purposes.
5.1.6 Security Deposit Interest. NCPA shall maintain a detailed
accounting of each Participant's Security Deposits, and withdrawals of such funds,
held by NCPA. Security Deposits held by NCPA shall be invested by NCPA in
accordance with the General Operating Reserve policies and investment policies
adopted by the NCPA Commission. Interest earned on the Security Deposit funds
shall be proportionately credited to the Participants in accordance with their weighted
average balances held therein. Any Security Deposit losses caused by early
termination of investments shall be allocated among the Participants in accordance
with the General Operating Reserve provisions and guidelines approved by the
Commission, as the same may be amended from time to time; provided, however, to
the extent that either the General Operating Reserve provisions and guidelines do not
apply or the Security Deposit is not adequate to cover the losses, then such losses shall
be allocated among the Participants in accordance with their proportionate Security
Deposit balances.
5.1.7 Return of Funds. Upon termination or a permitted withdrawal of
a Participant in accordance with this Agreement, the affected Participant may apply to
NCPA for the return of their share of Security Deposit funds ninety (90) days after the
effective date of such termination or withdrawal. However, NCPA shall, in its sole but
21
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
reasonable discretion, as determined by the NCPA General Manager, estimate the then
outstanding liabilities of the Participant, including any estimated contingent liabilities
and shall retain all such funds, if any, until all such liabilities have been fully paid or
otherwise satisfied in full. After all such liabilities have been satisfied in full, as
determined by NCPA's General Manager, any remaining balance of the Participant's
share of the Security Deposit will be refunded to the Participant within sixty (60) days
thereafter.
Section 6. Cooperation and Further Assurances. Each of the Parties agree to provide
such information, execute and deliver any instruments and documents and to take such
other actions as may be necessary or reasonably requested by any other Party which are
consistent with the provisions of this Agreement and which do not involve the assumption
of obligations other than those provided for in this Agreement, in order to give full effect
to this Agreement and to carry out the intent of this Agreement. The Parties agree to
cooperate and act in good faith in connection with obtaining any credit support required
in order to satisfy the requirements of this Agreement.
Section 7. Participant Covenants and Defaults
7.1 Each Participant covenants and agrees: (i) to make payments to NCPA, from
its Electric System Revenues, of its obligations under this Agreement as an operating
expense of its Electric System; (ii) to fix the rates and charges for services provided by its
Electric System, so that it will at all times have sufficient Revenues to meet the obligations
22
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
of this Agreement, including the payment obligations; (iii) to make all such payments due
NCPA under this Agreement whether or not there is an interruption in, interference with,
or reduction or suspension of services provided under this Agreement, such payments not
being subject to any reduction, whether by offset or otherwise, and regardless of whether
any reasonable dispute exists; and (iv) to operate its Electric System, and the business in
connection therewith, in accordance with Good Utility Practices.
7.2 Events of Default. An Event of Default under this Agreement shall exist
upon the occurrence of any one or more of the following by a Participant (the "Defaulting
Participant"):
due;
(i) the failure of any Participant to make any payment in full to NCPA when
(ii) the failure of a Participant to perform any covenant or obligation of this
Agreement where such failure is not cured within thirty (30) Calendar Days following
receipt of a notice from NCPA demanding cure; provided, that this subsection shall not
apply to any failure to make payments specified by subsection 7.2 (i));
(iii) if any representation or warranty of a Participant material to the services
provided hereunder shall prove to have been incorrect in any material respect when made
and the Participant does not cure the facts underlying such incorrect representation or
warranty so that the representation or warranty becomes true and correct within thirty
(30) Calendar Days after the date of receipt of notice from NCPA demanding cure; or
23
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
(iv) if a Participant is in default or in breach of any of its covenants or
obligations under any other agreement with NCPA and such default or breach is not cured
within the time periods specified in such agreement.
7.3 Uncontrollable Forces. A Party shall not be considered to be in default in
respect of any obligation hereunder if prevented from fulfilling such obligation by reason
of Uncontrollable Forces; provided, that in order to be relieved of an Event of Default due
to Uncontrollable Forces, a Party affected by an Uncontrollable Force shall:
(i) first provide oral notice to the General Manager using telephone
communication within two (2) Business Days after the onset of the Uncontrollable Force,
and provide subsequent written notice to the General Manager and all other Parties within
ten (10) Business Days after the onset of the Uncontrollable Force, describing its nature
and extent, the obligations which the Party is unable to fulfill, the anticipated duration of
the Uncontrollable Force, and the actions which the Party will undertake so as to remove
such disability and be able to fulfill its obligations hereunder; and
(ii) use due diligence to place itself in a position to fulfill its obligations
hereunder and if unable to fulfill any obligation by reason of an Uncontrollable Force such
Party shall exercise due diligence to remove such disability with reasonable dispatch;
provided, that nothing in this subsection shall require a Party to settle or compromise a
labor dispute.
24
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
7.4 Cure of an Event of Default. An Event of Default shall be deemed cured only
if such default shall be remedied or cured within the time periods specified in Section 7.2
above, as may be applicable, provided, however, upon request of the Defaulting
Participant the Commission may waive the default at its sole discretion, where such
waiver shall not be unreasonably withheld.
7.5 Remedies in the Event of Uncured Default. Upon the occurrence of an Event
of Default which is not cured within the time limits specified in Section 7.2, without
limiting other rights or remedies available under this Agreement, at law or in equity, and
without constituting or resulting in a waiver, release or estoppel of any right, action or
cause of action NCPA may have against the Defaulting Participant, NCPA may take any
or all of the following actions:
(i) suspend the provision of services under this Agreement to such
Defaulting Participant; or
(ii) demand that the Defaulting Participant provide further assurances to
guarantee the correction of the default, including the collection of a surcharge or increase
in electric rates, or such other actions as may be necessary to produce necessary Revenues
to correct the default.
7.6 Effect of Suspension.
7.6.1 Generally. The suspension of this Agreement will not terminate,
waive, or otherwise discharge any ongoing or undischarged liabilities, credits or
25
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
obligations arising from this Agreement until such liabilities, credits or obligations are
satisfied in full.
7.6.2 Suspension. If performance of all or any portion of this Agreement
is suspended by NCPA with respect to a Participant in accordance with subsection
7.5(i), then such Participant shall pay any and all costs incurred by NCPA as a result of
such suspension including reasonable attorney's fees, the fees and expenses of other
experts, including auditors and accountants, or other reasonable and necessary costs
associated with such suspension and any portion of the Project Costs, scheduling and
dispatch costs, and Administrative Services Costs that were not recovered from such
Participant as a result of such suspension.
Section 8. Administration of Agreement
8.1 Commission. The Commission is responsible for the administration of this
Agreement. Each Participant shall be represented by its Commissioner or their designated
alternate Commissioner ("Alternate") pursuant to the Joint Powers Agreement. Each
Commissioner shall have authority to act for the Participant represented with respect to
matters pertaining to this Agreement.
8.2 Forum. Whenever any action anticipated by this Agreement is required to be
jointly taken by the Participants, such action shall be taken at regular or special meetings
of the NCPA Commission.
26
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
8.3 Quorum. For purposes of acting upon matters that relate to administration
of this Agreement, a quorum of the Participants shall consist of those Commissioners, or
their designated Alternate, representing a numerical majority of the Participants.
8.4 Voting. Each Participant shall have the right to cast one vote with respect to
matters pertaining to this Agreement. A unanimous vote of all Participants shall be
required for action regarding: (i) any transfer of rights to a Third Party as described in
Section 9 of this Agreement; and (ii) for matters related to any of the following actions as
provided for in the PPA: (a) exercising any early termination provisions as set forth in
Section 2.4 of the PPA, and (b) exercising any assignment rights as set forth in Section 12.7
of the PPA. For all other matters pertaining to this Agreement, a majority vote of the
Participants shall be required for action.
Section 9. Transfer of Rights by Participants
9.1 A Participant has the right to make transfers, sales, assignments and
exchanges (collectively "transfers(s)") of any portion of its Project Participation Percentage
and rights thereto, subject to the approval provisions in Section 8.4 of this Agreement,
provided that the transferee satisfies all applicable criterion in the PPA. If a Participant
desires to transfer a portion or its entire share of the Project for a specific time interval, or
permanently, then NCPA will, if requested by such Participant, use its best efforts to
transfer that portion of the Participant's share of the Project.
27
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
9.2 Before a Participant may transfer an excess Project share pursuant to Section
9.1 to any person or entity other than a Participant, it shall give all other Participants the
right to purchase the share on the same terms and conditions. Before a Participant may
transfer an excess Project share pursuant to section 9.1 to any person or entity other than a
Member, it shall give all Members the right to purchase the share on the same terms and
conditions. Such right shall be exercised within thirty (30) days of receipt of notice of said
right.
No transfer shall relieve a Participant of any of its obligations under this
Agreement except to the extent that NCPA receives payment of these obligations from a
transferee.
Section 10. Term and Termination. This Agreement shall become effective when it has
been duly executed by all Participants, and delivered to and executed by NCPA (the
"Effective Date"). NCPA shall notify all Participants in writing of the Effective Date. The
Term of this Agreement shall be coterminous with the PPA, and shall commence on the
Effective Date, and shall continue through the term of the PPA.
Section 11. Withdrawal of Participants, No Participant may withdraw from this
Agreement except as otherwise provided for herein.
Section 12. Settlement of Disputes and Arbitration. The Parties agree to make best
efforts to settle all disputes among themselves connected with this Agreement as a matter
of normal business under this Agreement. The procedures set forth in Section 10 of the
28
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
Power Management and Administrative Services Agreement shall apply to all disputes
that cannot be settled by the Participants themselves; provided, that the provisions of
Section 4.5 shall first apply to all disputes involving invoices prepared by NCPA.
Section 13. Miscellaneous
13.1 Confidentiality. The Parties will keep confidential all confidential or trade
secret information made available to them in connection with this Agreement, to the extent
possible, consistent with applicable laws, including the California Public Records Act.
Confidential or trade secret information shall be marked or expressly identified as such.
If a Party ("Receiving Party') receives a request from a Third Party for access to, or
inspection, disclosure or copying of, any other Party's (the "Supplying Party") confidential
data or information, which the Receiving Party has possession of ("Disclosure Request"),
then the Receiving Party shall provide notice and a copy of the Disclosure Request to the
Supplying Party within three (3) Business Days after receipt of the Disclosure Request.
Within three (3) Business Days after receipt of such notice, the Supplying Party shall
provide notice to the Receiving Party either:
(i) that the Supplying Party believes there are reasonable legal grounds for
denying or objecting to the Disclosure Request, and the Supplying Party requests the
Receiving Party to deny or object to the Disclosure Request with respect to identified
confidential information. In such case, the Receiving Party shall deny the Disclosure
Request and the Supplying Party shall defend the denial of the Disclosure Request at its
29
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
sole cost, and it shall indemnify the Receiving Party for all costs associated with denying
or objecting to the Disclosure Request. Such indemnification by the Supplying Party of the
Receiving Party shall include all of the Receiving Party's costs reasonably incurred with
respect to denial of or objection to the Disclosure Request, including but not limited to
costs, penalties, and the Receiving Party's attorney's fees; or
(ii) that the Receiving Party may grant the Disclosure Request without any
liability by the Receiving Party to the Supplying Party.
13.2 Indemnification and Hold Harmless. Subject to the provisions of Section
13.4, each Participant agrees to indemnify, defend and hold harmless NCPA and its
Members, including their respective governing boards, officials, officers, agents, and
employees, from and against any and all claims, suits, losses, costs, damages, expenses
and liability of any kind or nature, including reasonable attorneys' fees and the costs of
litigation, including experts, to the extent caused by any acts, omissions, breach of
contract, negligence (active or passive), gross negligence, recklessness, or willful
misconduct of that Participant, its governing officials, officers, employees, subcontractors
or agents, to the maximum extent permitted by law.
13.3 Several Liabilities. No Participant shall, in the first instance, be liable under
this Agreement for the obligations of any other Participant or for the obligations of NCPA
incurred on behalf of other Participants. Each Participant shall be solely responsible and
liable for performance of its obligations under this Agreement, except as otherwise
30
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
provided for herein. The obligation of each Participant under this Agreement is, in the
first instance, a several obligation and not a joint obligation with those of the other
Participants.
Notwithstanding the foregoing, the Participants acknowledge that any debts
or obligations incurred by NCPA under this Agreement on behalf of any of them shall be
borne solely by such Participants in proportion to their respective Project Participation
Percentages, and not by non -Participant Members of NCPA, pursuant to Article IV,
Section 3(b) of the Joint Powers Agreement.
In the event that a Participant should fail to pay its share of the debts or
obligations incurred by NCPA as required by this Agreement, the remaining Participants
shall, in proportion to their Project Participation Percentages, pay such unpaid amounts
and shall be reimbursed by the Participant failing to make such payments.
13.4 No Consequential Damages. FOR ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES
IS PROVIDED IN THIS AGREEMENT, THE LIABILITY OF THE DEFAULTING PARTY
SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER
DAMAGES OR REMEDIES ARE HEREBY WAIVED. IF NO REMEDY OR MEASURE OF
DAMAGE IS EXPRESSLY PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY
SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES
AND REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL NCPA OR ANY
31
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, REPRESENTATIVES,
DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY LOST
PROFITS, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE, OR
INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF
GOODWILL, LOST REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NCPA AND EACH PARTICIPANT EACH HEREBY WAIVES SUCH CLAIMS AND
RELEASES EACH OTHER AND EACH OF SUCH PERSONS FROM ANY SUCH
LIABILITY.
The Parties acknowledge that California Civil Code section 1542 provides that: "A general
release does not extend to claims which the creditor does not know or suspect to exist in
his or her favor at the time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor." The Parties waive the
provisions of section 1542, or other similar provisions of law, and intend that the waiver
and release provided by this Section of this Agreement shall be fully enforceable despite
its reference to future or unknown claims.
13.5 Waiver. No waiver of the performance by a Party of any obligation under
this Agreement with respect to any default or any other matter arising in connection with
this Agreement shall be effective unless given by the Commission or the governing body
of a Participant, as applicable. Any such waiver by the Commission in any particular
32
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
instance shall not be deemed a waiver with respect to any subsequent performance,
default or matter.
13.6 Amendments. Except where this Agreement specifically provides otherwise,
this Agreement may be amended only by written instrument executed by the Parties with
the same formality as this Agreement.
13.7 Assignment of Agreement.
13.7.1 Binding Upon Successors. This Agreement shall inure to the
benefit of and shall be binding upon the respective successors and assignees of the
Parties to this Agreement.
13.7.2 No Assignment. Neither this Agreement, nor any interest herein,
shall be transferred or assigned by a Party hereto except with the consent in writing of
the other Parties hereto, which consent shall not be unreasonably withheld.
13.8 Severability. In the event that any of the terms, covenants or conditions of
this Agreement or the application of any such term, covenant or condition, shall be held
invalid as to any person or circumstance by any court having jurisdiction, all other terms,
covenants or conditions of this Agreement and their application shall not be affected
thereby, but shall remain in force and effect unless the court holds that such provisions are
not severable from all other provisions of this Agreement.
13.9 Governing Law. This Agreement shall be interpreted, governed by, and
construed under the laws of the State of California.
33
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
13.10 Headings; All indices, titles, subject headings, section titles and similar items
are provided for the purpose of convenience and are not intended to be inclusive,
definitive, or affect the meaning of the contents of this Agreement or the scope thereof.
13.11 Notices. Any notice, demand or request required or authorized by this
Agreement to be given to any Party shall be in writing, and shall either be personally
delivered to a Participant's Commissioner or Alternate, and to the General Manager, or
shall be transmitted to the Participant and the General Manager at the addresses shown on
the signature pages hereof. The designation of such addresses may be changed at any
time by written notice given to the General Manager who shall thereupon give written
notice of such change to each Participant. All such notices shall be deemed delivered
when personally delivered, two (2) Business Days after deposit in the United States mail
first class postage prepaid, or on the first Business Day following delivery through
electronic communication.
13.12 Warrant o£ Authority. Each Party represents and warrants that it has been
duly authorized by all requisite approval and action to execute and deliver this Agreement
and that this Agreement is a binding, legal, and valid agreement enforceable in accordance
with its terms. Upon execution of this Agreement, each Participant shall deliver to NCPA
a resolution of the governing body of such Participant evidencing approval of and
authority to enter into this Agreement.
34
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
13.13 Counterparts. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect as an
original instrument and as if all the signatories to all of the counterparts had signed the
same instrument. Any signature page of this Agreement may be detached from any
counterpart of this Agreement without impairing the legal effect of any signatures thereon,
and may be attached to another counterpart of this Agreement identical in form hereto but
having attached to it one or more signature pages.
13.14 Venue. In the event that a Party brings any action under this Agreement, the
Parties agree that trial of such action shall be vested exclusively in the state courts of
California in the County of Placer or in the United States District Court for the Eastern
District of California.
13.15 Attorneys' Fees. If a Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provisions of this Agreement, then
each Party shall bear its own fees and costs, including attorneys' fees, associated with the
action.
13.16 Counsel Representation. Pursuant to the provisions of California Civil Code
Section 1717 (a), each of the Parties were represented by counsel in the negotiation and
execution of this Agreement and no one Party is the author of this Agreement or any of its
subparts. Those terms of this Agreement which dictate the responsibility for bearing any
attorney's fees incurred in arbitration, litigation or settlement in a manner inconsistent
35
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
with the provisions of Section 13.2 were intentionally so drafted by the Parties, and any
ambiguities in this Agreement shall not be interpreted for or against a Party by reason of
that Party being the author of the provision.
13.17 No Third Party Beneficiaries. Nothing contained in this Agreement is
intended by the Parties, nor shall any provision of this Agreement be deemed or construed
by the Parties, by any third person or any Third Parties, to be for the benefit of any Third
Party, nor shall any Third Party have any right to enforce any provision of this Agreement
or be entitled to damages for any breach by the Parties of any of the provisions of this
Agreement.
36
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
IN WITNESS WHEREOF, NCPA and each Participant have, by the signature of its
duly authorized representative shown below, executed and delivered a counterpart of this
Agreement.
NORTHERN CALIFORNIA
POWER AGENCY
651 Commerce Drive
Roseville, CA 95678
By:
Title:
Date:
Approved as to form:
By:
Its: General Counsel
Date•
Attestation (if applicable):
By:
Its:
Date:
CITY OF HEALDSBURG
401 Grove Street
Healdsburg, CA 95448
By:_
Title:
Date:
Approved as to form:
By:
Its: City Attorne
Date:
Attestation (if applicable):
By:
T4 --
Date:
37
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
CITY OF LODI
221 W. Pine Street
Lodi, CA 95240
By: Stephen Schwabauer
Title: City Manager
Date:
Approved as to form:
By: Janice D. Ma dich
Its: City Attorney
Date:
Attestation (if applicable)
By: Jennifer Cusmir
Its: City Clerk
Date:
CITY OF LOMPOC
100 Civic Center Plaza
Lompoc, CA 93436
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney _
Date:
Attestation (if applicable)
By:
Its:
Date:
38
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
CITY OF OAKLAND, acting
by and through its
Board of Port Commissioners
530 Water Street
Oakland, CA 94607
CITY OF ROSEVILLE
311 Vernon Street
Roseville, CA 95678
By:
By:_
Title:
Date:
Title:
Date:
Approved as to form:
By:
Its: Port General Counsel
Date:
Attestation (if applicable)
By:—
Its.—
Date:
yIts:Date:
Approved as to form:
By:
Its: City Attorney
Date:
Attestation (if applicable)
By:
Its:
Date:
39
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
CITY OF SANTA CLARA
1500 Warburton Avenue
Santa Clara, CA 95050
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
Attestation (if applicable)
By:
Its:
Date:
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT
300 Lakeside Drive, 16th Floor
Oakland, CA 94612
By:
Title:
Date:
Approved as to form:
By:
Its: City Attorney
Date:
Attestation (if applicable)
M
Date:
40
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
CITY OF UKIAH
300 Seminary Avenue
Ukiah, CA 95482
By:_
Title:
Date:
Approved as to form:
Its: City Attorney
Date:
Attestation (if applicable)
By:
Its:
Date:
41
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
EXHIBIT A
PROJECT PARTICIPATION PERCENTAGES
Concurrent to the Effective Date of this Agreement, the Project Participation Percentages
contained in this Exhibit A may be updated in the event that one or more of the Members
shown in the preliminary list of Participants do not become a Participant. In the event that
one or more of the Members shown in the preliminary list of Participants do not become a
Participant, the Project Participation Percentage for that Member will be reallocated to the
City of Roseville and the City of Santa Clara in equal shares. NCPA shall notify all
Participants of the final Project Participation Percentages in writing concurrent with the
Effective Date of this Agreement, and if necessary NCPA shall provide an updated Exhibit
A to the Participants showing the final Project Participation Percentages.
