HomeMy WebLinkAbout09.03.21 Board Correspondence - FERC
From:Paulsen, Shaina
To:Alpert, Bruce;Bennett, Robin;Clerk of the Board;Connelly, Bill;Cook, Holly;Cook, Robin;Hironimus, Patrizia;
Kimmelshue, Tod;Lucero, Debra;Paulsen, Shaina;Pickett, Andy;Reaster, Kayla;Ring, Brian;Ritter, Tami;
Sweeney, Kathleen;Teeter, Doug
Subject:Board Correspondence - FERC
Date:Friday, September 3, 2021 3:35:51 PM
Attachments:FERC Correspondence.pdf
Please see attached Correspondence from FERC.
Shaina Paulsen
Administrative Assistant, Senior
Butte County Administration
25 County Center Drive, Suite 200
Oroville, CA 95965
T: 530.552.3304 | F: 530.538.7120
From:"FERC eSubscription"
Subject:Comment on Filing submitted in FERC P-2088-000 by Individual No Affiliation,et al.
Date:Friday, August 27, 2021 5:25:32 AM
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On 8/6/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Individual No Affiliation
South Feather Water & Power Agency (as Agent)
Docket(s): P-2088-000
Lead Applicant: South Feather Water and Power Agency
Filing Type: Comment on Filing
Supplemental/Additional Information
Description: South Feather Water and Power Agency submits response to the June 8, 2021 request for additional information re
current relicensing effort for the South Feather Power Project under P-2088.
.
To view the document for this Filing, click here
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CUI//CEII Transmittal
August 6, 2021
Kimberly D. Bose, Secretary ƭǒĬƒźƷƷĻķ ǝźğ C9w/ƚƓƌźƓĻ БΉЏΉЋЉЋЊ
Federal Energy Regulatory Commission
888 First Street NE, Room 1A
Washington, DC 20426
RE: South Feather Power Project (FERC No. 2088)
Additional Information Request
Dear Ms. Bose,
This serves as the transmittal our response to the June 8, 2021 correspondence requesting
that South Feather Water and Power Agency SFWPA submit additional information relative to the
current relicensing effort. SFWPA originally filed an application for a new license with the FERC on
March 26, 2007, and continues to work with the Commission and other resource agencies in support
of the license issuance.
If you have any questions related to this filing, please feel free to contact me at (530) 534-1221, or via email at
kmckillop@southfeather.com.
Sincerely,
South Feather Water and Power Agency
Kristen McKillop
Compliance and Regulatory Manager
CUI//CEII documents submitted separately.
cc: Rath Moseley, General Manager
Dan Leon, Power Division Manager
From:"FERC eSubscription"
Subject:Compliance Directives issued in FERC P-619-000
Date:Friday, August 27, 2021 3:15:03 PM
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On 8/27/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-619-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Compliance Directives
General Correspondence
Description: Letter to Pacific Gas and Electric Company providing comments on the Haskins Boat Ramp Replacement Authorization Request and Schedule Update for the Bucks Storage Dam Project
under P-619.
To view the document for this Issuance, click here
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Comments and Suggestions can be sent to this email address: mailto:FERCOnlineSupport@Ferc.gov
FEDERAL ENERGY REGULATORY COMMISSION
Office of Energy Projects
Division of Dam Safety and Inspections San Francisco Regional Office
100 First Street, Suite 2300
San Francisco, CA 94105-3084
(415) 369-3300 Office (415) 369-3322 Facsimile
August 27, 2021
In reply refer to:
Project No. 619-CA
Mr. Jan Nimick, Vice President
Pacific Gas and Electric Company (PG&E)
Mail Code N11E
P.O. Box 770000
San Francisco, CA 94177-0001
Re: Buck Storage Dam Haskins Boat Ramp Replacement Authorization Request
Dear Mr. Nimick:
This is in response to letters dated April 13, 2021 and August 10, 2021 from Ms.
Teri Smyly that submitted the Haskins Boat Ramp Replacement Authorization Request
and Schedule Update for Haskins Boat Ramp Replacement at Bucks Storage Dam, which
is part of the Bucks Creek Hydroelectric Project, FERC No. 619. We have reviewed the
submittal, and we have the following comments:
1. Provide the name and resume of the Field Inspector in the Project Organization
Chart in Appendix C of the QCIP.