Preliminary List of Participants
City
of Healdsburg
2.0 MW, or 1.65%
City
of Lodi
10.0 MW, or 8.23%
City
of Lom oc
2.5 MW, or 2.06%
City
of Roseville
20.0 MW, 16.46%
City
of Santa Clara
78.0 MW, 64.2%
City
of Ukiah
2.0 MW, 1.65%
Port of Oakland
3.0 MW, or 2.47%
San
Francisco Bay Area Ra id Transit District
4.0 MW, or 3.29%
1'111Q1 ML OL U1 1 911Ll Ll JJ9111LD
42
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
EXHIBIT B
PPA
The Power Purchase Agreement between South Feather Water and Power Agency
and Northern California Power Agency has been attached to this Agreement as Exhibit B.
43
THIRD PHASE AGREEMENT FOR SOUTH FEATHER POWER PROJECT
POWER PURCHASE AGREEMENT
BETWEEN
SOUTH FEATHER WATER AND POWER AGENCY
AND
NORTHERN CALIFORNIA POWER AGENCY
Dated as of [ ], 20[_]
Table of Contents
ARTICLE I DEFINITIONS AND INTERPRETATION........................................................ 3
Section1.1
Definitions............................................................................................
3
Section 1.2
Interpretation......................................................................................
15
ARTICLE II EFFECTIVE
DATE, TERM, AND EARLY TERMINATION .....................16
Section 2.1
Effective Date....................................................................................
16
Section2.2
Term...................................................................................................
16
Section 2.3
Survivability.......................................................................................
17
Section 2.4
Early Termination..............................................................................
17
ARTICLE III OPERATION AND MAINTENANCE OF THE FACILITY ......................17
Section 3.1
General Operational Requirements....................................................
17
Section 3.2
Operation and Maintenance Plan .......................................................
18
Section 3.3
Decommissioning and Other Costs ....................................................
18
Section 3.4
Environmental Credit.........................................................................
18
Section3.5
Outages..............................................................................................
18
ARTICLE IV COMPLIANCE DURING OPERATIONS....................................................
20
Section 4.1
Buyers' Rights to Monitor in General ...............................................
20
Section 4.2
Effect of Review by Buyer................................................................
20
Section4.3
No Liens.............................................................................................
21
ARTICLE V PURCHASE AND SALE OF PRODUCT........................................................
21
Section 5.1
Purchases by Buyer............................................................................
21
Section 5.2
Sale of Environmental Attributes.......................................................
21
ARTICLE VI TRANSMISSION AND SCHEDULING; TITLE AND RISK OF
LOSS.............................................................................................................
21
Section6.1
Delivery..............................................................................................
21
Section 6.2
Scheduling Coordinator; CAISO Cost Allocation .............................
22
Section 6.3
Interconnection Facilities...................................................................
22
Section6.4
Forecasting.........................................................................................
22
Section6.5
Curtailment........................................................................................
24
Section6.6
No Payment........................................................................................
25
Section 6.7
Title; Risk of Loss..............................................................................
25
Section 6.8
RPS and EPS Compliance.................................................................
25
Section 6.9
Compliance Expenditure Cap............................................................
25
-i-
ARTICLE VII ENVIRONMENTAL ATTRIBUTES............................................................
26
Section 7.1
Transfer of Environmental Attributes ................................................
26
Section 7.2
Reporting of Ownership of Environmental Attributes .......................
27
Section 7.3
Environmental Attributes...................................................................
27
Section7.4
WREGIS............................................................................................
27
Section 7.5
Further Assurances.............................................................................
27
ARTICLE VIII CAPACITY RIGHTS....................................................................................
28
Section 8.1
Capacity Rights..................................................................................
28
Section 8.2
Covenant Regarding Capacity Rights ................................................
28
Section 8.3
Further Assurances.............................................................................
28
Section 8.4
Resource Adequacy Failure...............................................................
28
ARTICLE IX BILLING; PAYMENT; AUDITS; METERING; ATTESTATIONS;
POLICIES....................................................................................................
29
Section 9.1
Billing and Payment...........................................................................
29
Section 9.2
Calculation of Energy Delivered; Invoices and Payment ..................
29
Section 9.3
Disputed Invoices...............................................................................
30
Section 9.4
Right of Setoff ...................................................................................
31
Section 9.5
Records and Audits............................................................................
31
Section 9.6
Electric Metering Devices..................................................................
32
Section9.7
Taxes..................................................................................................
33
ARTICLE X REPRESENTATIONS,
WARRANTIES and COVENANTS ........................
33
Section 10.1
Representations and Warranties of Buyer ..........................................
33
Section 10.2
Representations and Warranties of Seller ..........................................
34
ARTICLE XI DEFAULT; TERMINATION AND REMEDIES; PERFORMANCE
DAMAGE.....................................................................................................
35
Section11.1
Default................................................................................................
35
Section 11.2
Default Remedy.................................................................................
36
Section 11.3
Termination for Default.....................................................................
37
ARTICLE XII MISCELLANEOUS
........................................................................................
38
Section 12.1
Authorized Representative.................................................................
38
Section12.2
Notices...............................................................................................
39
Section 12.3
Dispute Resolution.............................................................................
39
Section 12.4
Further Assurances; Change in Electric Market Design ....................
40
Section 12.5
No Dedication of Facilities................................................................
40
Section 12.6
Force Majeure....................................................................................
40
Section 12.7
Assignment of Agreement.................................................................
42
Section12.8
Ambiguity..........................................................................................
42
Section 12.9
Attorneys' Fees & Costs....................................................................
42
Section 12.10
Voluntary Execution..........................................................................
42
Section 12.11
Entire Agreement; Amendments........................................................
42
Section 12.12
Governing Law..................................................................................
43
Section12.13
Venue.................................................................................................
43
Section 12.14
Execution in Counterparts..................................................................
43
Section 12.15
Effect of Section Headings................................................................
43
Section 12.16
Waiver; Available Remedies.............................................................
43
Section 12.17
Relationship of the Parties.................................................................
43
Section 12.18
Third Party Beneficiaries...................................................................
43
Section 12.19
Indemnification; Damage or Destruction; Insurance;
Condemnation; Limit of Liability......................................................
44
Section 12.20
Severability........................................................................................
45
Section 12.21
Confidentiality...................................................................................
46
Section 12.22
Mobile-Sierra.....................................................................................46
Appendices
APPENDIX A CONTRACT PRICE
APPENDIX B FACILITY DESCRIPTION
APPENDIX C SCHEDULING AND OPERAITONS
APPENDIX D FORM OF ATTESTATION
APPENDIX E INSURANCE
APPENDIX F BUYER AND SELLER BILLING, NOTIFICATION AND SCHEDULING
CONTACT INFORMATION
-iv-
POWER PURCHASE AGREEMENT
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGENCY
THIS POWER PURCHASE AGREEMENT (this "Agreement"), dated as of this [ ]
day of [ ], 20[_], is being entered into by and between the NORTHERN CALIFORNIA
POWER AGENCY ("Buyer"), a joint powers agency and a public entity organized under the laws
of the State of California and created under the provisions of the California Joint Exercise of
Powers Act found in Chapter 5 of Division 7 of Title 1 of the Government Code of the State of
California, beginning at California Government Code Section 6500, et. seq., ("Act") and the
"Amended and Restated Northern California Power Agency Joint Powers Agreement" entered into
pursuant to the provisions of the Act among Buyer and Buyer's members, dated as of January 1,
2008, and SOUTH FEATHER WATER AND POWER AGENCY, an irrigation district formed
under the Irrigation District Act (Division 11 of the California Water Code) of the State of
California ("Seller"). Each of Buyer and Seller is referred to individually in this Agreement as a
"Party" and together as the "Parties."
RECITALS
WHEREAS, Buyer's members have adopted or are adopting policies that are designed to
increase the amount of energy that they provide to their retail customers from eligible renewable
energy resources and carbon free resources to comply with the California Renewable Energy
Resources Act and other applicable requirements; and
WHEREAS, Seller owns and operates four existing hydroelectric generating plants
operating under FERC licenses: the Forbestown Powerhouse (37.5 MW), the Kelly Ridge
Powerhouse (11.0 MW), the Sly Creek Powerhouse (13.0) MW and the Woodleaf Powerhouse
(60.0 MW) (the "Facility or as otherwise referred to as the South Feather Power Project"); and
WHEREAS, the South Feather Power Project operates under FERC license no. 2088,
which is currently being operated under an expired license, the terms of which extend on a year to
year basis until a new license is issued; and
WHEREAS, the Kelly Ridge Powerhouse and Sly Creek Powerhouse ("the Renewable
Facilities") are eligible renewable energy resource certified by the CEC; and
WHEREAS, Buyer is interested in purchasing Products from the Facilities; and
WHEREAS, Seller has agreed to sell to Buyer, and Buyer has agreed to purchase from
Seller, certain energy, capacity rights and associated environmental attributes for the purchase
price set forth in Appendix A; and
-1-
WHEREAS, the Parties desire to set forth the terms and conditions pursuant to which such
sales and purchases shall be made.
-2-
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
herein, the mutual covenants and agreements herein set forth, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions.
The following terms in this Agreement and the appendices hereto shall have the following
meanings when used with initial capitalized letters:
"Act" has the meaning set forth in the preamble of this Agreement.
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by or is under common control with such Person or, as is appropriate given
the context, is a director or officer of such Person or of an Affiliate of such Person. As used in this
Agreement, "control" shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of management, policies or activities of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agreement" has the meaning set forth in the preamble of this Agreement, and includes
the Appendices attached hereto.
"Agreement Term" has the meaning set forth in Section 2.2(a).
"Annual True -Up Credit" has the meaning set forth in Appendix A.
"ASME" means American Society of Mechanical Engineers.
"Assumed Daily Deliveries" has the meaning set forth in Section 11.3(c).
"ASTM" means American Society for Testing and Materials.
"Authorized Auditors" means representatives of Buyer or Buyer's Authorized
Representative who are authorized to conduct audits on behalf of Buyer.
"Authorized Representative" means, with respect to each Party, the Person designated as
such Party's authorized representative pursuant to Section 12.1.
"Available Generating Capacity" means the Contract Capacity less the amount of
capacity that is not available due to an outage.
"Availability Incentive Payment" has the meaning set forth in the CAISO Tariff.
-3-
"Availability Standard" has the meaning set forth in the CAISO Tariff.
"AWS" means American Welding Society.
"Bankruptcy" means any case, action or proceeding under any bankruptcy,
reorganization, debt arrangement, insolvency or receivership law or any dissolution or liquidation
proceeding commenced by or against a Person and, if such case, action or proceeding is not
commenced by such Person, such case, action or proceeding shall be consented to or acquiesced
in by such Person or shall result in an order for relief or shall remain undismissed for ninety (90)
days.
"Base Output" has the meaning set forth in Appendix A.
"Base Output Compensation" has the meaning set forth in Appendix A.
"Base Output Monthly Payment" has the meaning set forth in Appendix A.
"Brown Act" has the meaning set forth in Section 12.21(b).
"Business Day" means any day that is not a Saturday, a Sunday, or a day on which
commercial banks are authorized or required to be closed in Los Angeles, California or New York,
New York.
"Buyer" has the meaning set forth in the preamble of this Agreement.
"Buyer Curtailment" has the meaning set forth in Section 6.5(b).
"Buyer Indemnitee" has the meaning set forth in Section 12.19(a).
"Cal -OSHA" means the California Occupational Safety & Health Administration.
"CAISO" means the California Independent System Operator.
"CAISO Costs" means (i) all current and future costs, expenses, fees, charges, credits and
other amounts assessed by the CAISO to Seller or to Buyer in connection with the Facilities and
(ii) any and all costs, expenses, fees, charges and other amounts incurred in connection with
performing Scheduling services, settlement services and serving as the Scheduling Coordinator.
"CAISO Master File" has the meaning set forth in the CAISO Tariff.
"CAISO Tariff' means the CAISO FERC Electric Tariff, Fifth Replacement Volume,
including the rules, protocols, procedures and standards attached thereto and any replacement
thereof or successor thereto in effect.
"CAMD" means the Clean Air Markets Division of the EPA and any other state, regional
or federal or intergovernmental entity or Person that is given authorization or jurisdiction or both
over a program involving the registration, validation, certification or transferability of
Environmental Attributes.
"Capacity Rights" means the rights, whether in existence as of the Effective Date or
arising thereafter during the Agreement Term, to capacity, Resource Adequacy Attributes, Local
Capacity Requirement Attributes, flexible capacity attributes, operating reserves, regulation
services, and other associated attributes or reserves, or any of the foregoing as may in the future
be defined by the CAISO, or any other balancing authority, reliability entity or Governmental
Authority, associated with the electric generating capability of the Facilities, including the right to
resell such rights.
"CEC" means California's State Energy Resources Conservation and Development
Commission, also known as the California Energy Commission.
"CEC Certified" means that the CEC has certified that the Facility is an eligible renewable
energy resource in accordance with RPS Law.
"CEC Performance Standard" means, at any time, the applicable greenhouse gas
emissions performance standard in effect at such time for electric generation facilities that are
owned or operated (or both) by local publicly owned electric utilities, or for which a local publicly
owned electric utility has entered into a contractual agreement for the purchase of power from such
facilities, as established by the CEC or other Governmental Authority having jurisdiction over
Buyer.
"CEQA" means the California Environmental Quality Act, California Public Resources
Code §§ 21000, et seq.
"Change in Law" means a material change to any WREGIS standards, rules, or
requirements, or a change to any federal, state, local or other law (including any environmental
law, EPS Law or RPS Law), resolution, standard, code, rule, ordinance, directive, regulation,
order, judgment, decree, ruling, determination, permit, certificate, authorization, or approval of a
Governmental Authority, including the adoption of any new law, resolution, standard, code, rule,
ordinance, directive, regulation, order, judgment, decree, ruling, determination, permit, certificate,
authorization, or approval.
"Compliance Showings" means the applicable load serving entities compliance with the
resource adequacy requirements of its applicable regulatory authority for an applicable Showing
Month.
"Conditional Use Permit" means the conditional use permits for the Facility.
"Confidential Information" has the meaning set forth in Section 12.21(a).
-5-
"Contract Capacity" means the amount of installed Facility capacity set forth in Appendix
"Contract Price" means, for any period of time, the Contract Price set forth in
Appendix A.
"Contract Year" means (a) with respect to the first (1st) Contract Year, the period
beginning on the Initial Delivery Date and extending through December 31 of the calendar year in
which the Initial Delivery Date occurs, (b) with respect to the second (2nd) through the twentieth
(20th) Contract Years, the applicable calendar year, and (c) with respect to the twenty first (21 st)
Contract Year, the period beginning on January 1 of the applicable calendar year and extending
through the day before the anniversary of the Initial Delivery Date.
"Costs" has the meaning set forth in Section 11.3( (iii).
"CPRA" has the meaning set forth in Section 12.21(b).
"Curtailment Period" means a period of time during the Delivery Term during which the
generation of Facility Energy is required to be curtailed or reduced (in whole or part) as a result of
an order, direction, alert, request, notice, instruction or directive from a Transmission Provider, the
CAISO, WECC, NERC, or any other reliability entity due to (a) a System Emergency, (b) system
improvements, curtailments, or scheduled and unscheduled repairs or maintenance at or
downstream from the Point of Delivery, (c) an event of Force Majeure at or downstream from the
Point of Delivery, (d) over -generation or any other reason adversely affecting the normal function
and operation of the CAISO grid or a Transmission Provider's system, as may from time to time
be identified by the CAISO, the Transmission Provider, WECC, NERC, or any other reliability
entity. For the avoidance of doubt, the term "Curtailment Period" shall not include curtailments
directed by CAISO for economic reasons as described in Section 6.5(b) or any curtailment by
Buyer pursuant to Section 6.5(b).
"Day -Ahead Market" has the meaning set forth in the CAISO Tariff.
"Deemed Generated Energy" has the meaning set forth in Section 6.5(c).
"Default" has the meaning set forth in Section 11.1.
"Defaulting Party" has the meaning set forth in Section 11.1.
"Delivery Term" has the meaning set forth in Section 2.2(b).
"Dispute" has the meaning set forth in Section 12.3(a).
"Dispute Notice" has the meaning set forth in Section 12.3(a).
"Early Termination Date" has the meaning set forth in Section 11.3(a).
W'v
"EEI" means Edison Electric Institute.
"Effective Date" means the date on which Buyer and Seller have both executed this
Agreement.
"Electric Metering Devices" means all meters, metering equipment, and data processing
equipment used to measure, record, or transmit data relating to the Facility Energy. Electric
Metering Devices include the metering current transformers and the metering voltage
transformers.
"Energy" means electrical energy.
"Environmental Attribute Reporting Rights" means all rights to report ownership of the
Environmental Attributes to any Person, including under Section 1605(b) of the Energy Policy Act
of 1992, as amended from time to time or any successor statute, or any other current or future
international, federal, state or local law, regulation or bill, or otherwise.
"Environmental Attributes" means RECs, and any and all other current or future credits,
benefits, emissions reductions, offsets or allowances, howsoever entitled, named, registered,
created, measured, allocated or validated (A) that are at any time recognized or deemed of value
(or both) by Buyer, applicable law, or any voluntary or mandatory program of any other
Governmental Authority or other Person and (B) that are attributable to (i) generation by the
Facility during the Delivery Term or Replacement Energy required to be delivered by Seller to
Buyer during the Delivery Term and (ii) the emissions or other environmental characteristics of
such generation or such Replacement Energy or its displacement of conventional or other types of
Energy generation. Environmental Attributes include any of the aforementioned arising out of
legislation or regulation concerned with oxides of nitrogen, sulfur, carbon, or any other greenhouse
gas or chemical compound, particulate matter, soot, or mercury, or implementing the United
Nations Framework Convention on Climate Change (the "UNFCCC"'), the Kyoto Protocol to the
UNFCCC, California's greenhouse gas legislation (including RPS Law and California Assembly
Bill 32 (Global Warming Solutions Act of 2006) and any regulations implemented pursuant to that
act, including any compliance instruments accepted under the California Cap on Greenhouse Gas
Emissions and Market -Based Compliance Mechanisms regulations of the California Air Resources
Board or any successor regulations thereto) or any similar international, federal, state or local
program or crediting "early action" with a view thereto, laws or regulations involving or
administered by the CAMD and all Environmental Attribute Reporting Rights, including all
evidences (if any) thereof such as renewable energy certificates of any kind. Environmental
Attributes for purposes of this definition are separate from the Energy produced from the Facility
and do not include (a) investment tax credits, any local, state or federal production tax credits,
depreciation deductions or other tax credits providing a tax benefit to Seller or any other Person
based on an ownership or security interest in the Facility, (b) any other depreciation deductions
and benefits, and other tax benefits arising from ownership of the Facility and (c) cash grants or
other financial incentives from any local, state or federal government available to Seller with
respect to the Facility.
"EPA" means the United States Environmental Protection Agency.
-7-
"EPS Compliance" or "EPS Compliant" when used with respect to the Facility, means
that the Facility satisfies both the PUC Performance Standard and the CEC Performance Standard
in effect at the time; provided, if it is impossible for the Facility to satisfy both the PUC
Performance Standard and the CEC Performance Standard in effect at any time, the Facility shall
be deemed EPS Compliant if it satisfies the CEC Performance Standard in effect at the time and
those portions of the PUC Performance Standard in effect at the time that it is possible for the
Facility to satisfy while at the same time satisfying the CEC Performance Standard in effect at the
time.
"EPS Law" means Sections 8340 and 8341 of the California Public Utilities Code or its
successor or comparable state or federal programs.
"Extended Delivery Term" has the meaning set forth in Section 2.2(b).
"Facility" means the four (4) hydroelectric generating facilities described in the Recitals
hereto, and Appendix B, including all property interests and related Interconnection Facilities
owned by Seller.
"Facility Energy" means Energy generated by the Facility, less station load,
transformation losses and transmission losses to the Point of Delivery, as measured by CAISO-
approved Electric Metering Devices.
"Facility Monthly Variable Output" has the meaning set forth in Appendix A.
"FERC" means the Federal Energy Regulatory Commission.
"Fixed Monthly Payment" has the meaning set forth in Appendix A.
"Force Majeure" has the meaning set forth in Section 12.6(b).
"Force Majeure Notice" has the meaning set forth in Section 12.6(a).
"Forced Outage" means the removal of service availability of the Facility, or any portion
of the Facility, for emergency reasons or conditions in which the Facility, or any portion thereof,
is unavailable due to unanticipated failure, including as a result of Force Majeure.
"Full Capacity Deliverability Status" or "FCDS" has the meaning set forth in the CAISO
Tariff.
"GAAP" means generally accepted accounting principles set forth in opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as may be approved by a significant segment of the
accounting profession, in each case as the same are applicable to the circumstances as of the date
of determination.
"Gains" has the meaning set forth in Section 11.3(j)(i).
"Governmental Authority" means any federal, state, regional, city or local government,
any intergovernmental association or political subdivision thereof, or other governmental,
regulatory or administrative agency, court, commission, administration, department, board, or
other governmental subdivision, legislature, rulemaking board, tribunal, or other governmental
authority with jurisdiction over the Parties, the Facility, or this Agreement, or any Person acting
as a delegate or agent of any Governmental Authority; provided that "Governmental Authority"
specifically excludes Buyer, any successor or assignee of Buyer and the Participating Members.
"Gross Facility Energy" means the amount of Facility Energy delivered to the Point of
Delivery during a Buyer Curtailment plus the amount of MWh calculated to approximate the
amount of Energy that could have been produced and delivered to the Point of Delivery during the
Buyer Curtailment, based on the volume of water bypassed at the Facility during a Buyer
Curtailment. For the avoidance of doubt, volumes of water bypassed at the Facility for any reason
other than a Buyer Curtailment, including natural spill conditions that may occur, shall not be
included in the calculation of Gross Facility Energy.
Term.
"IEEE" means the Institute of Electrical and Electronics Engineers.
"Insurance" means the policies of insurance as set forth in Appendix E.
"Interest Rate" has the meaning set forth in Section 9.3.
"Initial Delivery Date" means December 19, 2021 and is the first day of the Delivery
"Initial Delivery Term" has the meaning set forth in Section 2.2(b).
"ISA" means the Instrument Society of America.
"Interconnection Agreement" means the interconnection agreement entered into by
Seller pursuant to which the Facility will be interconnected with the Transmission System, and
pursuant to which Seller's Interconnection Facilities and any other Interconnection Facilities will
be constructed, operated and maintained during the Delivery Term.
"Interconnection Facilities" means the interconnection facilities, control and protective
devices and metering facilities required to connect the Facility with the Transmission System in
accordance with the Interconnection Agreement.
"Licensed Professional Engineer" means an independent, professional engineer
reasonably acceptable to Buyer, licensed in the State of California, and otherwise qualified to
perform the work required hereunder.
MGM
"Lien" means any mortgage, deed of trust, lien, security interest, retention of title or lease
for security purposes, pledge, charge, encumbrance, equity, attachment, claim, easement, right of
way, covenant, condition or restriction, leasehold interest, purchase right or other right of any kind,
including any option, of any other Person in or with respect to any real or personal property.
"Local Capacity Requirement Attributes" means the benefits or attributes now or
existing in the future based on the procurement obligations of Buyer with respect to local resource
capacity requirements as prescribed by the PUC, the CAISO or other regional entity, and that are
associated with the electric generating capability of the Facility.
"Locational Marginal Price" or "LMP" has the meaning set forth in the CAISO Tariff.
"Losses" has the meaning set forth in Section 11.3(f)(ii).
"Major Maintenance Blockout" has the meaning set forth in Section 3.5(a).
"Month" means a calendar month commencing at 00:00 Pacific Prevailing Time on the
first day of such month and ending at 24:00 Pacific Prevailing Time on the last day of such month.
"Monthly Base Output" has the meaning set forth in Appendix A.
"MW" means megawatt in alternating current, or ac.
"MWh" means megawatt -hours.
"NERC" means the North American Electric Reliability Corporation.
"Net Qualifying Capacity" has the meaning set forth in the CAISO Tariff, provided,
however, the amount of Net Qualifying Capacity provided by the Facility shall be equal to the
amount of Resource Adequacy Capacity that is eligible to be used by Buyer to satisfy Compliance
Showing requirements, including adjustments to account for Facility availability, operational
limitations and Scheduled Outages.
"Non -Defaulting Party" has the meaning set forth in Section 1 13W.
"Non -Availability Charge" has the meaning set forth in the CAISO Tariff.
"Notice of Termination" has the meaning set forth in Section 2.2(c).
"Notifying Party" has the meaning set forth in Section 12.3(a).
"OSHA" means the Occupational Safety and Health Administration of the United States
Department of Labor.
"Pacific Prevailing Time" means the local time in the State of California.
-10-
"Participating Members" means RESERVED; LIST OF NCPA MEMBERS TO BE
INCLUDED PRIOR TO FINAL EXECUTION.
"Party" or "Parties" has the meaning set forth in the preamble of this Agreement.
"Permits" means all applications, permits, licenses, franchises, certificates, concessions,
consents, authorizations, certifications, self -certifications, approvals, registrations, orders, filings,
entitlements and similar requirements of whatever kind and however described that are required
to be filed, submitted, obtained or maintained by any Person with respect to the development,
siting, design, acquisition, construction, equipping, financing, ownership, possession, shakedown,
start-up, testing, operation or maintenance of the Facility, the production, sale and delivery of
Products from the Facility, including Facility Energy, Capacity Rights and Environmental
Attributes, or any other transactions or matter contemplated by this Agreement (including those
pertaining to electrical, building, zoning, environmental and occupational safety and health
requirements), including the, Conditional Use Permit, CEQA determinations and the Permits as
may be applicable.
"Person" means any individual, corporation, partnership, joint venture, limited liability
company, association, joint stock company, trust, unincorporated organization, entity, government
or other political subdivision.
"PNode" means the CAISO Pricing Node for the Facility as defined in the CAISO Tariff
to be established by CAISO, as set forth in Appendix B.
"Point of Delivery" mean the Point of Interconnection for each Facility.
"Point of Interconnection" has the meaning set forth in Appendix B.
"Present Value Rate" means, at any date, the sum of 0.50% plus the yield reported on
page "USD" of the Bloomberg Financial Markets Services Screen (or, if not available, any other
nationally -recognized trading screen reporting on-line intraday trading in United States
government securities) at 11:00 a.m. (New York City, New York time) for the United States
government securities having a maturity that most nearly matches the Remaining Term at that date.
"Products" means any and all Facility Energy, Capacity Rights, Environmental Attributes,
and ancillary products, services or attributes similar to the foregoing that are or can be produced
by, or are associated with, the Facility, whether now attainable or established in the future,
including delivered energy, renewable attributes, operating reserves and renewable energy credits.
"Prudent Utility Practices" means those practices, methods, and acts, that are commonly
used by a significant portion of the hydroelectric electric generation industry in prudent
engineering and operations to design, construct, and operate and maintain electric equipment
lawfully and with safety, dependability, reliability, efficiency, and economy, including any
applicable practices, methods, acts, guidelines, standards and criteria of the CAISO, FERC, NERC,
WECC, as each may be amended from time to time, and all applicable Requirements of Law.
Prudent Utility Practices are not intended to be limited to the optimum practice, method, or act, to
-11-
the exclusion of all others, but rather is intended to include acceptable practices, methods, and acts
generally accepted in the hydroelectric generation industry.
"Public Utilities Code" means the Public Utilities Code of the State of California, as may
be amended from time to time.
"PUC" means the California Public Utilities Commission and any successor thereto.
"PUC Performance Standard" means, at any time, the greenhouse gas emission
performance standard in effect at such time for electric generation facilities owned or operated (or
both) by load -serving entities and not local publicly -owned electric utilities, or for which a load -
serving entity and not a local publicly owned electric utility has entered into a contractual
agreement for the purchase of power from such facilities, as established by the PUC or other
Governmental Authority under the EPS Law.
"QRE" has the meaning set forth in Section 7.4.
"RA Capacity Monthly Payment" has the meaning set forth in Appendix A.
"RA Capacity Rate" has the meaning set forth in Appendix A.
"RA Deficiency Amount" means the liquidated damages payment that Seller shall pay to
Buyer for an applicable RA Shortfall Month as calculated in accordance with Section 8.4.
"RA Shortfall Month" means, for purpose of calculating an RA Deficiency Amount under
Section 8.4, any month which the amount of Resource Adequacy Capacity supplied from the
Facility for such month was less than the Net Qualifying Capacity for such month.
"Real -Time Market" has the meaning set forth in the CAISO Tariff.
"REC" or "Renewable Energy Credit" means a certificate of proof associated with the
generation of electricity from an eligible renewable energy resource, which certificate is issued
through the accounting system established, used or approved by the CEC pursuant to the RPS Law,
evidencing that one (1) MWh of Energy was generated and delivered from such eligible renewable
energy resource. Such certificate is a tradable environmental commodity (also known as a "green
tag" or "renewable energy certificate") for which the owner of the REC can evidence that it has
purchased Energy that is CEC Certified.
"Recipient Party" has the meaning set forth in Section 12.3
"Remaining Term" means, at any date, the remaining portion of the Delivery Term at that
date without regard to any early termination of this Agreement.
"Replacement RA" has the meaning set forth in Section 8.4(c).
-12-
"Requirements" means, collectively, (a) any standards or requirements of ASTM, ASME,
AWS, EPA, EEI, IEEE, ISA, National Electrical Code, NERC, National Electric Safety Code,
OSHA, Cal -OSHA, Uniform Building Code, or Uniform Plumbing Code applicable to the design
or construction of the Facility, (b) any applicable local county fire department standards or codes,
(c) Prudent Utility Practices, (d) FERC licenses, and federal and state dam safety regulations, (e)
all applicable Requirements of Law, including the UCC, and (f) all other requirements of this
Agreement.
"Requirement of Law" means any federal, state, local or other law (including any
environmental law, EPS Law or RPS Law), resolution, standard, code, rule, ordinance, directive,
regulation, order, judgment, decree, ruling, determination, permit, certificate, authorization,
license or approval of a Governmental Authority, including those pertaining to electrical, building,
zoning, environmental, dam safety, cyber and physical security, and occupational safety and health
requirements.
"Resource Adequacy Attributes" of "Resource Adequacy Capacity" means the benefits
or attributes, including flexible attributes, if any, now or existing in the future based on the
procurement obligations of Buyer with respect to Resource Adequacy as prescribed by the PUC,
the CAISO or any other regional entity, and that are associated with the electric generating
capability of the Facility.
"RPS Compliance" or "RPS Compliant" means, when used with respect to the Facility,
that all Energy generated by such facility at all times shall, together with all of the associated
Environmental Attributes, qualify as a "portfolio content category 1" eligible renewable resource,
as such term is defined in Public Utilities Code Section 399.12 or Section 399.16, or equivalent if
the RPS Law is changed, under the RPS Law.
"RPS Law" means the California Renewable Energy Resources Act, including the
California Renewables Portfolio Standard Program, Article 16 of Chapter 2.3, Division I of the
Public Utilities Code, California Public Resources Code § 25740 through 25751, any related
regulations or guidebooks promulgated by the CEC or, as applicable, the PUC or its successor or
equivalent state or federal programs.
"SCADA" means the supervisory control and data acquisition system for the Facility.
"Schedule" or "Scheduling" means the actions of Seller and Buyer, their Authorized
Representatives, the Scheduling Coordinator and the Transmission Providers, if applicable, of
notifying, requesting and confirming to the CAISO the amounts of Facility Energy expected to be
delivered consistent with the Scheduling Interval at the Point of Delivery on any given date during
the Delivery Term, all in the manner contemplated by the CAISO Tariff.
"Scheduled Outage" means any outage with respect to the Facility other than a Forced
Outage.
"Scheduled Outage Projection" has the meaning set forth in Section 3.5(a).
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"Scheduling Coordinator" has the meaning set forth in the CAISO Tariff.
"Seller" has the meaning set forth in the preamble of this Agreement.
"Seller Indemnitees" has the meaning set forth in Section 12.19(b).
"Settlement Interval" has the meaning set forth in the CAISO Tariff.
"Settlement Statement" has the meaning set forth in the CAISO Tariff.
"Showing Month" means the calendar month of the Delivery Period that is subject of the
related Compliance Showing.
"Subcontract" means any agreement or contract entered into on or after the Effective Date
by Seller and a Person other than Buyer, which Person is providing goods or services to Seller that
are related to the performance of Seller's obligations under this Agreement. Subcontracts
specifically include any agreement or contract that is referred to or defined as a "subcontract" in
the policies, ordinances, codes or laws with which Seller must comply pursuant to this Agreement,
or that is made with a "subcontractor" as such term is used or defined in such policies, ordinances,
codes, or laws.
"Subcontractor" means any party to a Subcontract with Seller.
"System Emergency" means each of the following: (i) "System Emergency" as set forth
in the CAISO Tariff and (ii) a condition or situation that in the judgment of Buyer (a) is imminently
likely to endanger life or property; or (b) is imminently likely (as determined in a
non-discriminatory manner) to cause a material adverse effect on the security of, reliability of, or
damage to the Transmission System, Transmission Provider's interconnection facilities (as defined
in the Interconnection Agreement) or the transmission systems of others to which the Transmission
System is directly connected.
"Tax" or "Taxes" means each federal, state, county, local and other (a) net income, gross
income, gross receipts, sales, use, ad valorem, business or occupation, transfer, franchise, profits,
withholding, payroll, employment, excise, property or leasehold tax and (b) customs, duty or other
fee, assessment or charge of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amount with respect thereto.
"Termination Notice" has the meaning set forth in Section 11.3(a).
"Termination Payment" means a payment in an amount equal to the Non -Defaulting
Party's (a) Losses, plus (b) Costs, minus (c) Gains; provided, however, that if such amount is a
negative number, the Termination Payment shall be equal to zero.
"Transmission Provider" means the Person operating the Transmission System to and
from the Point of Delivery.
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"Transmission Services" means the transmission and other services required to transmit
Facility Energy to or from the Point of Delivery.
"Transmission System" means the facilities utilized to provide Transmission Services.
"Unexcused Cause" has the meaning set forth in Section 12.6(b).
"UNFCCC" has the meaning set forth in the definition of "Environmental Attributes."
"Variable Output" has the meaning set forth in Appendix A.
"Variable Output Monthly Payment" has the meaning set forth in Appendix A.
"Variable Output Rate" has the meaning set forth in Appendix A.
"Variable Output True -Up" has the meaning set forth in Appendix A.
"WECC" means the Western Electricity Coordinating Council.
"WREGIS" means Western Renewable Energy Generation Information System.
"WREGIS Certificates" has the meaning set forth in Section 7.4.
"WREGIS Operating Rules" means the rules describing the operations of the WREGIS,
as published by WREGIS.
Other terms defined herein have the meanings so given when used in this Agreement with
initial -capitalized letters.
Section 1.2 Interpretation. In this Agreement, unless a clear contrary intention
appears:
(a) time is of the essence;
(b) the singular number includes the plural number and vice versa;
(c) reference to any Person includes such Person's successors and assigns
(regardless of whether such Person's successors and assigns are expressly referenced in the
provision) but, in case of a Party hereto, only if such successors and assigns are permitted by this
Agreement, and reference to a Person in a particular capacity excludes such Person in any other
capacity or individually;
(d) reference to any gender includes the other;
(e) reference to any agreement (including this Agreement), document, act,
statute, law, instrument, tariff or Requirement means such agreement, document, act, statute, law,
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instrument, or tariff, or Requirement, as amended, modified, replaced or superseded and in effect
from time to time in accordance with the terms thereof and, if applicable, the terms hereof,
regardless of whether the reference to the agreement, document, act, statute, law, instrument, tariff,
or Requirement expressly refers to amendments, modifications, replacements, or successors;
(f) reference to any Article, Section, or Appendix means such Article of this
Agreement, Section of this Agreement, or such Appendix to this Agreement, as the case may be,
and references in any Article or Section or definition to any clause means such clause of such
Article or Section or definition;
(g) "hereunder," "hereof," "hereto" and words of similar import shall be
deemed references to this Agreement as a whole and not to any particular Article or Section or
other provision hereof or thereof;
(h) "including" (and with correlative meaning "include") means including
without limiting the generality of any description preceding such term, regardless of whether
words such as "without limitation" are expressly included in the applicable provision;
(i) relative to the determination of any period of time, "from" means "from and
including," "to" means "to but excluding" and "through" means "through and including";
0) unless otherwise indicated, reference to time shall always refer to Pacific
Prevailing Time; and reference to any "day" shall mean a calendar day, unless otherwise indicated;
and
(k) the term "or" is not exclusive, regardless of whether "and/or" is used in the
applicable provision.
ARTICLE II
EFFECTIVE DATE, TERM, AND EARLY TERMINATION
Section 2.1 Effective Date. This Agreement is effective as of the Effective Date. On
or prior to the Effective Date, each of the following has occurred: (a) both Parties have executed
and delivered this Agreement; (b) Buyer has received copies of all requisite resolutions and
incumbency certificates of Seller and any other documents evidencing all actions taken by Seller
to authorize the execution and delivery of this Agreement, such resolutions to be certified as of the
Effective Date by an authorized representative of Seller; and (b) Seller has received copies of all
requisite resolutions and incumbency certificates of Buyer authorizing the execution and delivery
of this Agreement, such resolutions to be certified as of the Effective Date by an authorized official
of Buyer.
Section 2.2 Term.
(a) Agreement Term. The term of this Agreement (the "Agreement Term")
shall commence on the Effective Date and end on the last day of the Delivery Term, or upon the
earlier termination of this Agreement in accordance with the terms hereof.
(b) Delivery Term. The initial delivery term of this Agreement (the "Initial
Delivery Term") shall begin on the Initial Delivery Date and shall continue uninterrupted through
11:59 pm on December 31, 2031, unless sooner terminated in accordance with the terms of this
Agreement. At the end of the Initial Delivery Term of this Agreement, the term of this Agreement
shall automatically extend for an additional ten (10) year period (the "Extended Delivery Term")
unless Seller provides written Notice of Termination pursuant to Section 2.2(c), of its election to
not automatically extend the term of this Agreement.
(c) Notice of Termination. This Agreement may be terminated by Seller at
the end of the Initial Delivery Term by providing written notice to the Buyer at least three hundred
sixty five (365) Calendar Days prior to the end of the Initial Delivery Term of this Agreement
("Notice of Termination').
Section 2.3 Survivability. The provisions of this ARTICLE II, ARTICLE X,
ARTICLE XI, Section 12.9 and Section 12.21 shall survive for a period of one year following the
termination of this Agreement. The provisions of ARTICLE IX shall survive for a period of four
(4) years following final payment made by Buyer hereunder or the expiration or termination date
of this Agreement, whichever is later. The provisions of ARTICLE V, ARTICLE VII, and
ARTICLE VIII shall continue in effect after termination to the extent necessary to provide for final
billing, adjustments, and deliveries related to any period prior to termination of this Agreement.
Section 2.4 Early Termination.
(a) Early Termination by Mutual Agreement. This Agreement may be
terminated by mutual written agreement of the Parties.
(b) Early Termination for Default. Upon the occurrence of a Default, the
Non -Defaulting Party may terminate this Agreement as set forth in Section 11.3.
(c) Early Termination for Force Majeure. This Agreement may be
terminated pursuant to Section 12.6(c).
(d) Effect of Termination. Except as otherwise provided herein, any early
termination of this Agreement under this Section 2.4 shall be without prejudice to the rights and
remedies of a Party for Defaults occurring prior to such termination.
ARTICLE III
OPERATION AND MAINTENANCE OF THE FACILITY
Section 3.1 General Operational Requirements. Seller shall, at all times:
(a) At its sole expense, operate and maintain the Facility (i) in accordance with
the Requirements and (ii) in a manner that is reasonably likely to result in a useful life for the
Facility of not less than the Delivery Term;
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(b) Use qualified and trained personnel for managing, operating and
maintaining the Facility and for coordinating with Buyer, and ensure that necessary personnel are
available on-site or on-call twenty-four (24) hours per day during the Delivery Term;
(c) Operate and maintain the Facility with due regard for the safety, security
and reliability of the Interconnection Facilities; and
(d) Operate and maintain the Facility in accordance with the CAISO Tariff and
other applicable requirements, including, but not limited to, submitting Facility technical and
modeling information to the CAISO, as may be required; and
(e) Comply with operating and maintenance standards recommended or
required by the Facility's equipment suppliers, and in accordance with Prudent Utility Practices.
Section 3.2 Operation and Maintenance Plan.
(a) Seller shall devise and implement a plan of inspection, maintenance, and
repair for the Facility and the components thereof in order to maintain such equipment in
accordance with Prudent Utility Practices, and shall keep records with respect to inspections,
maintenance, and repairs thereto. The aforementioned plan and all records of such activities shall
be available for inspection by Buyer during Seller's regular business hours upon reasonable notice.