2. Please note that a
-
they are the final drawings to be provided to the contractor for construction.
3. For any construction activity associated with the Haskins Valley Boat Ramp
Replacement Effort, the 18 General Measures and the 15 Sierra Nevada
Yellow-legged Frog Conservation Measures in Enclosure 3 are to be
implemented.
4. Please provide a construction schedule, as required in the QCIP guidelines.
2
Provided that PG&E addresses the above comments within 10 days of the date of
this letter, PG&E is authorized to immediately proceed with construction. Failure to
adequately address our comments within 10 days will require a suspension of all work
until the comments are addressed.
Given the short duration of the project, monthly construction reports will not be
required. However, within 90 days of completion of construction, a final construction
report, which addresses the applicable items in Enclosure 1, should be submitted.
Within 90 days of completion of construction of the facilities authorized by this
letter, you must file for Commission approval, revised Exhibits A, F, and G, as
applicable, to describe and show those project facilities as built. If you determine that
previously approved exhibits reflect the as-built facilities and no revisions are necessary,
you must file a letter stating the approved exhibits reflect the as-built project facilities.
To assist Commission staff in the review of any revised Exhibit A, we strongly
recommend that you file a revised Exhibit A, in its entirety, in two forms:
1. A strikethrough format (i.e., strikethrough items to be removed, and underline or
bold items to be added to the exhibit), and
2. A final, clean copy incorporating the changes (i.e., without the strikethrough,
underline, and bold notations).
You must separate Exhibit F drawings from the other project exhibits, and label
and file them as Critical Energy Infrastructure Information (CEII) material under
18 CFR § 388.113. The submission should consist of, as applicable: 1) a public portion
consisting of a cover letter and the Exhibits A and G; and 2) a CEII portion containing
only the Exhibit F drawings.
The Commission strongly encourages electronic filing. Please file the requested
http://www.ferc.gov/docs-
filing/efiling.asp. For assistance, please contact FERC Online Support
atFERCOnlineSupport@ferc.gov, (866) 208-3676 (toll free), or (202) 502-8659
(TTY). In lieu of electronic filing, you may submit a paper copy. Submissions sent via
the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal
Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Submissions sent via any other carrier must be addressed to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville,
MD 20852. Your filing must include a cover letter that identifies the project number and
the reason for the submittal.
Also within 90 days of completion of construction, PG&E should submit the
following construction certifications, which must be verified in accordance with Title 18,
Section 12.13 of the Code of Federal Regulations (18 CFR 12.13):
3
1. A certification by the Design Engineer that the project was constructed in
accordance with the design intent
2. A certification by the Quality Control Manager that the inspection and testing
program resulted in the conclusion that the project was constructed in accordance
with the plans and specifications reviewed by the Commission
3. A certification by the Licensee (PG&E) that the project was constructed in
accordance with the design intent and in accordance with the plans and
specifications reviewed by the Commission
Sample certifications are given in Enclosure 2.
If the plans and specifications are revised during the construction process, it is
PG&E
Design Engineer, the Resident Engineer, the Project Manager, the FERC, and you, prior
to proceeding with the changes. Also, you are reminded that no changes may be made to
the operation of the project without first coordinating those proposed changes with the
FERC.
PG&E is responsible for ensuring completion of any necessary environmental
coordination with resource agencies as well as the procurement of any federal, state, or
local permits required for the work.
We appreciate your continued efforts dam
safety program. If you have any questions, please contact me at (415) 369-3318.
Sincerely,
Frank L. Blackett, P.E.
Regional Engineer
Enclosures (3)
cc:
Ms. Sharon Tapia, Chief
CA Dept. of Water Resources
Division of Safety of Dams
P.O. Box 942836
Sacramento, CA 94236-0001
Items to be Addressed in Final Construction Report for Enclosure 1
The Access Improvement Project at Grizzly Forebay
FERC No. 619
FINAL CONSTRUCTION REPORTS FROM LICENSEES
The Final Construction Report should be submitted within 90 days of completion
of the work. This report should include all information pertinent to dam safety in a
concise form. It should be included in the project file and should be given to the
independent consultant for his or her safety inspection and analyses, if applicable. As
such, the report should contain a summary of information in each of the applicable
sections indicated below (the information was previously presented in the monthly
reports). Construction difficulties should be reported under the appropriate sections. For
conciseness, test results should be presented in a tabular format, with an indication of the
applicable standards. Finally, in those cases where there is nothing to report under a
specific heading, a statement of non-applicability will suffice.