(b) In addition to the other required and preventative maintenance actions
required by this Agreement, Seller shall: (i) conduct regular visual equipment inspections and log
significant parameters; (ii) identify and perform all preventative maintenance requirements for the
following calendar year; (iii) schedule and assign routine maintenance during operations, planned
outages, as well as maintenance that can be conducted in parallel; (iv) conduct periodic
maintenance to various equipment; (v) conduct periodic quality assurance and quality control
activities and inspections; and (vi) hire Subcontractors, as applicable to meet the Facility's
maintenance, betterment, and improvement needs. Notwithstanding the requirements of this
Section 3.2(b), Seller shall retain full discretion in budgeting and determining the priority in which
it performs preventive maintenance in relation to Seller's other projects and actions.
Section 3.3 Decommissioning and Other Costs. Buyer shall not be responsible for
any cost of decommissioning or demolition of the Facility or any environmental or other liability
associated with the decommissioning or demolition of the Facility without regard to the timing or
cause of the decommissioning or demolition.
Section 3.4 Environmental Credits. Seller shall, if applicable, obtain in its own name
and at its own expense all pollution or environmental credits or offsets necessary to operate the
Facility in compliance with any Requirement of Law; provided for the avoidance of doubt, Seller
shall not use any Environmental Attributes to satisfy the foregoing obligation.
Section 3.5 Outages.
(a) Buyer and Seller shall cooperate to minimize Scheduled Outages during
specified periods of time during each calendar year in accordance with Prudent Utility Practices
and this Section 3.5 (such periods, the "Major Maintenance Blockout"). No later than May 1
prior the commencement of each Contract Year, Buyer shall provide Seller with its specified Major
Maintenance Blockout. In the absence of such updated notification, the period of May 1 through
September 30 shall apply. Seller shall attempt to minimize its Scheduled Outages during the Major
Maintenance Blockout consistent with Prudent Utility Practices. No later than ninety (90) days
prior to the first day of the Delivery Period, and for each calendar year thereafter, no later than
four (4) months prior to the deadline for providing the CAISO Resource Adequacy filings and
proposed maintenance outages for the following year as described in the CAISO Tariff, Seller shall
provide Buyer and the Scheduling Coordinator with its non-binding written projection of all
Scheduled Outages for the succeeding calendar year (the "Scheduled Outage Projection")
reflecting Seller's attempt to minimize scheduled maintenance during the Major Maintenance
Blockout. In addition, Seller shall cooperate in good faith with maintenance scheduling requests
by Buyer consistent with Prudent Utility Practices, and Buyer and Seller shall strive to develop a
final Scheduled Outage plan no later than three (3) months prior to the deadline for providing the
CAISO Resource Adequacy filings and proposed maintenance outages for the following year as
described in the CAISO Tariff. Notwithstanding the process described herein for coordination of
Scheduled Outages between Buyer and Seller, both Buyer and Seller acknowledge that all
Scheduled Outages submitted to the CAISO may be accepted or rejected by the CAISO as
described in the CAISO Tariff. In the event the CAISO rejects a Scheduled Outage request
submitted by Seller, Buyer and Seller agree to cooperate in good faith to timely coordinate and
develop a revised final Scheduled Outage plan to account for any Scheduled Outages that are not
approved by the CAISO. The Scheduled Outage Projection shall include information concerning
all projected Scheduled Outages during such period, including (a) the anticipated start and end
dates of each Scheduled Outage; (b) a description of the maintenance or repair work to be
performed during the Scheduled Outage; and (c) the anticipated MW of operational capacity, if
any, during the Scheduled Outage. Seller shall use commercially reasonable efforts to notify
Buyer and its Scheduling Coordinator of any change in the Scheduled Outage Projection sixty-
five (65) days prior to first day of the month of the originally -scheduled date of the Scheduled
Outage but in no event shall Seller notify Buyer later than fifty-five (5 5) days prior to the first day
of the month of the originally -scheduled date of the Scheduled Outage. Seller shall use
commercially reasonable efforts to accommodate reasonable requests of Buyer with respect to the
timing of Scheduled Outages and shall, to the extent feasible and consistent with Prudent Utility
Practices, arrange for Scheduled Outages to occur between October 1 and May 1 of each year (or
such other period as reasonably determined by Buyer from time to time) and coincident, to the
extent known by Seller, with the Transmission Provider's planned transmission outages, but not
to overlap with the Major Maintenance Blackout. In the event of a System Emergency, Seller shall
consider and decide in its discretion if it is commercially reasonable to reschedule any Scheduled
Outages previously scheduled so that it does not occurs during the System Emergency. In addition,
Seller shall use commercially reasonable efforts to coordinate Scheduled Outages with a total
duration of 30 calendar days or less to occur within a single calendar month period.
(b) In addition to reporting outages to Buyer and the Scheduling Coordinator
within any applicable time period for reporting outages under the CAISO Tariff and applicable
rules and regulations of the CAISO, immediately upon identification of a situation likely to result
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in a Forced Outage occurring within a twenty-four (24) hour period that is likely to cause or require
removal of the Facility from service, or a reduction in the maximum output capability of the
Facility by one (1) MW or more from the value most recently recorded in the generation outage
reporting system for the CAISO, Seller shall notify Buyer and the Scheduling Coordinator. For
all other Forced Outages, Seller shall provide Buyer and the Scheduling Coordinator with as much
advance notice as practicably possible, but in all cases, shall notify Buyer and the Scheduling
Coordinator within 30 minutes after the commencement of the Forced Outage. Seller shall provide
detailed information concerning each Forced Outage, including (i) the start and anticipated end
dates of the Forced Outage; (ii) a description of the cause of the Forced Outage; (iii) a description
of the maintenance or repair work to be performed during the Forced Outage; and (iv) the
anticipated MW of operational capacity, if any, during the Forced Outage. Seller shall take all
reasonable measures and exercise commercially reasonable efforts to avoid Forced Outages and
to limit the duration and extent of any such outages.
(c) In addition to the requirements set forth in Section 3.5(a) and Section 3.5(b),
the Parties shall cooperate to develop mutually acceptable procedures for addressing Scheduled
Outages and any other outages arising in connection with the Facility.
(d) In the event of any inconsistency between the provisions in this Section 3.5
and any applicable requirements of CAISO, the provisions of CAISO shall govern.
ARTICLE IV
COMPLIANCE DURING OPERATIONS
Section 4.1 Buyers' Rights to Monitor in General. Buyer shall have the right, and
Seller shall permit Buyer and its Authorized Representative, and any other advisors, engineers and
consultants agreed by the Parties (where such agreement shall not be unreasonably withheld), to
observe, inspect, and monitor the operations and activities of the Facility; provided that such
activities on the part of Buyer and its Authorized Representative shall be coordinated with Seller
so as to not interfere with the Facility, and as to other advisors, engineers and consultants, such
third parties executing an agreement setting forth the terms and conditions required by the Parties,
including insurance, indemnity and non -disclosure terms. Seller shall cause its personnel,
consultants, and contractors to be available to, and cooperate in all reasonable respects with, Buyer
and its Authorized Representative, advisors, engineers, and consultants at reasonable times and
with prior notice for purposes of discussing any aspect of the Facility testing, performance,
operation, or maintenance thereof and Buyer's exercise of its rights under this Section 4.1.
Buyer's rights to access the Facility shall be subject to Seller's reasonable safety protocols.
Section 4.2 Effect of Review by Buyer. Any review by Buyer or a Buyer's Authorized
Representative of the operation or maintenance of the Facility, or observation of any testing, is
solely for the information of Buyer. Buyer shall have no obligation to share the results of any such
review or observations with Seller, nor shall any such review or the results thereof (whether or not
the results are shared with Seller), nor any failure to conduct any such review, nor any observation
of testing or failure to observe testing, relieve Seller from any of its obligations under this
Agreement. By making any such review or observing any such testing, Buyer makes no
representation as to the economic and technical feasibility, operational capability or reliability of
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the Facility. Seller shall in no way represent to any third party that any such review by Buyer or
Buyer's Authorized Representative of the Facility thereof, including any review of the operation
or maintenance, is a representation by Buyer as to the economic and technical feasibility,
operational capability or reliability of the Facility. Seller is solely responsible for the economic
and technical feasibility, operational capability and reliability thereof.
Section 4.3 No Liens. Except as otherwise permitted by this Agreement: (a) the Facility
shall be owned by Seller during the Agreement Term; and (b) Seller shall not sell or otherwise
dispose of or create, incur, assume or permit to exist any Lien on any portion of the Facility or any
other property or assets that are related to the operation, maintenance and use of the Facility
without the prior written approval of Buyer, which such written approval shall not be unreasonably
withheld.
ARTICLE V
PURCHASE AND SALE OF PRODUCT
Section 5.1 Purchases by Buyer. Subject to the terms and conditions of this
Agreement, during the Delivery Term, Buyer will purchase and receive all the Products produced
by or associated with the Facility at the Contract Price and in accordance with Appendix A, and
Seller shall supply and deliver to Buyer all the Products produced by or associated with the
Facility. At its sole discretion, Buyer may during the Delivery Term re -sell or use for another
purpose all or a portion of the Products, provided that no such re -sale or use shall relieve Buyer of
any obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer,
bid, or otherwise submit the Product from the Facility after the Point of Delivery for resale in the
market or to any third party, and retain and receive any and all related revenues. Buyer has no
obligation to purchase from Seller any Products for which the associated Facility Energy is not or
cannot be delivered to the Point of Delivery as a result of an outage of the Facility, a Force Majeure
Event, or a Curtailment Period.
Section 5.2 Sale of Environmental Attributes. During the Delivery Term, Seller shall
sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all Environmental
Attributes attributable to the Facility Energy generated by the Facility.
ARTICLE VI
TRANSMISSION AND SCHEDULING; TITLE AND RISK OF LOSS
Section 6.1 Delivery.
(a) Energy and Capacity. Subject to the provisions of this Agreement, during
the Delivery Term, Seller shall supply and deliver the Products to Buyer at the Point of Delivery,
and Buyer shall take delivery of the Products at the Point of Delivery in accordance with the terms
of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges
imposed in connection with the delivery of Facility Energy to the Point of Delivery, including
without limitation, Station Use, Electrical Losses, and any operation and maintenance charges
imposed on Seller by the Transmission Provider directly relating to the Facility's operations.
Buyer shall be responsible for all costs, charges and penalties, if any, imposed in connection with
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the delivery of Facility Energy at and after the Point of Delivery, including without limitation
transmission costs and transmission line losses. Throughout the Delivery Term, Buyer shall
Schedule and dispatch the Facilities in accordance with Prudent Utility Practices and shall have
the exclusive right to bid or schedule all Products from each Facility, and provide (or cause to be
provided), at its own expense, and will be solely responsible for the performance of all Scheduling
Coordinator services required under the term of this Agreement, the CAISO Tariff, applicable
protocols and scheduling practices, and any other applicable law, rule or regulatory requirement
applicable to Scheduling Coordinators, for the Facilities. The Facility Energy will be scheduled
and dispatched with the CAISO by Buyer (or Buyer's designated Scheduling Coordinator for the
Facility) in accordance with Appendix C.
(b) Environmental Attributes. All Environmental Attributes associated with
the Facility during the Delivery Term are exclusively dedicated to and will be conveyed to Buyer.
Seller represents and warrants that Seller holds the rights to all Environmental Attributes from the
Facility, and Seller agrees to convey and hereby conveys all such Environmental Attributes to
Buyer as included in the delivery of the Product from the Facility.
Section 6.2 Scheduling Coordinator; CAISO Cost Allocation. Buyer or Buyer's
designee shall act as Scheduling Coordinator for the Facility and shall have the full right and
obligation to Schedule and dispatch all Facility Energy and capacity in accordance with the CAISO
Tariff and other applicable requirements. Seller shall provide the capability to implement dispatch
order, including adjustments to operating constraints, such as ramp rates, megawatt output, and
megavar output, in real-time by means of set points received by the SCADA system or Facility
controller of Seller, provided that the dispatch order is consistent with the Facility's operational
characteristics as then -currently modeled in the CAISO Master File. The Facility shall have one
or more designed resource IDs with CAISO for scheduling purposes, as set forth in the CAISO
Master File. Buyer shall be financially responsible for and shall pay for all CAISO Costs; provided
however, that notwithstanding the foregoing, Seller shall assume all liability and reimburse Buyer
for any and all costs or charges under a Settlement Statement incurred by Buyer because of Seller's
failure to perform any covenant or obligation set forth in this Agreement.
Section 6.3 Interconnection Facilities. Seller shall maintain an Interconnection
Agreement and applicable Interconnection Facilities with the Transmission Provider to enable the
Facility to interconnect with the Transmission System at the Point of Delivery. Seller shall be
solely responsible for and pay all costs and charges arising under the Interconnection Agreement
in compliance with the Interconnection Agreement and applicable rules and requirements in place
throughout the Delivery Term.
Section 6.4 Forecasting. Seller shall provide the forecasts described below at its sole
expense and in a format reasonably acceptable to Buyer (or Buyer's designee). Seller shall use
reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the
requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be
prepared, in accordance with Prudent Operating Practices.
(a) Annual Forecast of Energy. No less than forty-five (45) days before (i) the
first day of the first Contract Year of the Delivery Term and (ii) at the beginning of each calendar
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year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer
a non-binding forecast of each month's average -day expected Facility Energy, and associated
hydrological storage, for the following calendar year in a form reasonably requested by Buyer.
(b) Monthly Forecast of Energy and Available Generating Capacity. No less
than thirty (30) days before the Initial Delivery Date, and thereafter ten (10) Business Days before
the beginning of each month during the Delivery Term, Seller shall provide to Buyer a non-binding
forecast of the hourly expected Facility Energy, hydrological storage, and Available Generating
Capacity for each day of the following month in a form reasonably requested by Buyer ("Monthly
Delivery Forecast").
(c) Day -Ahead Forecast. By 5:30 AM Pacific Prevailing Time on the Business
Day immediately preceding the date of delivery, or as otherwise specified by Buyer consistent
with Prudent Operating Practice, Seller shall provide Buyer with a non-binding forecast of
(i) Available Generating Capacity and (ii) environmental requirements, including minimum water
release requirements, in each case, for each hour of the immediately succeeding day ("Day -Ahead
Forecast"). A Day -Ahead Forecast provided in a day prior to any non -Business Day(s) shall
include non-binding forecasts for the immediate day, each succeeding non -Business Day and the
next Business Day. Each Day -Ahead Forecast shall clearly identify, for each hour, Seller's non-
binding best estimate of (i) the Available Generating Capacity and (ii) applicable requirements and
minimum water release requirements.
(d) Throughout the Delivery Term, Seller shall provide to Buyer and the
Scheduling Coordinator the following data on a real-time basis, and in a format that reasonably
allows Buyer and the Scheduling Coordinator to copy, paste or otherwise use such data:
(i) Read-only and/or write access via secure login credentials to Energy
output information and operational information collected by the SCADA system for the
Facility; provided that if Buyer or the Scheduling Coordinator is unable to access the
Facility's SCADA system, then upon written request from Buyer or the Scheduling
Coordinator, Seller shall provide Energy output information and operational information
through such other format as may be mutually acceptable to Seller and Buyer, all as may
be updated from time to time based on advancements in technology in accordance with
Prudent Utility Practices; and
(ii) Read-only access to all Electric Metering Devices.
(e) Seller, Buyer and the Scheduling Coordinator shall mutually develop
forecasting and Scheduling procedures in addition to those set forth in this Section 6.4 and
Appendix C, in order to administer the provisions of this Agreement in compliance with all
applicable Requirements and requirements of the Transmission Provider, CAISO, NERC, WECC,
and any balancing authority involved in the Scheduling of Energy and capacity under this
Agreement. Seller, Buyer and the Scheduling Coordinator shall promptly cooperate to make any
reasonably necessary and appropriate modifications to such forecasting or Scheduling procedures
as may be required from time to time.
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Section 6.5 Curtailment.
(a) Seller shall reduce deliveries of Facility Energy to the Point of Delivery as
soon a reasonably possible upon notice from the Scheduling Coordinator, the CAISO, a
Transmission Provider, or any balancing authority or reliability entity during Curtailment Periods.
Buyer shall be excused from receiving any Facility Energy from Seller and shall not be obligated
to pay Seller for the amount of reduced Facility Energy arising during a Curtailment Period. If
required by the Scheduling Coordinator, the CAISO, a Transmission Provider, any balancing
authority or reliability entity, or if requested by Buyer, Seller shall provide the dispatch and
operating capability to implement curtailments and adjust ramp rates, megawatt output, and (if
applicable) megavar output in real-time by means of setpoints received by the SCADA system or
Facility controller of Seller.
(b) Separate from the curtailments described in Section 6.5(a), Buyer may,
upon delivering curtailment instruction to Seller, curtail deliveries of Facility Energy at any time
and for the duration specified by Buyer (`Buyer Curtailment"). For the avoidance of doubt, if
the curtailment is resulting from Buyer's bidding and scheduling strategies and activities, including
Buyer's strategies to minimize Buyer's exposure to negative pricing, the Facility will be deemed
to have been curtailed pursuant to this Section 6.5(b), for which Buyer will be required to
reimburse Seller as set forth herein. Buyer, Buyer's real-time operators or the Scheduling
Coordinator shall provide to Seller a dispatch notice or instruction in accordance with CAISO
scheduling timelines set forth in the CAISO Tariff, or in accordance with the Scheduling and
dispatch procedures set forth in Appendix C, of its request for curtailment under this Section 6.5(b),
and Seller shall comply with such request in accordance with Prudent Utility Practices, provided
that the dispatch order is consistent with the Facility's operational characteristics as then -currently
modeled in the CAISO Master File. The curtailment notice to Seller shall indicate the amount of
any Facility Energy to be produced in each applicable Settlement Interval. Seller shall respond to
curtailment notices (including the end of such curtailment periods) in accordance with Prudent
Utility Practices. Seller shall provide the capability to implement curtailment notices, including
adjustments to operating constraints, such as ramp rates, megawatt output, and megavar output, in
real-time by means of set points received by the SCADA system or Facility controller of Seller.
Buyer shall compensate Seller for any Deemed Generated Energy by accounted for Deemed
Generated Energy as Monthly Base Output, as further set forth in Appendix A.
(c) "Deemed Generated Energy" means the amount of Facility Energy,
expressed in MWh, that the Facility would have produced and delivered to the Point of Delivery,
but for a curtailment event arising under Section 6.5(b), which amount shall be equal to (i) Gross
Facility Energy, less (ii) the amount of Facility Energy delivered to the Point of Delivery during
the curtailment or other event, if any; provided that, if the applicable difference calculated pursuant
to the formula provided above is negative, the Deemed Generated Energy shall be zero (0).
(d) Within thirty (30) days after any curtailment pursuant to Section 6.5(a) and
Section 6.5(b), Buyer shall provide Seller with all necessary information needed and reasonably
requested by Seller, whether from Buyer or CAISO, including CAISO "flags" with respect to the
curtailments, for Seller to determine if compensation is owed to Seller by Buyer pursuant to
Section 6.5(b).
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Section 6.6 No Payment. Buyer shall not be obligated to pay Seller for any Facility
Energy that is not or cannot be delivered to the Point of Delivery for any reason (including Force
Majeure), except as otherwise stated in Section 6.5(b).
Section 6.7 Title; Risk of Loss. As between the Parties, Seller shall be deemed to be
in exclusive control (and responsible for any damages or injury caused thereby) of all Energy prior
to the Point of Delivery, and Buyer shall be deemed to be in exclusive control (and responsible for
any damages or injury caused thereby), of the Energy at and from the Point of Delivery. Seller
warrants that it will deliver all Products, including all of the associated Environmental Attributes,
to Buyer free and clear of all Liens created by any Person other than Buyer.
Section 6.8 RPS and EPS Compliance.
(a) Seller warrants and guarantees that during the Delivery Period the Facility
Energy produced by each Facility that is CEC Certified as of the Effective Date, and at all times
thereafter until the expiration or earlier termination of the Agreement, the Facility (including the
Facility Energy and the associated Environmental Attributes) shall be both RPS Compliant and
EPS Compliant (if EPS Law is applicable to the Facility), except if the Facility fails to be RPS
Compliant or EPS Compliant (if EPS Law is applicable to the Facility) as a result of (i) a Change
in Law making it impossible, after the use of commercially reasonable efforts as required under
Section 6.8(b), for the Facility to be RPS Compliant or EPS Complaint, or (ii) any repeal of the
RPS Law or EPS Law.