1. General. Briefly present the reason for construction and description of the work with
dates of the beginning and end of construction. Include reservoir drawdown and filing
dates, and any findings regarding the original structure.
2. Foundations. Discuss the condition of the foundation (faults, etc.) and the treatment of
the foundation. Attach a foundation mapping.
3. Embankments. Describe the equipment and the types of materials used in filters and
fills. Attach gradation and compaction requirements and all test results.
4. Concrete work. Describe the equipment and the types of materials used in all concrete
work. Include all grout test results and describe any surface treatments.
5. Anchors. Present a summary of any drilling operations, including boring logs; results
of water pressure tests; anchor design calculations, design loads, and specifications;
results of grout tests; results of proof and performance tests; and a summary of the
acceptance criteria.
6. Instrumentation. Present plots of existing instrumentation readings taken during
construction if the readings are affected by the work. Include a plan and schedule for
calibration of all new instrumentation.
7. Drawings. Attach as-built drawings reduced in size to 8.5"x11" or 11"x17". The
drawings should include plan and section views, and details of the structures affected by
the new work. The plan and section views should show any new instrumentation that
was installed as part of the work.
Page 1 of 1
Enclosure 2
CERTIFICATION
By Design Engineer
CERTIFICATION OF CONSTRUCTION PAGE 1 OF 3
FERC Project No.
Construction Project Description:
Design Drawings/Specifications:
Quality Control and Inspection Program (QCIP) dated:
This is a certification by the Design Engineer that the project was constructed in accordance
with the design intent.
*****************************************************************************
VERIFICATION
STATE OF CALIFORNIA \]
COUNTY OF \], SS:
The undersigned, being first duly sworn, states that he/she has read the above document
and knows the contents of it, and that all of the statements contained in that document are
true and correct, to the best of his/her knowledge and belief (per 18CFR Part 12,
Paragraph 12.13).
Design Engineer (Print Name)
Signature
\[STAMP\]
Sworn to and subscribed before me
this day of , 20
NOTARY PUBLIC \[SEAL\]
Enclosure 2
CERTIFICATION
By Quality Control Manager
CERTIFICATION OF CONSTRUCTION PAGE 2 OF 3
FERC Project No.
Construction Project Description:
Design Drawings/Specifications:
Quality Control and Inspection Program (QCIP) dated:
This is a certification by the Quality Control Manager that the inspection and testing program
resulted in the conclusion that the project was constructed in accordance with the plans and
specifications reviewed by the Commission.
*****************************************************************************
VERIFICATION
STATE OF CALIFORNIA \]
COUNTY OF \], SS:
The undersigned, being first duly sworn, states that he/she has read the above document
and knows the contents of it, and that all of the statements contained in that document are
true and correct, to the best of his/her knowledge and belief (per 18CFR Part 12,
Paragraph 12.13).
Quality Control Manager (Print Name)
Signature
\[STAMP\]
Sworn to and subscribed before me
this day of , 20
NOTARY PUBLIC \[SEAL
Enclosure 2
CERTIFICATION
By Licensee or Exemptee
CERTIFICATION OF CONSTRUCTION PAGE 3 OF 3
FERC Project No.
Construction Project Description:
Design Drawings/Specifications:
Quality Control and Inspection Program (QCIP) dated:
This is a certification by the Licensee or Exemptee that the project was constructed in
accordance with the design intent and in accordance with the plans and specifications
reviewed by the Commission.
************************************************************************
*****
VERIFICATION
STATE OF CALIFORNIA \]
COUNTY OF \], SS:
The undersigned, being first duly sworn, states that he/she has read the above
document and knows the contents of it, and that all of the statements contained in
that document are true and correct, to the best of his/her knowledge and belief (per
18CFR Part 12, Paragraph 12.13).