(b) If a Change in Law occurs after the Initial Delivery Date that (i) does not
repeal the RPS Law or the EPS Law, (ii) causes the Facility to cease to be RPS Compliant and/or
EPS Compliant and (iii) reduces the value to Buyer of the Environmental Attributes, then Seller
shall use commercially reasonable efforts to comply with such Change in Law and cause the
Facility to be RPS Compliant and EPS Compliant. To the extent a Change in Law occurs after the
execution of this Agreement that causes this representation and warranty to be materially false or
misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts
to comply with such Change in Law. The term "commercially reasonable efforts" as used in this
Section 6.8 means efforts consistent with the subject to Section 6.9.
(c) Subject to Section 7.1, Seller shall also take all other reasonable actions
necessary to ensure that the Facility Energy is tracked for purposes of satisfying the RPS Law, as
may be amended or supplemented by the PUC or CEC from time to time.
Section 6.9 Compliance Expenditure Cap. If a Change in Law occurring after the
Effective Date has increased Seller's known or reasonably expected costs to comply with Seller's
obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating
Buyer's use of (as applicable) any Products, then the Parties agree that the maximum aggregate
amount of out-of-pocket costs and expenses ("Compliance Costs") Seller shall be required to bear
during the Delivery Term to comply with all of such obligations shall be capped at twenty-five
thousand dollars ($25,000.00) per MW of Contract Capacity ("Compliance Expenditure Cap").
Seller's internal administrative costs associated with obtaining, maintaining, conveying or
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effectuating Buyer's use of (as applicable) any Product are excluded from the Compliance
Expenditure Cap.
Any actions required for Seller to comply with its obligations set forth in the first paragraph above,
the Compliance Costs of which will be included in the Compliance Expenditure Cap, shall be
referred to collectively as the "Compliance Actions." Seller will determine, in Seller's reasonable
discretion, the implementation schedule for Compliance Actions.
If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance
Expenditure Cap in order to take any Compliance Action Seller shall provide Notice to Buyer of
such anticipated Compliance Costs.
Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not
obligated to take any Compliance Actions described in the Notice) and shall, within such time,
either (1) agree to reimburse Seller for all of the Compliance Costs that exceed the Compliance
Expenditure Cap (such Buyer -agreed upon costs, the "Accepted Compliance Costs"), or (2)
waive Seller's obligation to take such Compliance Actions, or any part thereof for which Buyer
has not agreed to reimburse Seller. If Buyer does not respond to a Notice given by Seller under
this Section 6.9 within sixty (60) days after Buyer's receipt of same, Buyer shall be deemed to
have waived its rights to require Seller to take the Compliance Actions that are the subject of the
Notice, and Seller shall have no further obligation to take, and no liability for any failure to take,
these Compliance Actions for the remainder of the Term.
If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall endeavor
in good faith to expeditiously implement the Compliance Actions covered by the Accepted
Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller's
actual costs to effect the Compliance Actions, not to exceed the Accepted Compliance Costs,
within sixty (60) days of Buyer's receipt of any invoice from Seller.
ARTICLE VII
ENVIRONMENTAL ATTRIBUTES
Section 7.1 Transfer of Environmental Attributes. For and in consideration of Buyer
entering into this Agreement, and in addition to the agreement by and between Buyer and Seller
to purchase and sell Facility Energy on the terms and conditions set forth herein, Seller shall
transfer to Buyer, and Buyer shall receive from Seller, all right, title, and interest in and to all
Environmental Attributes, whether now existing or acquired by Seller or that hereafter come into
existence or are acquired by Seller during the Delivery Term associated with the Facility Energy.
Seller agrees to transfer and make such Environmental Attributes available to Buyer immediately
to the fullest extent allowed by applicable law upon Seller's production or acquisition of the
Environmental Attributes. Seller represents and covenants that it has not assigned, transferred,
conveyed, encumbered, sold or otherwise disposed of and shall not assign, transfer, convey,
encumber, sell or otherwise dispose of all or any portion of such Environmental Attributes to any
Person other than Buyer or attempt to do any of the foregoing with respect to any of the
Environmental Attributes except with respect to any sales by Seller pursuant to Section 5.1. Buyer
and Seller acknowledge and agree that the consideration for the transfer of Environmental
Attributes is contained within the Contract Price.
Section 7.2 Reporting of Ownership of Environmental Attributes. During the
Agreement Term, Seller shall not report to any Person that the Environmental Attributes granted
hereunder to Buyer belong to any Person other than Buyer, and Buyer may report under any
program that such Environmental Attributes purchased hereunder belong to it except with respect
to any sales by Seller pursuant to Section 5. 1, and during a Force Majeure.
Section 7.3 Environmental Attributes. Upon the request of Buyer or Buyer's
Authorized Representative, Seller shall take all reasonable actions and execute all documents or
instruments necessary under applicable law regulations, guidebooks promulgated by the CEC or
PUC, bilateral arrangements or other voluntary Environmental Attribute programs of any kind, as
applicable, to maximize the attribution, accrual, realization, generation, production, recognition
and validation of Environmental Attributes throughout the Agreement Term and Seller shall file
with the CEC and any other applicable Persons all materials and documents required to
demonstrate that the Facility is entitled to be CEC Certified.
Section 7.4 WREGIS. In furtherance and not in limitation of Section 7.3, prior to
Seller's first delivery of Facility Energy hereunder, Seller shall register with WREGIS to evidence
the transfer of any Environmental Attributes under applicable law or any voluntary program
("WREGIS Certificates") associated with Facility Energy in accordance with WREGIS reporting
protocols and WREGIS Operating Rules and shall register the Facility with WREGIS. After the
Facility is registered with WREGIS, at the option of Buyer's Authorized Representative, Seller
shall transfer WREGIS Certificates using the Forward Certificate Transfer method as described in
WREGIS Operating Rules from Seller's WREGIS account to Buyer's WREGIS accounts, as
designated by Buyer's Authorized Representative. Seller shall be responsible for WREGIS
Certificate issuance fees and WREGIS expenses associated with registering the Facility,
maintaining its account, acquiring and arranging for a Qualified Reporting Entity ("QRE") and
any applicable QRE agreements, and transferring WREGIS Certificates to Buyer, Buyer's
Authorized Representative, or any other designees. Buyer shall be responsible for its WREGIS
expenses associated with maintaining its own account, or the accounts of its designees, if any, and
subsequent transferring or retiring by it of WREGIS Certificates, or Seller's fees for the retirement
of WREGIS Certificates on behalf of Buyer. Forward Certificate Transfers shall occur monthly
based on the certificate creation timeline established by the WREGIS Operating Rules. Seller shall
be responsible for, at its expense, validating and disputing data with WREGIS prior to WREGIS
Certificate creation each Month. In addition to the foregoing, Seller shall document the production
and transfer of Environmental Attributes under this Agreement to Buyer by delivering to Buyer an
attestation in substantially the form attached as Appendix D for the Environmental Attributes
associated with Facility Energy, if any, measured in whole MWh, or by such other method as
Buyer shall designate.
Section 7.5 Further Assurances. In addition to and not in limitation of Section 7.4,
Seller shall document the production of Environmental Attributes by delivering with each invoice
to Buyer an attestation for the Environmental Attributes associated with Facility Energy, if any,
for the preceding Month in the form of the attestation set forth as Appendix D. At Buyer's
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Authorized Representative's request, the Parties shall execute all reasonable documents and
instruments and take commercially reasonable actions in order to effect the transfer of the
Environmental Attributes specified in this Agreement to Buyer and to maximize the attribution,
accrual, realization, generation, production, recognition and validation of Environmental
Attributes throughout the Agreement Term. 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 shall not be recorded, each Party shall promptly
cooperate in taking all reasonable actions necessary so that such transfer can be recorded. Each
Party shall promptly give the other Party copies of all documents it submits to CAMD to effectuate
any transfers.
ARTICLE VIII
CAPACITY RIGHTS
Section 8.1 Capacity Rights. For and in consideration of Buyer entering into this
Agreement, and in addition to the agreement by Buyer and Seller to purchase and sell Facility
Energy and Environmental Attributes on the terms and conditions set forth herein, Seller hereby
transfers to Buyer, and Buyer hereby accepts from Seller, all of Seller's rights, title and interest in
and to the Capacity Rights. The consideration for the transfer of Capacity Rights, if any, is
contained within the Contract Price. In no event shall Buyer have any obligation or liability
whatsoever for any debt pertaining to the Facility by virtue of Buyer's ownership of the Capacity
Rights or otherwise. Throughout the Delivery Term, Seller shall use commercially reasonable
efforts to maintain eligibility for Full Capacity Deliverability Status for the Facility from the
CAISO and shall perform all actions necessary to ensure that the Facility qualifies to provide
Resource Adequacy Benefits to Seller.
Section 8.2 Covenant Regarding Capacity Rights. Seller represents and covenants
that it has not assigned, transferred, conveyed, encumbered, sold or otherwise disposed of and shall
not in the future assign, transfer, convey, encumber, sell or otherwise dispose of any of the
Capacity Rights to any Person other than Buyer or attempt to do any of the foregoing with respect
to any of the Capacity Rights. During the Agreement Term, Seller shall not report to any Person
that any of the Capacity Rights belong to any Person other than Buyer. Buyer may, at its own risk
and expense, report to any Person that the Capacity Rights belongs to it.
Section 8.3 Further Assurances. Seller shall execute and deliver such documents and
instruments and take such other action as reasonably required by the CAISO and as Buyer's
Authorized Representative may reasonably request to effect recognition and transfer of the
Capacity Rights to Buyer. Seller shall bear the costs associated therewith.
Section 8.4 Resource Adequacy Failure.
(a) RA Deficiency Determination. For each RA Shortfall Month, Seller shall
pay to Buyer the RA Deficiency Amount as liquidated damages or provide Replacement RA, in
each case, as the sole and exclusive remedy for the Capacity Rights Seller failed to convey to
Buyer.
(b) RA Deficiency Amount Calculation. Commencing on the Initial Delivery
Date, for each RA Shortfall Month, Seller shall pay to Buyer an amount (the "RA Deficiency
Amount") equal to the product of the difference, expressed in kW, of (i) the Net Qualifying
Capacity for such month, minus (ii) the amount of Resource Adequacy Capacity supplied from the
Facility for such month, multiplied by the RA Capacity Rate; provided that Seller may, as an
alternative to paying RA Deficiency Amounts, provide Replacement RA in the amount of (X) the
Net Qualifying Capacity with respect to such month, minus (Y) the amount of Resource Adequacy
Capacity supplied from the Facility with respect to such month, provided that any Replacement
RA capacity is communicated by Seller to Buyer with Replacement RA product information in a
written notice at least sixty-five (65) days before the relevant deadlines for the corresponding
Compliance Showings applicable to the relevant Showing Month.
(c) Option to Provide Replacement RA. If Seller desires to provide
replacement Resource Adequacy Capacity for any Showing Month from a different generating
unit other than the Facility (the "Replacement RA"), then Seller may provide Buyer with
Replacement RA from one or more replacement units, provided that in each case the Replacement
RA is supplied from like -for -like replacement units that provide Buyer with equivalent Capacity
Attributes as the Facility.
(d) Availability Standards. Seller agrees that the Facility may be subject to the
terms of the Availability Standards, Non -Availability Charges, and Availability Incentive
Payments as contemplated in the CAISO Tariff. Furthermore, the Parties agree that any
Availability Incentive Payments are for the benefit of the Buyer and for Buyer's account and that
any Non -Availability Charges are the responsibility of the Buyer and for Buyer's account;
provided however, that notwithstanding the foregoing, Seller shall assume all liability and
reimburse Buyer for any and all Non -Availability Charges incurred by Buyer because of Seller's
failure to perform any covenant or obligation set forth in this Agreement.
ARTICLE IX
BILLING; PAYMENT; AUDITS; METERING; ATTESTATIONS; POLICIES
Section 9.1 Billing and Payment. Billing and payment for all Products shall be as set
forth in this ARTICLE IX.
Section 9.2 Calculation of Energy Delivered; Invoices and Payment.
(a) Not later than the tenth (10th) day of each Month, commencing with the
next Month following the Month in which Facility Energy is first delivered by Seller and received
by Buyer pursuant to the terms and conditions of this Agreement, Seller shall deliver to Buyer an
invoice showing the amount due for the preceding Month from Buyer to Seller for Facility Energy,
Capacity Rights and Environmental Attributes. Seller shall calculate the amount of Facility
Energy from meter readings at the Electric Metering Devices maintained pursuant to Section 9.6,
adjusting for any applicable station load, transformation losses and transmission losses to the Point
of Delivery in accordance with a methodology agreed to by Buyer. Each invoice shall show the
title of the Agreement and, if applicable, the Agreement number, the name, address and identifying
information of Seller and the identification of material, equipment or services covered by the
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invoices, and shall be sent to the address set forth in Appendix F or such other address as Buyer
may provide to Seller. Seller shall separately provide in such invoice for any other amounts due
to Seller, including amounts due under Section 6.5. Any electronic information delivered by Seller
under this ARTICLE IX shall be in a format such as Microsoft Excel (or its equivalent) that allows
Buyer to cut, paste or otherwise readily use and work with such information or documentation or
as otherwise mutually agreed by the Parties.
(b) Concurrently with the delivery of each Monthly invoice, Seller shall deliver
attestations of all Environmental Attribute transfers (including those transferred with WREGIS)
substantially in the form set forth in Appendix D.
(c) Subject to Section 9.2(d) and Section 9.3, not later than the twenty-fifth
(25th) day after receipt by Buyer of Seller's Monthly invoice (or the next succeeding Business
Day, if the twenty-fifth (25th) day is not a Business Day), Buyer shall pay to Seller, by wire transfer
of immediately available funds to an account specified by Seller or by any other means agreed to
by the Parties from time to time, the amount set forth as due in such Monthly invoice.
(d) Notwithstanding Section 9.2(c), if Buyer believes that it has insufficient
information to verify the amount of Deemed Generated Energy calculated by Seller in the invoice,
or if Buyer requires additional time to verify such information, Buyer shall notify Seller thereof
within twenty-five (25) days after receipt of an invoice from Seller, and timely pay the amounts
set forth in such Monthly invoice not related to Deemed Generated Energy. Within thirty (30)
days after receipt by Buyer of additional information regarding such Deemed Generated Energy
calculation, or on the date mutually agreed to by the Parties, Buyer shall pay to Seller the amount
specified in the invoice or notify Seller of any discrepancies with respect to its calculation of the
Deemed Generated Energy, in which event such invoice shall be subject to the provisions of
Section 9.3.
(e) Seller shall, in subsequent invoices, adjust previously invoiced amounts to
reflect (i) adjustments pursuant to Section 9.3, or (ii) adjustments, reconciliations or final
settlements with WREGIS occurring after the date of the initial invoice, or any other adjustments
agreed to by the Parties (which shall be without interest of any kind), provided that Buyer shall
not be required to make invoice payments if the invoice is received more than one (1) year after
the billing period.
(f) Except with respect to disputed invoices where the dispute is first raised
within six months after the applicable Monthly billing period and for any adjustments made
pursuant to Section 9.2(e) and Section 9.6(a), Buyer shall not be required to make invoice
payments if the invoice is received more than six (6) Months after the applicable Monthly billing
period.
Section 9.3 Disputed Invoices. If any portion of any invoice is in dispute, the
undisputed amount shall be paid when due. The Party disputing a payment shall promptly notify
the other Party of the basis for the dispute, setting forth the details of such dispute in reasonable
specificity. Disputes shall be discussed directly by the Parties' Authorized Representatives, who
shall use reasonable efforts to amicably and promptly resolve such Disputes, and any failure to
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agree shall be subject to resolution in accordance with Section 12.3. Upon resolution of any
Dispute, if all or part of the disputed amount is later determined to have been due, then the Party
owing such payment or refund shall pay within ten (10) days after receipt of notice of such
determination the amount determined to be due plus interest thereon at the Interest Rate from the
due date until the date of payment. For purposes of this Section 9.3, "Interest Rate" shall mean
the lesser of (i) two percent (2%) above the per annum Prime Rate reported daily in The Wall Street
Journal, or (ii) the maximum rate permitted by applicable Requirements of Law.
Section 9.4 Right of Setoff. In addition to any right now or hereafter granted under
applicable law and not by way of limitation of any such rights, each Party shall have the right at
any time or from time to time without notice to other Party or to any other Person, any such notice
being hereby expressly waived, to set off against any amount due a Party from the other Party
under this Agreement or otherwise any amount due such Party from the other Party under this
Agreement or otherwise, including any amounts due because of breach of this Agreement or any
other obligation.
Section 9.5 Records and Audits. Seller shall maintain, and the Authorized Auditors
shall have access to, all records and data pertaining to the performance and management of this
Agreement (including compliance with the Requirements) and related Subcontracts, and as
necessary to properly reflect all costs claimed to have been incurred hereunder and thereunder,
including (a) in their original form, all (i) documents provided to Seller in the ordinary course of
business for the Facility, (ii) documents for billing, costs, metering, and Environmental Attributes,
(iii) books, records, documents, reports, deliverables, employee time sheets, accounting
procedures and practices, and (iv) records of financial transactions, and (b) other evidence,
regardless of form (for example, machine readable media such as disk or tape, etc.) or type (for
example, databases, applications software, database management software, or utilities). If Seller
is required to submit cost or pricing data in connection with this Agreement, Seller shall maintain
all records and documents necessary to permit adequate evaluation of the cost or pricing data
submitted, along with the computations and projections used. In the event of a Dispute, records
that relate to the Agreement, Dispute, litigation or costs, or items to which an audit exception has
been taken, shall be maintained by both Buyer and Seller. All records shall be retained, and shall
be subject to examination and audit by the Authorized Auditors, for a period of not less than four
(4) years following final payment made by Buyer hereunder, the expiration or termination date of
this Agreement, or final settlement of all disputes, claims, or litigation, whichever is later. Seller
shall make said records or, to the extent accepted by the Authorized Auditors, photographs, micro-
photographs, or other authentic reproductions thereof, available to the Authorized Auditors at
Seller's principal business office or any other of Seller's offices as mutually agreed upon by Buyer
and Seller, at all reasonable times and without charge. The Authorized Auditors may reproduce,
photocopy, download, transcribe, and the like any such records. Any information provided by
Seller on machine-readable media shall be provided in a format accessible and readable by the
Authorized Auditors. Seller shall not, however, be required to furnish the Authorized Auditors
with commonly available software. Seller shall be subject at any time with fourteen (14) days
prior written notice to audits or examinations by Authorized Auditors, relating to all billings and
required to verify compliance with all Agreement requirements relative to practices, methods,
procedures, performance, compensation, and documentation. Examinations and audits shall be
performed using generally accepted auditing practices and principles and applicable governmental
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audit standards. If Seller utilizes or is subject to Federal Acquisition Regulation, Part 30 and 31,
et seq. accounting procedures, or a portion thereof, examinations and audits shall utilize such
information. To the extent that an Authorized Auditor's examination or audit reveals inaccurate,
incomplete or non-current records, or records are unavailable, the records shall be considered
defective. Consistent with standard auditing procedures, Seller shall be provided fifteen (15) days
to review an Authorized Auditor's examination results or audit and respond to Buyer prior to the
examination's or audit's finalization and public release. Seller shall contractually require all
Subcontractors performing services under this Agreement to comply with the provisions of this
Section 9.5 by inserting this Section 9.5 into each Subcontract.
Section 9.6 Electric Metering Devices.
(a) Facility Energy shall be measured using a CAISO-approved revenue -
quality Electric Metering Device that complies with the CAISO Tariff and relevant protocols and
is dedicated exclusively to the Facility. The Electric Metering Device may be installed on the low -
side of Seller's transformer and will include adjustments to reflect losses to the Point of Delivery.
Seller shall arrange and bear all costs associated with the installation of the Electric Metering
Devices needed for the registration, recording and transmission of information regarding the
Facility Energy. Seller hereby agrees to provide a mutually agreed set of meter data to Buyer,
which data shall be accessible to, and usable by, Buyer. In addition to providing Buyer with its
meter data, Seller shall use commercially reasonable efforts to support any efforts by Buyer to
obtain CAISO meter data applicable to the Facility and all inspection, testing and calibration data
and reports from the CAISO. If the CAISO makes any adjustment to any CAISO meter data for a
given time period not exceeding three (3) months, Seller agrees that it shall submit revised Monthly
invoices, pursuant to this ARTICLE IX covering the entire applicable time period in order to fully
conform such adjustments to the meter data. Seller shall submit any revised invoices no later than
thirty (30) days after the date on which the CAISO provides Seller with binding adjustments to the
meter data.
(b) Seller or its Authorized Representative, at no expense to Buyer, shall inspect
and test all Electric Metering Devices upon installation and at least annually thereafter. Seller
shall provide Buyer with reasonable advance notice of, and permit representatives of Buyer to
witness and verify, such inspections and tests. Upon reasonable request by Buyer, Seller or its
Authorized Representative shall perform additional inspections or tests of any Electric Metering
Device and shall permit a qualified representative of Buyer to inspect or witness the testing of any
Electric Metering Device. The actual expense of any additional inspection or testing reasonably
requested shall be borne by Seller. Seller shall provide copies of any inspection or testing reports
to Buyer.
(c) If an Electric Metering Device fails to register, or if the measurement made
by an Electric Metering Device is found upon testing to be inaccurate by more than plus or minus
one percent (+/- 1.0%), an adjustment shall be made to correct all measurements made by the
inaccurate or defective Electric Metering Device for both the amount of the inaccuracy and the
period of the inaccuracy, such adjustment to be made by the Scheduling Coordinator. To the extent
that the adjustment period covers a period of deliveries for which payment has already been made
by Buyer, Buyer shall use the corrected measurements as determined in accordance with this
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Section 9.6 to recompute the amount due for the period of the inaccuracy and shall subtract the
previous payments by Buyer for this period from such recomputed amount. If the difference is a
positive number, the difference shall be paid by Buyer to Seller; if the difference is a negative
number, that difference shall be paid by Seller to Buyer, or at the direction of Buyer, may take the
form of an offset to payments due to Seller from Buyer. Payment of such difference by the owing
Party shall be made not later than thirty (30) days after the owing Party receives notice of the
amount due, unless Buyer elects payment via an offset.
Section 9.7 Taxes. Seller shall be responsible for and shall pay, before the due dates
therefor, any and all federal, state, and local Taxes incurred by it as a result of entering into this
Agreement and all Taxes imposed or assessed with respect to the Facility, or any other assets of
Seller, the Products or the transaction arising before or at the Point of Delivery. Buyer shall pay
or cause to be paid all Taxes on or with respect to the Products or the transaction from (but
excluding) the Point of Delivery to Buyer. If Seller is required by a Requirement of Law to remit
or pay Taxes that are the responsibility of Buyer hereunder, Buyer shall promptly reimburse Seller
for such Taxes. If Buyer is required by Requirement of Law to remit or pay Taxes that are Seller's
responsibility hereunder, Buyer may deduct such amounts from payments to Seller hereunder; if
Buyer elects not to deduct such amounts from Seller's payments, Seller shall promptly reimburse
Buyer for such amounts upon request. Nothing shall obligate or cause a Party to pay or be liable
to pay any Taxes for which it is exempt under law. A Party that is exempt at any time and for any
reason from one or more Taxes shall bear the risk that such exemption shall be lost or the benefit
of such execution be reduced.
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 10.1 Representations and Warranties of Buyer. Buyer makes the following
representations and warranties to Seller as of the Effective Date and continuing throughout the
Delivery Term:
(a) Buyer is a validly existing California joint powers authority, and has the
legal power and authority to own its properties, to carry on its business as now being conducted
and to enter into this Agreement, and to carry out the transactions contemplated hereby, and to
perform and carry out all covenants and obligations on its part to be performed under and pursuant
to this Agreement.
(b) The execution, delivery and performance by Buyer of this Agreement
(i) have been duly authorized by all necessary action, and does not and will not require any consent
or approval of Buyer's regulatory or governing bodies, other than that which has been obtained;
and (ii) does not violate any federal, state, and local law, including the California Government
Code and similar laws.
(c) This Agreement constitutes the legal, valid and binding obligation of Buyer
enforceable in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of
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creditors' rights generally or by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 10.2 Representations and Warranties of Seller. Except as otherwise set forth
in this Agreement_, Seller makes each of the following representations and warranties to Buyer as
of the Effective Date and continuing throughout the Delivery Term.
(a) Seller is an independent special district formed under the Irrigation District
Act (Division 11 of the California Water Code) of the State of California, and has legal power and
authority to carry on its business as now being conducted and to enter into this Agreement, and to
carry out the transactions contemplated hereby, and to perform and carry out all covenants and
obligations on its part to be performed under and pursuant to this Agreement.
(b) Seller owns and operates the Facility and has not assigned, transferred,
conveyed, sold or otherwise disposed of the Facility.
(c) The execution, delivery and performance by Seller of this Agreement
(i) have been duly authorized by all necessary action, and does not and will not require any consent
or approval of Seller's regulatory or governing bodies, other than that which has been obtained;
and (ii) does not violate any federal, state, and local law, including the California Government
Code and similar laws.
(d) This Agreement constitutes the legal, valid and binding obligation of Seller
enforceable in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally or by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and thereby and the fulfillment of and compliance with the
provisions of this Agreement, does not conflict with or constitute a breach of or a default under,
any of the terms, conditions or provisions of any Requirement of Law, or any organizational
documents, agreement, deed of trust, mortgage, loan agreement, 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, or result in a breach of or a default under any of the foregoing or result in or require the
creation or imposition of any Lien upon any of the properties or assets of Seller (except as
contemplated hereby), and Seller has obtained all Permits and licenses required for the operation,
and maintenance of the Facility in accordance with the Requirements and the performance of
Seller's obligations hereunder to which Seller is a party, or such Permits and licenses are
reasonably expected to be timely obtained in the ordinary course of business.
(f) There is no pending, or to the knowledge of Seller, threatened action or
proceeding affecting Seller before any Governmental Authority, which purports to affect the
legality, validity or enforceability of this Agreement.
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(g) North Yuba Water District vs. South Feather Water and Power Agency,
Superior Court of the State of California, County of Butte, Case No. 21CVO 1563 and any related
cases does not affect the legality, validity or enforceability of this Agreement.
(h) Seller is not in violation of any Requirement of Law, which violations,
individually or in the aggregate, would reasonably be expected to result in a material adverse effect
on the business, assets, operations, condition (financial or otherwise) or prospects of Seller, or the
ability of Seller to perform any of its obligations under this Agreement.
(i) Seller owns or possesses or will acquire all patents, rights to patents,
trademarks, copyrights and licenses necessary for the performance by Seller of its obligations
under this Agreement, and, to Seller's knowledge, Seller's use thereof does not infringe on the
intellectual property rights of third parties.
0) Seller has not assigned, transferred, conveyed, encumbered, sold or
otherwise disposed of the Products except as provided herein.
(k) The Facility is located in the State of California.
(1) Seller will be responsible for obtaining all permits necessary to enter into
this Agreement and operate the Facility and Seller will be the applicant on any CEQA documents.
ARTICLE XI
DEFAULT; TERMINATION AND REMEDIES; PERFORMANCE DAMAGE
Section 11.1 Default. Each of the following events or circumstances shall constitute a
"Default" by the responsible Party (the "Defaulting Party"):
(a) Payment Default. Failure by a Party to make any payment under this
Agreement when and as due (other than payments disputed in good faith) that is not cured within
thirty (30) days after receipt of notice thereof from the other Party (which amount shall include
payment of interest from the due date at the Interest Rate).
(b) Performance Default. Failure by a Party to perform any of its duties or
obligations under this Agreement (other than any failure that is separately listed as a Default of
Seller under this Section 11.1) that is not cured within thirty (30) days after receipt of notice thereof
from the other Party; provided that if such failure is curable, but cannot be cured within such thirty
(30) day period despite reasonable commercial efforts and such failure is not a failure to make a
payment when due, such Party shall have up to sixty (60) additional days to cure.
(c) Breach of Representation and Warranty. Any representation, warranty,
certification or other statement made by a Party in this Agreement that is false or inaccurate at the
time made and materially and adversely affects the Party's ability to perform its obligations
hereunder; provided that no Default shall exist if such falsity or inaccuracy is remedied within
thirty (30) days after receipt of notice thereof from another Party; and further provided that if such
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falsity or inaccuracy is curable, but cannot be cured within such thirty (30) day period despite
reasonable commercial efforts, such Party shall have up to sixty (60) additional days to cure.
(d) Bankruptcy. Bankruptcy of Buyer or Seller.
(e) Insurance Default. The failure of Seller to maintain and provide
acceptable evidence of the required Insurance for the required period of coverage as set forth in
Appendix E that is not cured within five (5) Business Days after receipt of notice of such failure
from Buyer.
(f) Fundamental Change. Except as permitted by Section 12.7, a Party makes
an assignment of its rights or delegation of its obligations under this Agreement.
(g) Casualty. Seller fails to meet its obligations under Section 12.19(d).
Section 11.2 Default Remedy.
(a) If Buyer is in Default for nonpayment, subject to any duty or obligation
under this Agreement, Seller may, at its option, suspend performance hereunder or continue to
provide services pursuant to its obligations under this Agreement; provided that nothing in this
Section I L2(a) shall affect Seller's rights and remedies set forth in this Section 11.2. Seller's
continued service to Buyer shall not act to relieve Buyer of any of its duties or obligations under
this Agreement.
(b) Notwithstanding any other provision herein, if any Default has occurred and
is continuing, the affected Party may, whether or not the dispute resolution procedure set forth in
Section 12.3 has been invoked or completed, bring an action in any court of competent jurisdiction
as set forth in Section 12.3 seeking injunctive relief in accordance with applicable rules of civil
procedure.
(c) Except as expressly limited by this Agreement, if a Default has occurred
and is continuing and Buyer is the Defaulting Party, Seller may without further notice exercise any
rights and remedies provided herein or otherwise available at law or in equity including a
termination of this Agreement pursuant to Section 11.3. No failure of Seller to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Seller of any other right, remedy or power hereunder preclude
any other or future exercise of any right, remedy or power.
(d) Except as expressly limited by this Agreement, if a Default has occurred
and is continuing and Seller is the Defaulting Party, Buyer may without further notice exercise any
rights and remedies provided for herein, or otherwise available at law or equity, including
termination of this Agreement pursuant to Section 11.3. No failure of Buyer to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Buyer of any right, remedy or power hereunder preclude any
other or future exercise of any right, remedy or power by Buyer.
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Section 11.3 Termination for Default.
(a) If a Default occurs, the Party that is not the Defaulting Party (the "Non -
Defaulting Party") may, for so long as the Default is continuing and, to the extent permitted by
applicable law, without limiting any other rights or remedies available to the Non -Defaulting Party
under this Agreement, by notice by it ("Termination Notice") to the Defaulting Party (i) establish
a date (which shall be no earlier than the date of such notice and no later than twenty (20) days
after the date of such notice) ("Early Termination Date") on which this Agreement shall terminate,
and (ii) withhold any payments due in respect of this Agreement; provided, upon the occurrence
of any Default of the type described in Section 11.1(d), this Agreement shall automatically
terminate, without notice or other action by either Party as if an Early Termination Date had been
declared immediately prior to such event.
(b) If an Early Termination Date has been designated, the Non -Defaulting Party
shall appoint a qualified independent third party to calculate in a commercially reasonable manner
its Gains, Losses and Costs resulting from the termination of this Agreement and the resulting
Termination Payment. The Gains, Losses and Costs relating to the Products that would have been
required to be delivered under this Agreement had it not been terminated shall be determined by
comparing the amounts Buyer would have paid for the Products under this Agreement to the
equivalent quantities and relevant market prices, either quoted by one or more bona fide third party
offers, or which are reasonably expected by the Non -Defaulting Party to be available in the market
under a replacement contract for this Agreement covering the same products and having a term
equal to the Remaining Term at the date of the Termination Notice, adjusted to account for
differences in transmission, if any. To ascertain the market prices of a replacement contract, the
Non -Defaulting Party may consider, among other valuations, quotations from dealers in Energy
contracts and bona fide third party offers. The Non -Defaulting Party shall not be required to enter
into any such replacement agreement in order to determine its Gains, Losses and Costs or the
Termination Payment.
(c) For purposes of the Non -Defaulting Party's determination of its Gains,
Losses and Costs and the Termination Payment, it shall be assumed, regardless of the facts, that
Seller would have sold, and Buyer would have purchased, each day during the Remaining Term
(i) Facility Energy in an amount equal to the Assumed Daily Deliveries, (ii) the Environmental
Attributes associated therewith, and (iii) all other components of the Products. The "Assumed
Daily Deliveries" shall be an amount equal to the average daily amount of Facility Energy
forecasted to be delivered during an average hydrological period by Seller, during the Delivery
Term, if any.
(d) The Non -Defaulting Party shall notify the Defaulting Party of the
Termination Payment, which notice shall include a written statement explaining in reasonable
detail the calculation of such amount. If the Termination Payment is a positive number, the
Defaulting Party shall, within ten (10) Business Days after receipt of such notice, pay the
Termination Payment to the Non -Defaulting Party, together with interest accrued at the Interest
Rate from the Early Termination Date until paid.
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(e) If the Defaulting Party disagrees with the calculation of the Termination
Payment and the Parties cannot otherwise resolve their differences, the calculation of the
Termination Payment shall be submitted to the dispute resolution process provided in Section 12.3.
Following resolution of the dispute, the Defaulting Party shall pay the full amount of the
Termination Payment (if any) as determined by such resolution as and when required, but no later
than thirty (30) days following the date of such resolution, together with all interest, at the Interest
Rate, that accrued from the Early Termination Date until the date the Termination Payment is paid.
(f) For purposes of this Agreement:
(i) "Gains" means, with respect to a Party, an amount equal to the
present value of the economic benefit (exclusive of Costs), if any, resulting from the
termination of its obligations under this Agreement, determined in a commercially
reasonable manner;
(ii) "Losses" means, with respect to a Party, an amount equal to the
present value of the economic loss (exclusive of Costs), if any, resulting from the
termination of its obligations under this Agreement, determined in a commercially
reasonable manner;
(iii) "Costs" means, with respect to a Party, brokerage fees, commissions
and other similar transaction costs and expenses reasonably incurred in terminating any
arrangement pursuant to which it has hedged its obligations or in entering into new
arrangements which replace this Agreement, excluding attorneys' fees, if any, incurred in
connection with enforcing its rights under this Agreement. Each Party shall use reasonable
efforts to mitigate or eliminate its Costs.
(iv) In no event shall a Party's Gains, Losses or Costs include any
penalties or similar charges imposed by the Non -Defaulting Party.
(v) The Present Value Rate shall be used as the discount rate in all
present value calculations required to determine Gains, Losses and Costs.
(g) At the time for payment of any amount due under this Section 11.3 each
Party shall pay to the other Party, all additional amounts, if any, payable by it under this Agreement
(including any amounts withheld pursuant to Section 11.3(a)).
(h) Notwithstanding the forgoing provisions of Section 11.3, in no event shall
a termination payment be due to a Defaulting Party.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Authorized Representative. Each Party shall designate an authorized
representative who shall be authorized to act on its behalf with respect to those matters contained
herein (each an "Authorized Representative"), which shall be the functions and responsibilities of
such Authorized Representatives. Each Party may also designate an alternate who may act for the
Authorized Representative. Within thirty (30) days after execution of this Agreement, each Party
shall notify the other Party of the identity of its Authorized Representative, and alternates if
designated, and shall promptly notify the other Party of any subsequent changes in such
designation. The Authorized Representatives shall have no authority to alter, modify, or delete
any of the provisions of this Agreement. To the extent that an Authorized Representative's contact
information is not provided in Appendix F, at the time a Party designates such Authorized
Representative, such Party shall concurrently provide written notice to the other Party of such
Authorized Representative's contact information.
Section 12.2 Notices. With the exception of billing invoices pursuant to Article 9 and
day-to-day ordinary course and operational communications, all notices, requests, demands,
consents, approvals, waivers and other communications which are required under this Agreement
shall be (a) in writing (regardless of whether the applicable provision expressly requires a writing),
(b) deemed properly sent if delivered in person or sent by facsimile transmission, reliable overnight
courier, or sent by registered or certified mail, postage prepaid to the persons specified in Appendix
F, and (c) deemed delivered, given and received on the date of delivery, in the case of facsimile
transmission, or on the date of receipt or rejection in the case of delivery in person, by reliable
overnight courier, or by registered or certified mail. In addition to the foregoing, the Parties may
agree in writing at any time to deliver notices, requests, demands, consents, approvals, waivers
and other communications through alternate methods, such as electronic mail.
Section 12.3 Dispute Resolution.
(a) In the event of any claim, controversy or dispute between the Parties
arising out of or relating to or in connection with this Agreement (including any dispute concerning
the validity of this Agreement or the scope and interpretation of this Section 12.3) (a "Dispute"),
either Party (the "Notifying Party") may deliver to the other Party (the "Recipient Party") notice
of the Dispute with a detailed description of the underlying circumstances of such Dispute (a
"Dispute Notice"). The Dispute Notice shall include a schedule of the availability of the Notifying
Party's senior officers (having a title of senior vice president (or its equivalent) or higher) duly
authorized to settle the Dispute, or, in the case of Seller, authorized to recommend settlement to
Seller's Board of Directors, during the thirty (30) day period following the delivery of the Dispute
Notice.
(b) The Recipient Party shall, within five (5) Business Days following receipt
of the Dispute Notice, provide to the Notifying Party a parallel schedule of availability of the
Recipient Party's senior officers (having a title of senior vice president (or its equivalent) or higher)
duly authorized to settle the Dispute, or, in the case of Seller, authorized to recommend settlement
to the Seller's Board of Directors. Following delivery of the respective senior officers' schedules
of availability, the senior officers of the Parties shall meet and confer as often as they deem
reasonably necessary during the remainder of the thirty (30) day period in good faith negotiations
to resolve the Dispute to the satisfaction of each Party.
(c) In the event a Dispute is not resolved pursuant to the procedures set forth in
Section 12.3(a) and Section 12.3(b) by the expiration of the thirty (30) day period set forth in
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Section 12.3(a), then a Party may pursue any legal remedy available to it in accordance with the
provisions of Section 12.12 and Section 12.13 of this Agreement.
(d) In addition to the Dispute resolution process set forth in this Section 12.3,
the Parties shall comply with California law governing claims against public entities and
presentment of such claims, if applicable.
Section 12.4 Further Assurances; Change in Electric Market Design.
(a) Each Party agrees to execute and deliver all further instruments and
documents, and take all further actions not inconsistent with the provisions of this Agreement that
may be reasonably necessary to effectuate the purposes and intent of this Agreement.
(b) If a change in the CAISO Tariff renders this Agreement or any provisions
hereof incapable of being performed or administered, then either Party may request that Buyer and
Seller enter into negotiations to make the minimum changes to this Agreement necessary to make
this Agreement capable of being performed and administered, while attempting to preserve to the
maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of
the Effective Date. Upon delivery of such a request, Buyer and Seller shall engage in such
negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of
such request, to agree upon changes to this Agreement or to resolve issues relating to changes to
this Agreement, then either Party may submit issues pertaining to changes to this Agreement to
the Dispute resolution process set forth in Section 12.3. Notwithstanding the foregoing, a change
in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof
incapable of being performed or administered, or constitute, or form the basis of, a Force Majeure.
Section 12.5 No Dedication of Facilities. Any undertaking by one Party to the other
Party under any provisions of this Agreement shall not constitute the dedication of the Facility or
any portion thereof of either Party to the public or to the other Party or any other Person, and it is
understood and agreed that any such undertaking by either Party shall cease upon the termination
of such Party's obligations under this Agreement.
Section 12.6 Force Majeure.
(a) A Party shall not be considered to be in Default in the performance of any
of its obligations under this Agreement when and to the extent such Party's performance is
prevented by a Force Majeure that, despite the exercise of due diligence, such Party is unable to
prevent or mitigate, provided the Party has given a written detailed description of the full
particulars of the Force Majeure to the other Party reasonably promptly after becoming aware
thereof (and in any event within fourteen (14) days after the initial occurrence of the claimed Force
Maj eure event) (the "Force Majeure Notice"), which notice shall include information with respect
to the nature, cause and date and time of commencement of such event, and the anticipated scope
and duration of the delay. The Party providing such Force Majeure Notice shall be excused from
fulfilling its obligations under this Agreement until such time as the Force Majeure has ceased to
prevent performance or other remedial action is taken, at which time such Party shall promptly
notify the other Party of the resumption of its obligations under this Agreement. If Seller is unable
to deliver, or Buyer is unable to receive, Facility Energy due to a Force Majeure, then Buyer shall
have no obligation to pay Seller for Facility Energy not delivered or received by reason thereof.
In no event shall Buyer be obligated to compensate Seller or any other Person for any losses,
expenses or liabilities that Seller or such other Person may sustain as a consequence of any Force
Majeure.