For Licensee or Exemptee (Print Name)
Signature
\[STAMP\]
Sworn to and subscribed before me
this day of , 20
NOTARY PUBLIC \[SEAL\]
Enclosure 3
Conservation Measures
For any construction activity associated with the Haskins Valley Boat Ramp
Replacement Effort, the licensees must implement the 18 General Measures and the
15 Sierra Nevada Yellow-legged Frog Conservation Measures as follows:
General Measures:
1. Environmental awareness training will be provided to all construction personnel at the
start of the Project and will include a review of sensitive resources (frog, nesting
birds, wetlands/aquatic habitats, and invasive weeds) and the associated conservation
measures to be implemented during Project activities.
2. No vehicles or equipment will be refueled within 100 feet of wetlands, streams, or
other waterways, except within secondary containment that shall be designed to
contain any possible spills. Vehicles operating adjacent to wetlands and waterways
will be inspected and maintained daily to prevent leaks.
3. Stationary equipment (e.g., pumps and generators) used or stored within 100 feet of
aquatic habitat will be positioned over secondary containment.
4. Extreme caution will be exercised when handling and or storing chemicals (fuel,
hydraulic fluid, etc.) near waterways; all applicable laws/regulations and best
management practices will be abided by.
5. Spill kits will be kept onsite and all hazardous spills will be cleaned up and reported
immediately.
6. Waterways and storm drains will be protected with silt fence, fiber rolls, erosion
control blankets, and other Storm Water Best Management Practices as necessary
along work area boundaries prior to initiating activity and will be maintained through
the duration of Project activities. No fill, including vegetation trimmings, debris, or
runoff will be allowed to enter wetland areas or waterways.
7. Erosion control materials shall be installed per manufacturing material specifications
and must not contain monofilament netting.
8. If turbidity is observed in Bucks Lake adjacent to the work area, work will stop until
the water clears. The water quality specialist will be notified for each such
occurrence, and work shall not resume until authorized by them.
9. If sheen is observed in Bucks Lake adjacent to the work area work will stop and boom
material will be placed to contain and clean up the sheen. The Environmental Field
Specialist will be notified for each such occurrence, and work shall not resume until
authorized by them.
10. When accessing work sites, limit travel and parking of vehicles and equipment to
pavement, existing roads, and previously disturbed areas (except where overland
travel is required).
11. Ground disturbance and vegetation removal should not exceed the minimum amount
necessary to complete work at the site.
12. If a plant or animal is found at the work site and is believed to be a protected species,
work shall stop in that area and the Project biologist Larry Wise (925-785-8831,
2
Enclosure 3
Conservation Measures
Lawrence.Wise@pge.com) will be contacted for guidance. Care shall be taken not to
harm the plant or animal species.
13. No wildlife species shall be handled and/or removed from the site by anyone except
qualified biologists.
14. Wildlife found in work areas shall be allowed to move out of the area on their own. If
the animal does not move out of the area on its own, the Project biologist will be
contacted for further direction.
15. To avoid crushing wildlife, construction personnel will look under all vehicles and
equipment prior to moving them.
16. Cover or install escape ramps if open trenches or holes are left open overnight.
Inspect open trenches or holes every morning prior to work for trapped wildlife. If
any wildlife is found, the Project biologist will be notified immediately.
17. Following the completion of the Project, all construction materials, spoils, or other
debris should be removed from the project site.
18. Work areas will be returned to preexisting contours and conditions upon completion
of work.
Sierra Nevada Yellow-legged Frog Conservation Measures:
1. Prior to the start of work, preconstruction surveys shall be conducted within the
Project area. Surveys shall encompass all suitable habitat within 300 feet of these
areas. Two surveys shall be conducted: the first in the late spring/early summer after
snow melt, which shall include visual encounter surveys and eDNA sampling
(occurred on June 9, 2021). The second shall be conducted within 24 hours of the start
of work and will include a visual encounter survey in the Project areas. These surveys
shall be conducted by a qualified biologist as specified in the previous Biological
Opinion. USFWS-accepted decontamination protocols will be followed during all
surveys.
2. In-water work will not be conducted during the Limited Operating Period for the frog,
which extends from November 1 to April 15.