(b) The term "Force Majeure" means any act of God (including fire, flood,
earthquake, extremely severe storm, lightning strike, tornado, volcanic eruption, hurricane or other
natural disaster), labor disturbance, pandemic, strike or lockout of a national scope, act of the
public enemy, war, insurrection, riot, explosion, terrorist activities or any order, regulation or
restriction imposed by Governmental Authority, military or lawfully established civilian
authorities, or other occurrence that (i) prevents one Party from performing any of its obligations
under this Agreement, (ii) could not reasonably be anticipated as of the date of this Agreement,
(iii) is not within the reasonable control of, or the result of negligence, willful misconduct, breach
of contract, intentional act or omission or wrongdoing on the part of the affected Party (or any
subcontractor or Affiliate of that Party, or any Person under the control of that Party or any of its
subcontractors or Affiliates, or any Person for whose acts such subcontractor or Affiliate is
responsible), and (iv) by the exercise of due diligence the affected Party is unable to overcome or
avoid or cause to be avoided; provided, nothing in clause (iv) above shall be construed so as to
require a Party to accede or agree to any provision not satisfactory to it in order to settle and
terminate a strike or labor dispute in which it may be involved. Any Party rendered unable to
fulfill any of its obligations by reason of a Force Majeure shall exercise due diligence to remove
such inability with reasonable dispatch within a reasonable time period and mitigate the effects of
the Force Majeure. The relief from performance shall be of no greater scope and of no longer
duration than is required by the Force Majeure. Without limiting the generality of the foregoing,
a Force Majeure does not include any of the following (each an "Unexcused Cause"): (1) any
requirement to comply with a RPS Law or any change (whether voluntary or mandatory) in any
RPS Law, or other Change in Law, that may affect the value of the Products; (2) events arising
from the failure by Seller to operate or maintain the Facility in accordance with this Agreement;
(3) any increase of any kind in any cost; (4) delays in or inability of a Party to obtain financing or
other economic hardship of any kind; (5) Seller's ability to sell any Facility Energy at a price in
excess of those provided in this Agreement or Buyer's ability to purchase Product or any part
thereof at a price lower than those provided in this Agreement; (6) curtailment or other interruption
of any Transmission Service, including public safety power shutoff's by the Transmission
Provider; (7) failure of third parties to provide goods or services essential to a Party's performance;
(8) Facility or equipment failure of a kind that is not caused by Force Majeure; or (9) any changes
in the financial condition of Buyer or Seller affecting the affected Party's ability to perform its
obligations under this Agreement.
(c) Buyer may terminate this Agreement if (i) a Force Majeure event occurs
that diminishes the production of the Facility by more than fifty percent (50%) of the Contract
Capacity for a period of eighteen (18) consecutive months, or (ii) the Facility is rendered
inoperable and an independent engineer that is mutually acceptable to both Parties determines that
the Facility cannot be repaired or replaced within a period not to exceed twenty four (24) months
following the date of the occurrence of the Force Majeure event.
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(d) Any termination of this Agreement under Section 12.6(c) shall be "no-fault"
and neither Party shall have any liability or obligation to the other Party arising out of such
termination. Notwithstanding the foregoing, upon any such termination, each Party shall pay the
other Party for any and all amounts hereunder that may be owing, or other outstanding payments
due in the ordinary course that occurred prior to the termination. The exercise by Buyer of its right
to terminate the Agreement shall not render Buyer or Seller liable for any losses or damages
incurred by the other Party whatsoever.
Section 12.7 Assignment of Agreement. Except as otherwise set forth in this
Agreement, a Party shall not assign any of its rights, or delegate any of its obligations, in or under
this Agreement, without the prior written consent of the other Party, and such consent not to be
unreasonably withheld. Any purported assignment or delegation in violation of this provision shall
be null and void and of no force or effect.
Section 12.8 Ambiguity. The Parties acknowledge that this Agreement was jointly
prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity
existing herein shall not be interpreted against either Party on the basis that the Party drafted the
language, but otherwise shall be interpreted according to the application of the rules on
interpretation of contracts.
Section 12.9 Attorneys' Fees & Costs. Both Parties agree that in any action to enforce
the terms of this Agreement that each Party shall be responsible for its own attorneys' fees and
costs. Each of the Parties to this Agreement was represented by its respective legal counsel during
the negotiation and execution of this Agreement.
Section 12.10 Voluntary Execution. Both Parties acknowledge that they have read and
fully understand the content and effect of this Agreement and that the provisions of this Agreement
have been reviewed and approved by their respective counsel. The Parties further acknowledge
that they have executed this Agreement voluntarily, subject only to the advice of their own counsel,
and do not rely on any promise, inducement, representation or warranty that is not expressly stated
herein.
Section 12.11 Entire Agreement; Amendments. This Agreement (including all
Appendices and Exhibits) contains the entire understanding concerning the subject matter herein
and supersedes and replaces any prior negotiations, discussions or agreements between the Parties,
or any of them, concerning that subject matter, whether written or oral, except as expressly
provided for herein. This is a fully integrated document. Each Party acknowledges that no other
party, representative or agent, has made any promise, representation or warranty, express or
implied, that is not expressly contained in this Agreement that induced the other Party to sign this
document. This Agreement may be amended or modified only by an instrument in writing signed
by each Party; provided, however, Appendix C contains detailed principles, descriptions and
procedures for Scheduling and operation of the Facility, and Appendix C may be amended from
time to time upon mutual written consent of the Authorized Representative of each Party.
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Section 12.12 Governing Law. This Agreement was made and entered into in the County
of Placer, California and shall be governed by, interpreted and enforced in accordance with the
laws of the State of California, without regard to conflict of law principles.
Section 12.13 Venue. All litigation arising out of, or relating to this Agreement, shall be
brought in a state or federal court in the County of Placer or the County of Butte in the State of
California. The Parties irrevocably agree to submit to the exclusive jurisdiction of such courts and
waive any defense of forum non conveniens.
Section 12.14 Execution in Counterparts. This Agreement may be executed in
counterparts and upon execution by each signatory, each executed counterpart shall have the same
force and effect as an original instrument and as if all signatories had signed the same instrument.
Any signature page of this Agreement may be detached from any counterpart of this Agreement
without impairing the legal effect of any signature thereon, and may be attached to another
counterpart of this Agreement identical in form hereto by having attached to it one or more
signature pages.
Section 12.15 Effect of Section Headings. Section headings appearing in this Agreement
are inserted for convenience only and shall not be construed as interpretations of text.
Section 12.16 Waiver; Available Remedies. The failure of either Party to this
Agreement to enforce or insist upon compliance with or strict performance of any of the terms or
conditions hereof, or to take advantage of any of its rights hereunder, shall not constitute a waiver
or relinquishment of any such terms, conditions or rights, but the same shall be and remain at all
times in full force and effect. Except to the extent this Agreement expressly provides an exclusive
remedy for a breach, nothing contained herein shall preclude either Party from seeking and
obtaining any available remedies hereunder, including recovery of damages caused by the breach
of this Agreement and specific performance or injunctive relief, or any other remedy given under
this Agreement or now or hereafter existing in law or equity or otherwise. Seller acknowledges
that money damages may not be an adequate remedy for violations of this Agreement and that
Buyer may, in its sole discretion seek and obtain from a court of competent jurisdiction specific
performance or injunctive or such other relief as such court may deem just and proper to enforce
this Agreement or to prevent any violation hereof. Seller hereby waives any objection to specific
performance or injunctive relief; provided that where this Agreement provides an exclusive
remedy, then specific performance and injunctive relief are not available. The rights granted herein
are cumulative except where otherwise provided herein.
Section 12.17 Relationship of the Parties. This Agreement shall not be interpreted to
create an association, joint venture or partnership between the Parties hereto or to impose any
partnership obligation or liability upon either Party. Neither Party shall have any right, power or
authority to enter into any agreement or undertaking for, or act on behalf of, or to act as an agent
or representative of, the other Party.
Section 12.18 Third Party Beneficiaries. The provisions of this Agreement are solely
for the benefit of the Parties. Nothing in this Agreement, whether express or implied, shall be
construed to give to, or be deemed to create in, any other Person, whether as a third party
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beneficiary of this Agreement or otherwise, any legal or equitable right, remedy or claim in respect
of this Agreement or any covenant, condition, provision, duty, obligation or undertaking contained
or established herein. This Agreement shall not be construed in any respect to be a contract in
whole or in part for the benefit of any Person that is not a party hereto.
Section 12.19 Indemnification; Damage or Destruction; Insurance; Condemnation;
Limit of Liability.
(a) Indemnification by Seller. Seller undertakes and agrees to indemnify and
hold harmless Buyer, Participating Members, and all of their respective commissioners, officers,
agents, employees, advisors, and Authorized Representatives and assigns and successors in interest
(collectively, "Buyer Indemnitees") and, at the option of Buyer, to defend such Buyer Indemnitees
from and against any and all suits and causes of action (including proceedings before
administrative agencies), claims, charges, damages, demands, judgments, civil fines and penalties,
other monetary remedies or losses of any kind or nature whatsoever, for death, bodily injury or
personal injury to any person, including Seller's employees and agents, or third persons, or damage
or destruction to any property of either Party or third persons, in any manner arising by reason of
any breach of this Agreement by Seller, any failure of a representation, warranty or guarantee of
Seller hereunder to be true in all material respects, the negligent acts, errors, omissions or willful
misconduct incident to the performance of this Agreement on the part of Seller, or any of the
Seller's officers, agents, employees, or subcontractors of any tier, except to the extent caused by
the gross negligence or willful misconduct of any such Seller Indemnitee. Any liability of Seller
shall be limited to the extent of actual coverage and coverage limits of the insurance policies
described in Appendix E.
(b) Indemnification by Buyer. Buyer undertakes and agrees to indemnify and
hold harmless Seller, and all of its respective officers, agents, employees, directors, advisors, and
Authorized Representatives and assigns and successors in interest (collectively, "Seller
Indemnitees") and, at the option of Seller, to defend such Seller Indemnitees from and against any
and all suits and causes of action (including proceedings before administrative agencies), claims,
charges, damages, demands, judgments, civil fines and penalties, other monetary remedies or
losses of any kind or nature whatsoever, for death, bodily injury or personal injury to any person,
including Buyer's employees and agents, or third persons, or damage or destruction to any property
of either Party or third persons, in any manner arising by reason of any breach of this Agreement
by Buyer, any failure of a representation, warranty or guarantee of Buyer hereunder to be true in
all material respects, the negligent acts, errors, omissions or willful misconduct incident to the
performance of this Agreement on the part of Buyer, or any of the Buyer's officers, agents,
employees, or subcontractors of any tier, except to the extent caused by the gross negligence or
willful misconduct of any such Buyer Indemnitee. Any liability of Buyer shall be limited to the
lesser of the extent of actual coverage and coverage limits of Buyer's insurance policies or the
minimum insurance requirements for Seller described in Appendix E.
(c) Notice. The Parties shall give each other prompt notice of the making of
any claim or the commencement of any action, suit or proceeding covered by the provisions of this
Section 12.19.
.I,
(d) Damage or Destruction. If there is a casualty event or other event causing
the destruction of the Facility that renders the Facility incapable of generating 50% or more of the
Contract Capacity, Seller shall, within four (4) months of such event, enter into a contract for the
design of a replacement facility designed to be capable of satisfying the obligations of Seller under
this Agreement.
(e) Insurance. Seller shall obtain and maintain the Insurance coverages listed
in Appendix E.
(f) Condemnation or Other Taking. Throughout the Agreement Term, Seller
shall immediately notify buyer of the institution of any proceeding for the condemnation or other
taking of the Facility, the Facility assets, or any portion thereof, including the occurrence of any
hearing associated therewith. Buyer may participate in any such proceeding and Seller shall
deliver to Buyer all instruments necessary or required by Buyer to permit such participation.
Without Buyer's prior written consent, Seller (i) shall not agree to any compensation or award,
and (ii) shall not take any action or fail to take any action which would cause the compensation to
be determined.
(g) Limitation of Liability. EXCEPT TO THE EXTENT INCLUDED IN
THE LIQUIDATED DAMAGES, INDEMNIFICATION OBLIGATIONS RELATED TO
THIRD PARTY CLAIMS, OR OTHER SPECIFIC CHARGES EXPRESSLY PROVIDED FOR
HEREIN, IN NO EVENT SHALL EITHER PARTY OR ITS INDEMNITEES, BE LIABLE FOR
SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL
DAMAGES, LOST PROFITS OR OTHER COSTS, BUSINESS INTERRUPTION DAMAGES
RELATED TO OR ARISING OUT OF A PARTY'S PERFORMANCE OR NON-
PERFORMANCE OF THIS AGREEMENT, WHETHER BASED ON OR CLAIMED UNDER
STATUTE, CONTRACT, TORT (INCLUDING SUCH PARTY'S OWN NEGLIGENCE) OR
ANY OTHER THEORY OF LIABILITY AT LAW OR IN EQUITY. IT IS THE INTENT OF
THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE
MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES OF
SUCH DAMAGES, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT, CONTRIBUTORY, CONCURRENT, OR ACTIVE OR
PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS
AS AN UNREASONABLE PENALTY.
(h) To the extent any damages required to be paid hereunder are liquidated, the
Parties acknowledge that the damages are difficult or impossible to determine, and that the
liquidated damages constitute a reasonable approximation of the anticipated harm or loss.
(i) Regardless of the indemnitees provided in Section 12.19(a) of this
Agreement, Seller shall defend and indemnify Buyer regarding the Scheduling and dispatch
actions performed by Buyer in accordance with Article VI and Appendix C of this Agreement.
Section 12.20 Severability. In the event any of the terms, covenants or conditions of this
Agreement, or the application of any such terms, covenants or conditions, shall be held invalid,
illegal or unenforceable by any court having jurisdiction, all other terms, covenants and conditions
-45-
of this Agreement and their application not adversely affected thereby shall remain in force and
effect, provided that the remaining valid and enforceable provisions materially retain the essence
of the Parties' original bargain.
Section 12.21 Confidentiality.
(a) The Parties will keep confidential all confidential or trade secret
information made available to them in connection with this Agreement, to the extent possible,
consistent with applicable laws, including the California Public Records Act. Confidential or trade
secret information shall be marked or expressly identified as such ("Confidential Information").
(b) Notwithstanding the foregoing or any other provision of this Agreement,
the Parties acknowledges that Buyer and Seller are subject to disclosure as required by the
California Public Records Act, Cal. Govt. Code §§ 6250 et seq. ("CPRA") and the Ralph M. Brown
Act, Cal. Govt. Code §§ 54950 et seq. ("Brown Act").
(c) If a Party ("Receiving Party") receives a request from a Third Party for
access to, or inspection, disclosure or copying of, any of the other Party's (the "Supplying Party")
confidential data or information ("Disclosure Request"), then the Receiving Party shall provide
notice and a copy of the Disclosure Request to the Supplying Party within three (3) Business Days
of receipt of the Disclosure Request. Within three (3) Business Days of receipt of such notice, the
Supplying Party shall provide notice to the Receiving Party either:
(i) that the Supplying Party believes there are reasonable legal grounds
for denying or objecting to the Disclosure Request, and the Supplying Party requests the
Receiving Party to deny or object to the Disclosure Request with respect to identified
confidential information. In such case, the Receiving Party shall deny the Disclosure
Request and the Supplying Party shall defend the denial of the Disclosure Request at its
sole cost, and it shall indemnify the Receiving Party for all costs associated with denying
or objecting to the Disclosure Request. Such indemnification by the Supplying Party of
the Receiving Party shall include all of the Receiving Party's costs reasonably incurred
with respect to denial of or objection to the Disclosure Request, including but not limited
to costs, penalties, attorney's fees awarded against the Receiving Party and the Receiving
Party's attorney's fees; or
(ii) the Receiving Party may grant the Disclosure Request without any
liability by the Receiving Party to the Supplying Party.
Section 12.22 Mobile -Sierra. The Parties hereby stipulate and agree that this Agreement
was entered into as a result of arm's-length negotiations between the Parties. Further, the Parties
believe that, to the extent the sale of Energy under this Agreement is subject to Sections 205 and
206 of the Federal Power Act, 16 U.S.C. Sections 824d and 824e, the rates, terms and conditions
of this Agreement are just and reasonable within the meanings of Sections 205 and 206 of the
Federal Power Act, and that the rates, terms and conditions of this Agreement will remain so during
the Agreement Term. Notwithstanding any provision of this Agreement, the Parties waive all
rights to challenge the validity of this Agreement or whether it is just and reasonable for and with
.Z
respect to the Agreement Term, under Sections 205 and 206 of the Federal Power Act, and to
request the FERC to revise the terms and conditions and the rates or services specified in this
Agreement, and hereby agree not to seek, nor support any third party in seeking, to prospectively
or retroactively revise the rates, terms or conditions of this Agreement through application or
complaint to FERC or any other state or federal agency, board, court or tribunal, related in any
manner as to whether such rates, terms or conditions are just and reasonable or in the public interest
under the Federal Power Act, absent prior written agreement of the Parties. The Parties also agree
that, absent prior agreement in writing by the Parties to a proposed change, the standard of review
for changes to any rate, charge, classification, term or condition of this Agreement, whether
proposed by a Party (to the extent that any provision of this Section is unenforceable or ineffective
as to such Party), a non-party or the FERC acting sua sponte shall be the "public interest"
application of the "just and reasonable" standard of review that requires FERC to find an
"unequivocal public necessity" or "extraordinary circumstances where the public will be severely
harmed" to modify a contract, as set forth in United Gas Pipe Line Co. v. Mobile Gas Service
Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S.
348 (1956), and clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. I of
Snohomish, 554 U.S. 527 at 550-51 (2008) and NRG Power Marketing, LLC v. Maine Public
Utilities Comm'n, 558 U.S. 165 (2010).
-47-
Buyer and Seller were represented by legal counsel during the negotiation and execution
of this Agreement and the Parties have executed this Agreement as of the dates set forth below,
effective as of the Effective Date.
BUYER:
NORTHERN CALIFORNIA POWER
AGENCY
By: Randy S. Howard
Its: General Manager
Date:
Approved as to Form:
By:
Its: General Counsel
Date:
Signature Page to Power Purchase Agreement between South Feather Water and Power Agency
and Northern California Power Agency
SELLER:
SOUTH FEATHER WATER AND POWER
AGENCY
Its:
Date:
Approved as to Form:
Its: General Counsel
Date:
Signature Page to Power Purchase Agreement between South Feather Water and Power Agency
and Northern California Power Agency
APPENDIX A
TO POWER PURCHASE AGREEMENT,
DATED AS OF I J, 20[_]
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGENCY
CONTRACT PRICE
Buyer shall compensate Seller for the Product in accordance with this Appendix A.
For the period beginning on the Initial Delivery Date through 11:59 pm on December 31, 2021,
the Contract Price of the Product shall be equal to $35.00/MWh.
For the Delivery Term after 11:59 pm on December 31, 2021, the Contract Price of the Product
shall be as described below:
1) Contract Price. The Contract Price of the Product shall be equal to the Fixed Monthly
Payment plus the Variable Output Monthly Payment, as further described herein:
i. The Fixed Monthly Payment ("Fixed Monthly Payment") Buyer shall pay to
Seller each calendar month during the Delivery Term, subject to the terms of this
Agreement, shall be equal to RA Capacity Monthly Payment ("RA Capacity
Monthly Payment") plus Base Output Monthly Payment, calculated as follows:
RA Capacity Monthly Payment = Facility Monthly Net Qualifying
Capacity * RA Capacity Rate
Where RA Capacity Rate is $6.25 per kW -month
2. Base Output Monthly Payment
For each full Contract Year, Buyer shall pay to Seller Six Million Seven
Hundred Twenty Six Thousand Seven Hundred Twenty Dollars
($6,726,720.00) ("Base Output Compensation") in twelve equal monthly
installments ("Base Output Monthly Payment"). The Base Output Monthly
Payment represents Buyer's prepayment for the initial 192,192.00 MWh of
Facility Energy plus Deemed Generated Energy ("Base Output") produced
by the Facility during each Contract Year. Base Output is assumed to be
produced each calendar month as shown in Table A below ("Monthly Base
Ou ut"):
Appendix A
1
Table A — Base Output
Calendar Month
Monthly
Base Output
{MWh}
Base Output
Monthly Payment
January
16,016.00
$ 560,560.00
February
16,016.00
$ 560,560.00
March
16,016.00
$ 560,560.00
April
16,016.00
$ 560,560.00
May
16,016.00
$ 560,560.00
June
16,016.00
$ 560,560.00
July
16,016.00
$ 560,560.00
August
16,016.00
$ 560,560.00
September
16,016.00
$ 560,560.00
October
16,016.00
$ 560,560.00
November
16,016.00
$ 560,560.00
December
16,016.00
$ 560,560.00
Total
192,192.00
$ 6,726,720.00
ii. The Variable Output Monthly Payment ("Variable Output Monthly Payment")
Buyer shall pay to Seller each calendar month during the Delivery Term, subject to
the terms of this Agreement, shall be calculated as follows:
1. Variable Output Monthly Payment
During each full Contract Year, Buyer shall compensate Seller for each MWh
of Facility Energy produced in excess of Base Output ("Variable Output")
multiplied by the Variable Output Rate. For example, if during a full Contract
Year the Facility produced 477,369.00 MWh of Facility Energy, Buyer would
pay to Seller $9,690,314.46 ((477,369.00 MWh — 192,192.00 MWh) *
$33.98/MWh) for Variable Output produced for that full Contract Year.
Buyer and Seller acknowledge that actual month Facility production is
variable, whereby the amount of Facility Energy produced each calendar
month may be greater than, or less than, Monthly Base Output; therefore,
Buyer and Seller shall calculate the Variable Output Monthly Payment
amount adjusted for a monthly true -up calculation to account for actual
monthly Facility Energy production, as follows:
Variable Output Monthly Payment — Facility Monthly Variable Output
Variable Output Rate; where:
Appendix A
2
a. Variable Output Rate is $33.98 per MWh; and
b. Facility Monthly Variable Output ("Facility Monthly Variable
Out ut") is equal to the amount of Facility Energy produced each
calendar month that is in excess to the amount of Monthly Base
Output anticipated to be produced for the same calendar month, as
reflected in Table A of this Appendix A; provided, however, if the
amount of Facility Energy produced during a calendar month is less
than the amount of Monthly Base Output anticipated to be produced
for the same calendar month, as reflected in Table A of this
Appendix A, Monthly Variable Output shall be zero MWh, and the
amount of Monthly Base Output that is greater than the amount of
Facility Energy produced during a calendar month shall be "rolled
forward" and added to the amount of Monthly Base Output
anticipated to be produced in the next succeeding calendar month
("Variable Output True -up"), for the purpose of calculating
Facility Monthly Variable Output for the next succeeding calendar
month. For the purpose of clarity, the following examples of the
Variable Output True Up calculation are provided below:
Variable Output True -Up Example A
Variable Output True -Up Example B
Monthly Deemed Generated
Variable output
Facility Monthly
Variable Output
Calendar
Facility Energy
Base Output Energy
True -Up
Variable Output
Rate
Facility Output
Month
(MWh)
(MWh) (MWh)
[MWh]
[MWh]
($/MWh)
MonthlyPayment
January
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
February
15,000.00
16,016.00 -
1,016.00
-
$ 33.98
$ -
March
30,000.00
17,032.00
-
12,968.00
$ 33.98
$ 440,652.54
April
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
Variable Output True -Up Example B
Variable Output True -Up Example C
Monthly Deemed Generated
Variable output
Facility Monthly
Variable Output
Calendar
Facility Energy
Base Output Energy
True -Up
Variable Output
Rate
Facility Output
Month
(MWh)
(MWh) (MWh)
(MWh)
(MWh)
($/MWh)
Monthly Payment
January
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
February
15,000.00
16,016.00 -
1,016.00
-
$ 33.98
$ -
March
15,000.00
17,032.00 -
2,032.00
-
$ 33.98
$ -
April
30,000.00
18,048.00
-
11,952.00
$ 33.98
$ 406,128.96
Variable Output True -Up Example C
A final annual true -up credit ("Annual True -Up Credit") will be calculated
at the end of each Calendar Year and paid by Seller to Buyer to account for
any outstanding Variable Output True -Up amount, if any, as follows:
Appendix A
3
Monthly Deemed Generated
Variable Output
Facility Monthly
Variable Output
Calendar
Facility Energy
Base Output Energy
True -Up
Variable Output
Rate
Facility Output
Month
(MWh)
(MWh) (MWh)
(MWh)
(MWh)
($/MWh)
Monthly Payment
January
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
February
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
March
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
April
30,000.00
16,016.00 -
-
13,984.00
$ 33.98
$ 475,176.32
A final annual true -up credit ("Annual True -Up Credit") will be calculated
at the end of each Calendar Year and paid by Seller to Buyer to account for
any outstanding Variable Output True -Up amount, if any, as follows:
Appendix A
3
Annual True -Up Credit = Outstanding Variable Output True -Up amount
Variable Output Rate
For the purpose of clarity, an example of the Annual True -Up Credit
calculation is provided below:
Annual True -Up Credit Example
Monthly Deemed Generated Variable Output Facility Monthly Variable Output
Calendar Facility Energy Base Output Energy True -Up Variable Output Rate Facility Output
Month (MWh) (MWh) (MWh) (MWh) (MWh) ($/MWh) Monthly Payment
November 30,000.00 15,016.00 - 13,984.00 $ 33.98 $ 475,176.32
December 15,000.00 16,016.00 - 1,016.00 - $ 33.98 $ -
Annual Tru e -U p Cred it =1,016.00 MWh ' $33.98 = $34,523.68
Notwithstanding the Monthly Variable Output True -Up and Annual True -Up
described in this Appendix A, if the Facility produces a total amount of
Facility Energy during a Calendar Year that is less than Base Output, Buyer's
obligation to pay Seller total Base Output Compensation in a Calendar Year
shall not be reduced.
Appendix A
4
APPENDIX B
TO POWER PURCHASE AGREEMENT,
DATED AS OF [ ], 20[_]
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGECY
FACILITY DESCRIPTION
The Facilities of the South Feather Power Project are located in Butte County on the South Feather
river and include:
1. Name of Facility: South Feather Power Project
2. Location:
Kelly Ridge Powerhouse: 39°31'54.4"N 121 °29'28.6"W
Forbestown Powerhouse: 39°33'03.4"N 121°16'43.3"W
Woodleaf Powerhouse: 39'33'14.0"N 121'12'1 5.0"W
Sly Creek Powerhouse: 39°34'49.5"N 121°07'10.1"W
3. Description of Facilities:
Facility Name
Contract Capacity
CAISO Resource ID
PNode
CEC RPS ID
Forbestown
37.5
FORBST 7 UNIT 1
FORBSTWN 7131
N/A
Kelly Ridge
11.0
KELYRG 6 UNIT
KELLYRDG 7 61
60266
Sly Creek
13.0
SLYCRK 1 UNIT 1
SLYCREEK 7 B1
60267
Woodleaf
60.0
WDLEAF 7 UNIT 1
WOODLEAF 7 B1
N/A
2. Owner: South Feather Water and Power Agency
3. Operator: Seller
4. Scheduling Coordinator: Buyer
4. Point of Interconnection: The Point of Interconnection for each Facility shall mean the
point, as set forth in this Appendix B and the Interconnection Agreement, where the
Interconnection Facilities connect to the Transmission Providers Transmission System. The Point
of Interconnection for each Facility is further described herein:
Appendix B
1
WOODLEAF POWERHOUSE, SLY CREEK POWERHOUSE, AND FORBESTOWN
POWERHOUSE POINTS OF INTERCONNECTION
I-- --i
WO-ODLEAF PH (SFWPA)
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,roee,nu.fi
ids 117
KANAKAJCT Point of Change
tat of Ownership
FpFlRF$T�iY1111¢ ki' TM
149
Point of
Intarconn4hWon
I
PALERMO SUB
Figural. 915 kV Single Line diagram
Appendix B
2
KELLY RIDGE POWERHOUSE POINTS OF INTERCONNECTION
— — — i
— — — — — — —
KELLY RIOGE (SF"A) I
I I
I " I
MVA
I 1 I
I d.19 kV I
I STA I
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_
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I
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ns[ Fr*
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— — — — —I
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es
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ivicnro-awoo«e rt eu �r
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/
47
Pb1EPMO- 090%% LSE rY£8 V.WI OROVILLE EFJERGY
lftuYMUG! onnv��e eo rvs
67 $:s 64
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I
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FiI Z. BO kV Single Line Dial
Appendix B
3
APPENDIX C
TO POWER PURCHASE AGREEMENT,
DATED AS OF [ ], 20[_]
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGENCY
SCHEDUING AND OPERATING PROCEDURES
1. Scheduling and Operating Procedures
The Scheduling and operating procedures are separately attached to this Appendix C, and
are listed below:
SFPP-PM-101 — Voice and Data Communications
SFPP-PM-102 — Outage Management and Operational Reliability Data
SFPP-PM-104 — Dispatch Center Switching and Clearance Procedure
SFPP-PM-107 — Event Reporting Operating Plan
SFPP-PM-108 — Operating Instructions and Emergency Assistance
SFPP-PM-302 — Voltage Control, Automatic Voltage Regulator and Power System
Stabilizer Operations
SFPP-PM-304 — Project Operations and Control
SFPP-PM-401 — Scheduling and Bidding
Appendix C
1
APPENDIX D
TO POWER PURCHASE AGREEMENT,
DATED AS OF [ ], 20[_]
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGENCY
FORM OF ATTESTATION
(Seller) Environmental Attribute Attestation and Bill of Sale
("Seller") hereby sells, transfers and delivers to Northern California Power
Agency ("Buyer") the Environmental Attributes and Environmental Attribute Reporting Rights
associated with the generation from the Facility described below:
Facility name and location:
Fuel Type: Capacity (MW): Operational Date:
As applicable: CEC Reg. no. Energy Admin. ID no. Q.F. ID no.
Dates
20_
20
20
MWhs generated
in the amount of one Environmental Attribute or its equivalent for each MWh generated.
Seller further attests, warrants and represents as follows:
i) the information provided herein is true and correct;
ii) its sale to Buyer 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
iv) Seller owns the Facility and 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 Seller to Buyer all of Seller's right, title and interest in
and to the Environmental Attributes and Environmental Attribute Reporting Rights associated with
the generation of the Energy for delivery to the grid.
Contact Person/telephone:
Appendix D
1
APPENDIX E
TO POWER PURCHASE AGREEMENT,
DATED AS OF [ ], 20[_]
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGENCY
INSURANCE
I. GENERAL REQUIREMENTS
Within ten (10) days after the Effective Date, Seller shall furnish Buyer evidence of commercial
automobile liability, commercial general liability, excess liability, and workers' compensation
coverage meeting the requirements set forth in this Appendix E from insurers acceptable to Buyer
and in a form acceptable to the risk management of Buyer or acceptable to Buyer's agent for this
purpose. Such insurance shall be maintained by Seller at Seller's sole cost and expense.
Such insurance shall not limit or qualify the liabilities and obligations of Seller assumed under this
Agreement. Buyer shall not by reason of its inclusion under these policies incur liability to the
insurance carrier for payment of premium for these policies.
Any insurance carried by Buyer which may be applicable shall be deemed to be excess insurance
and Seller's insurance is primary for purposes under this Agreement despite any conflicting
provision in Seller's policies to the contrary.
Such insurance shall not be canceled or reduced in coverage or amount without first giving thirty
(30) days' prior notice thereof (ten (10) days for non-payment of premium) by registered mail to
General Manager, Northern California Power Agency.
Should any portion of the required insurance be on a "Claims Made" policy, Seller shall, at the
policy expiration date following completion of work, provide evidence that the "Claims Made"
policy has been renewed or replaced with the same limits, terms and conditions of the expiring
policy, or that an extended discovery period has been purchased on the expiring policy at least for
the contract under which the work was performed.
Appendix E
IL SPECIFIC COVERAGES REQUIRED
A. Commercial Automobile Liability
Seller shall provide Commercial Automobile Liability insurance which shall include
coverages for liability arising out of the use of owned (if applicable), non -owned, and hired
vehicles for performance of the work by Seller or its officers, agents, or employees, as
required, to be licensed under the California or any other applicable state vehicle code. The
Commercial Automobile Liability insurance shall have not less than $1,000,000.00
combined single limit per occurrence, with a self-insured retention or deductible of no more
than $100,000, and shall apply to all operations of Seller.
The Commercial Automobile Liability policy shall include Buyer, its members, and their
officers, agents, and employees while acting within the scope of their employment, as
additional insureds with Seller, and shall insure against liability for death, bodily injury, or
property damage resulting from the performance of this Agreement by Seller or its officers,
agents, or employees. The evidence of insurance shall be a form acceptable to Buyer's risk
manager.
B. Commercial General Liability
Seller shall provide Commercial General Liability insurance with Blanket Contractual
Liability, Independent Contractors, Broad Form Property Damage, Premises and
Operations, Products and Completed Operations, fire, Legal Liability and Personal Injury
coverages included. Such insurance shall provide coverage for total limits actually
arranged by Seller, but not less than $10,000,000.00 combined single limit per occurrence.
Should the policy have an aggregate limit, such aggregate limits should not be less than
double the Combined Single Limit. Umbrella or Excess Liability coverages may be used
to supplement primary coverages to meet the required limits. Evidence of such coverage
shall be a form acceptable to Buyer's risk manager, and shall provide for the following:
Include Buyer and its members, and their respective officers, agents,
and employees as additional insureds with the Named Insured for
the activities and operations of Seller and its officers, agents, or
employees under this Agreement.
2. Severability -of -Interest or Cross -Liability Clause such as: "The
policy to which this endorsement is attached shall apply separately
to each insured against whom a claim is made or suit is brought,
except with respect to the limits of the company's liability."
3. A description of the coverages included under the policy.
C. Excess Liability
Seller may use an Umbrella or Excess Liability Coverage to meet coverage limits specified
in this Agreement. Seller shall require the carrier for Excess Liability to properly schedule
Appendix E
2
and to identify the underlying policies on an endorsement to the policy acceptable to
Buyer's risk management agent. Such policy shall include, as appropriate, coverage for
Commercial General Liability, Commercial Automobile Liability, Employer's Liability,
or other applicable insurance coverages.
D. Workers' Compensation/Employer's Liability Insurance
Seller shall provide Workers' Compensation insurance covering all of Seller's employees
in accordance with the laws of any state in which the work is to be performed and including
Employer's Liability insurance and a Waiver of Subrogation in favor of Buyer. The limit
for Employer's Liability coverage shall be not less than $1,000,000.00 each accident and
shall be a separate policy if not included with Workers' Compensation coverage. Evidence
of such insurance shall be a form of Buyer Special Endorsement of insurance or on an
endorsement to the policy acceptable to Buyer's risk management agent. Workers'
Compensation/Employer's Liability exposure may be self-insured provided that Buyer is
furnished with a copy of the certificate issued by the state authorizing Seller to self -insure.
Seller shall notify Buyer's risk manager by receipted delivery as soon as possible of the
state withdrawing authority to self -insure.
Appendix E
3
APPENDIX F
TO POWER PURCHASE AGREEMENT,
DATED AS OF [ ], 20[_]
BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND
SOUTH FEATHER WATER AND POWER AGENCY
AUTHORIZED REPRESENTATIVES;
BUYER AND SELLER BILLING, NOTIFICATION AND
SCHEDULING CONTACT INFORMATION
1. Authorized Representative. The initial Authorized Representatives of Buyer and Seller
pursuant to Section 14.1 are as follows:
1.1 Bum:
Northern California Power Agency
c/o: General Manager
651 Commerce Drive
Roseville, CA 95678
Telephone: 916-781-3636
Facsimile: 916-783-7693
Email:
1.2 Seller:
RESERVED
2. Billings. Billings and payments pursuant to Article IX and Appendix A shall be
transmitted to the following addresses:
2.1 If Billingto
Northern California Power Agency
Attention: Settlements
Telephone: 916-781-3636
Facsimile: 916-781-4255
Email: settlements(&,ncpa.com; acctspayable(d),ncpa.com
2.2 If Payment to Buy:
Northern California Power Agency
Attention: Accounts Payable
Appendix F
1
Telephone: 916-781-4211
Facsimile: 916-781-4255
Email: Acctspayablegncpa.com
2.3 If Payment or Billing to Seller:
RESERVED
3. Notices. Unless otherwise specified by Buyer all notices (other than Scheduling notices,
curtailment notices, and Deemed Generated Energy notices):
If to Buyer:
Northern California Power Agency
Attention: General Counsel
Telephone: 916-781-3636
Facsimile: 916-783-7693
Email:
If to Seller:
RESERVED
Appendix F
2
L!
5
Schedulers. Unless otherwise specified by Buyer, all notices related to Scheduling of the
Facility shall be sent to the following address:
If to Buyer:
Northern California Power Agency
Pre -scheduling: Generation schedules are to be provided to NCPA Pre -Scheduling
contacts.
Name Phone Email
NCPA Preschedulers 916-786-0123 Preschedulers(cncpa.com
916-786-0124
Facsimile: 916-781-4239
Schedule Coordination: NCPA Schedule Coordinator contacts.
Name Phone Email
NCPA SC 916-781-4237 SC2kncpa.com
Facsimile: 916-781-4226
Outage Coordination: All Planned and/or Forced Outages of generation facilities
are to be provided to NCPA Dispatch and NCPA SC.
Name Phone
NCPA Dispatch 916-786-3518
NCPA SC 916-781-4237
Facsimile: 916-781-4226
If to Seller:
RESERVED
Email
Dispatchkncpa.com
SC2(cncpa.com
Curtailments. All notices related to curtailments of the Facility pursuant to Section 6.5
shall be sent to the following address:
If to Buyer:
Northern California Power Agency
(see above)
If to Seller:
RESERVED
Appendix F
3
6. Deemed Generated Energy. Unless otherwise specified by Buyer, all notices related to
calculations of Deemed Generated Energy shall be sent to the following address:
If to Buyer:
Northern California Power Agency
Attention: Settlements
Telephone: 916-781-3636
Facsimile: 916-781-4255
Email: settlements(d),ncpa.com
If to Seller:
RESERVED
Either Party may update its contact information in this Appendix F by delivering a notice to the
other Party pursuant to Section 12.2 of the Agreement, and such change shall not be considered
to be an amendment purchase to Section 12.11 of the Agreement.
Appendix F
4
RESOLUTION NO. 2021-259
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE
CITY MANAGER TO EXECUTE THIRD PHASE AGREEMENT WITH
NORTHERN CALIFORNIA POWER AGENCY FOR POWER PURCHASE
AGREEMENT WITH SOUTH FEATHER WATER AND POWER AGENCY
WHEREAS, the City of Lodi (Lodi) is a signatory to the Joint Powers Agreement (JPA)
which created the Northern California Power Agency (NCPA) and therefore is a Member; and
WHEREAS, Lodi and other NCPA Members have executed the Amended and Restated
Facilities Agreement which establishes the framework under which Project Agreements are
created for the development, design, financing, construction, and operation of specific NCPA
Projects; and
WHEREAS, Lodi and other Members desire NCPA to enter into a Power Purchase
Agreement (PPA) with South Feather Water and Power Agency (SFWPA) for the South Feather
Power Project located in Butte County; and
WHEREAS, under the terms of the PPA, NCPA will purchase the electrical energy output,
capacity attributes, renewable energy credits, and all other environmental attributes associated
with the South Feather Power Project which includes Forbestown Powerhouse (37.5 MW), the
Kelly Ridge Powerhouse (11.0 MW), the Sly Creek Powerhouse (13.0 MW), and the Woodleaf
Powerhouse (60.0 MW) from SFWPA over a 20 -year delivery term; and
WHEREAS, the Third Phase Agreement with NCPA for the PPA with SFWPA (Agreement)
is a contract between NCPA and the Port of Oakland and San Francisco Bay Area Rapid Transit
District as well as the cities of Healdsburg, Lodi, Lompoc, Roseville, Ukiah, and Santa Clara
(Silicon Valley Power); and
WHEREAS, the Agreement facilitates the transfer of all costs, obligations, and benefits
associated with the PPA from NCPA to the signatories to the Agreement in proportion to each
signatory's Project Participation Percentage as identified in the Agreement, for the life of the PPA;
and
WHEREAS, Lodi's Project Participation Percentage share of the PPA will produce
approximately 31,000 MWhs per year, a portion of which can be used to meet Renewables
Portfolio Standard requirements, at an annual estimated cost of $1,798,000 during an average
water year; and
WHEREAS, on August 24, 2021, the Risk Oversight Committee received a report and
recommended approval of the Agreement with NCPA.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize
the City Manager to execute a Third Phase Agreement with the Northern California Power Agency
for a Power Purchase Agreement with the South Feather Water and Power Agency; and
BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol
Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to
the above -referenced document(s) that do not alter the compensation or term, and to make
clerical corrections as necessary.
Dated: September 15, 2021
I hereby certify that Resolution No. 2021-259 was passed and adopted by the City Council
of the City of Lodi in a regular meeting held September 15, 2021, by the following vote:
AYES: COUNCIL MEMBERS — Chandler, Hothi, Khan, Kuehne, and
Mayor Nakanishi
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
JENNIF CUSMIR
City Clerk
2021-259