3. Annual Employee Training for staff (employees and contractors) will include a
description of the frog and their habitat, as well as protection measures outlined in the
Plan.
4. All heavy equipment, vehicles, and activities will be confined to existing access
roads, road shoulders, staging areas, and disturbed or designated parking and work
areas where conditions allow. Equipment, when not in use, will be stored in upland
areas away from all waterbodies.
5. The Licensees may be required to periodically travel off-road to retrieve/remove cut
hazard trees and other vegetation from areas lacking roads (e.g., campgrounds) for
public/facility safety or for other Project activities. Access to/from work areas will
follow the safest route with the least potential for resource damage.
3
Enclosure 3
Conservation Measures
6. If work is required in off-road areas in suitable habitat, a qualified biologist will clear
the work area before work proceeds.
7. Vehicles and equipment will not be maintained or refueled in areas where hazardous
materials may enter a stream or lake (minimum of 107 feet from waterways). All
equipment will be well maintained to prevent leaks of fuels, lubricants, or other fluids.
All equipment and the ground underneath such equipment will be inspected prior to
be being brought on site, and daily while on site for evidence of leaks. Any leaking
equipment will be removed from the site immediately and repaired before being
allowed to return to any
8. Extreme caution will be used and all applicable laws and regulations will be followed
when handling and/or storing chemicals (e.g., fuel, hydraulic fluid, pesticides, etc.).
Chemicals should not be stored near waterways, except within existing Project
buildings designated for such storage. Mixing of chemicals should be done no closer
than 300 feet from suitable frog aquatic habitat. All applicable hazardous waste best
management practices will be followed. Appropriate materials will be on site to
prevent and manage spills.
9. When possible, activities near wetlands, waterways, or on saturated soils will be
conducted during the dry season. If work is necessary during the rainy season, it
should be conducted during dry spells between rain events.
10. Vegetation removal and ground disturbance will not exceed the minimum amount
necessary to complete work.
11. Spoil sites will not be located within any waterbodies or aquatic habitat (including
meadows) where spoils may be washed back into any waterbodies or aquatic habitat
or where it may cover aquatic or riparian vegetation.
12. Vegetation trimmings, debris, fill, litter, or other materials that may be deleterious to
aquatic life will not be placed within 300 feet of suitable habitat for the frog. All trash
and waste items generated by Project or personnel activities will be properly
contained and removed from the Project area at the end of each workday to prevent
attracting wildlife to the area.
13. If a frog is encountered, the general procedure is to leave the animal alone. If a frog is
encountered in an active Project area, the first priority is to stop all activities in the
surrounding area that may have the potential to result in take (e.g., harassment, injury,
or death) of the individual. A photograph will be taken (without handling the frog),
and shared with the biologist. If the biologist determines that it is a Sierra Nevada
yellow-legged frog, it will be permitted to leave the project area on its own. If it does
not leave, work will be delayed until the frog leaves the area. Work will not resume
contact the Bay-Delta Fish and Wildlife Office, U.S.D.A. Forest Service, and
California Department of Fish and Wildlife within 48 hours. The sighting location
will be documented with GPS and reported to the California Natural Diversity
Database.
4
Enclosure 3
Conservation Measures
14. Before moving vehicles and heavy equipment, Project personnel will check for
amphibians and other wildlife to ensure they are not crushed.
15. The Licensees will use erosion control materials composed entirely of natural-fiber
biodegradable materials within 107 feet of frog suitable habitat. Geotextiles, fiber
rolls, and other erosion control measures shall be made of loose-weave mesh, such as
jute, coconut (coir) fiber, or other products without welded weaves. Synthetic (e.g.,
plastic or nylon) mono-filament netting will not be used for erosion control or other
purposes within 107 feet of frog suitable habitat to ensure that individuals do not get
entangled, trapped, injured, or killed.
5
From:"FERC eSubscription"
Subject:Compliance Directives issued in FERC P-2088-068
Date:Friday, August 27, 2021 7:15:31 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 8/27/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-2088-068
Lead Applicant: South Feather Water and Power Agency
Filing Type: Compliance Directives
General Correspondence
Description: Letter requesting South Fork Water and Power Agency to file additional information within 60 days re the supplemental environmental impact statement for the continued operation
and maintenance etc. for the South Feather Power Project under P-2088.
To view the document for this Issuance, click here
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To modify your subscriptions, click here:
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FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON, D.C. 20426
August 27, 2021
OFFICE OF ENERGY PROJECTS
Project No. 2088-068ÏCalifornia
South Feather Power Project
South Fork Water and Power
Agency
VIA Electronic Mail
Mr. Rath Moseley
General Manager
rmoseley@southfeather.com
Reference: Additional Information Request
Dear Mr. Moseley:
On June 8, 2021, you were informed of the CommissionÓs intent to prepare a
supplemental environmental impact statement (EIS) for the continued operation and
maintenance of the 117.3-megawatt (MW) South Feather Power Project (South Feather
Project). That letter requested additional information to assist the Commission in the
preparation of the supplemental EIS and noted that further requests for additional
information may be sent to you at any time before the final action on your license
application. South Feather filed a response to our request on August 6, 2021.
We have identified additional information pertaining to the drawdown of MinerÓs
Ranch Reservoir and the associated schedule for project operations in the event
California DWR requests that the projectÓs Kelly Ridge Powerhouse be shutdown per the
terms of the October 23 2012 Kelly Ridge Powerhouse Settlement Agreement that are
needed to inform our supplemental EIS (enclosed as Schedule A). Please file the
requested information within 60 days of the date of this letter. Please be aware that
further requests for additional information may be sent to you at any time before the final
action on your license application.
The Commission strongly encourages electronic filing. Please file the requested
information using the CommissionÓs eFiling system at https://ferconline.ferc.gov/
FERCOnline.aspx. For assistance, please contact FERC Online Support at
FERCOnlineSupport@ferc.gov, (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In
lieu of electronic filing, you may submit a paper copy. Submissions sent via the U.S.
Project No. 2088-068 - 2 -
Postal Service must be addressed to Kimberly D. Bose, Secretary, Federal Energy
Regulatory Commission, 888 First Street NE, Room 1A, Washington, D.C. 20426.
Submissions sent via any other carrier must be addressed to Kimberly D. Bose, Secretary,
Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
The first page of any filing should include docket numbers P-2088-068.
If you have any questions regarding this letter, please contact Quinn Emmering at
(202) 502-6382 or via email at quinn.emmering@ferc.gov.
Sincerely,
Timothy Konnert, Chief
West Branch
Division of Hydropower Licensing
Enclosure: Schedule AÏRequest for Additional Information
Project No. 2088-068 A-1
Schedule A
ADDITIONAL INFORMATION
Implementation of the Kelly Ridge Settlement Agreement
1. On June 17, 2014, South Feather Water and Power Agency (SFWPA) filed with
the Commission a copy of the October 23, 2012 Kelly Ridge Powerhouse Settlement
Agreement (SA). The SA includes SFWPA, the California Department of Water
Resources (DWR), and the State Water Contractors, Inc., and relates to the coordination
of operations of the Kelly Ridge Powerhouse, which is part of SFWPAÓs South Feather
Power Project (P-2088), and California DWRÓs Oroville Project (P-2100). The SA will
be evaluated in the supplemental EIS as new information since the SA was developed
after the final EIS was issued on June 4, 2009. On June 8, 2021, we requested additional
information under AIR #3 to enable our evaluation of potential effects of the SA on
aquatic resources. Although you filed a response to AIR #3 on August 6, 2021, it does
not provide sufficient information to enable Commission staff to evaluate the SAÓs
potential effects on aquatic resources.
It is our understanding that implementation of the SA would result in the
following actions: (1) California DWR requests SFWPA shut down the Kelly Ridge
Powerhouse for a period of 7 to 21 days, (2) SFWPA restarts Kelly Ridge Powerhouse at
the end of this period, and (3) California DWR provides financial compensation for the
outage period. More specifically, within a reasonable time after the request, SFWPA
would cease Kelly Ridge Powerhouse discharges, and water that would otherwise have
been diverted from Ponderosa Dam to Kelly Ridge Powerhouse would be spilled into
Lake Oroville. Upon notification from California DWR that the shutdown is no longer
needed, SFWPA would cease the Ponderosa DamÓs spill into Lake Oroville and reinitiate
Kelly Ridge Powerhouse discharges. If practicable, SWFPA would draw down the
Miners Ranch Reservoir water surface elevation to 878.00 feet above mean sea level
(msl) and refill it to 887.00 feet msl. Based on your August 6, 2021 response to AIR #3,
it would take 250 hours to refill the reservoir from the minimum elevation of 878.00 to
887.00 feet msl. SFWPA would restart Kelly Ridge Powerhouse discharges no later than
the Miners Ranch Reservoir reaching a water surface elevation of 887.00 feet msl.
Following the shutdown and startup, California DWR would reimburse SFWPA for lost
generation revenue and penalties resulting from California DWRÓs requested outage.
To enable our evaluation of potential effects of the SA on environmental
resources, please clarify any/all misrepresentations of our understanding of actions that
will be part of implementation of the SA, as discussed above. In addition, please provide
the following information:
Project No. 2088-068 A-2
a) Conduits for the Drawdown. It is our understanding that implementation of
the SA would be predicated on the need to stop warm water discharges from Kelly
Ridge Powerhouse to minimize effects on downstream water temperature. As
such, it is unclear whether drawdown of Miners Ranch Reservoir would be
accomplished by discharging the drawn-down water from the reservoir through the
Kelly Ridge Powerhouse, or through other routes out of Miners Ranch Reservoir
(e.g., MinerÓs Ranch water treatment plant and/or Bangor Canal). Please provide
the anticipated conduits and associated water volumes through which the Miners
Ranch Reservoir drawn-down water would be released. If this is not consistent for
all Kelly Ridge Powerhouse shutdown-startup events addressed by the SA, please
provide example daily drawdown volumes, by conduit, for anticipated 7-day, 14-
day, and 21-day outages.
b) Magnitude of the Drawdown. SA Recital 3.2 states that upon notification
of termination of the shutdown, SWFPA, if practicable, will complete the full
drawdown and refill of Miners Ranch Reservoir. Please explain what conditions
would determine whether it is ÐpracticableÑ to draw down the Miners Ranch
Reservoir water surface elevation to 878.00 feet msl and refill it to 887.00 feet
msl, and how likely you expect complete drawdown and refill to occur prior to
restarting discharges through Kelly Ridge Powerhouse. Your response should also
address any differences anticipated between 7-day, 14-day, and 21-day outages.
c) Timing of Startup. SA Recital 3.2 states that when the Miners Ranch
Reservoir water surface elevation reaches 887.00 feet msl Kelly Ridge
Powerhouse must be brought back online to prevent the potential overfill of
Miners Ranch Reservoir. However, the SA does not provide insight into the
likelihood of restarting Kelly Ridge Powerhouse discharges before the reservoir
reaches this elevation. Please explain what conditions would determine when
Kelly Ridge Powerhouse is restarted, and the expected magnitude of its discharges
anticipated for 7-day, 14-day, and 21-day outages.
d) Water Deliveries. The drawdown of Miners Ranch Reservoir has the
potential to hinder SFWPAÓs delivery of water for non-project consumptive uses
to the Miners Ranch water treatment plant, and Bangor Canal. Please explain how
SFWPA would meet its commitments to deliver water typically provided through
Miners Ranch Reservoir to these users. Please describe your approach to maintain
withdrawals for consumptive use or other reasons, including whether/how you
would release water from Ponderosa Reservoir through the Ponderosa Diversion
Tunnel into Miners Ranch Canal during drawdown of Miners Ranch Reservoir.
Project No. 2088-068 A-3
e) Miners Ranch Reservoir Erosion. The rapid drawdown and refill of Miners
Ranch Reservoir has the potential to erode the reservoirÓs shoreline. Please
provide an assessment of the potential magnitude of shoreline erosion during
drawdown and refill, and any proposed mitigation for such erosion.
From:"FERC eSubscription"
Subject:Dam Safety Compliance Report submitted in FERC P-619-000 by Pacific Gas and Electric Company,et al.
Date:Tuesday, August 24, 2021 6:31:32 AM
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On 8/24/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Pacific Gas and Electric Company
No Organization Found (as Agent)
Docket(s): P-619-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Dam Safety Compliance Report
Description: Pacific Gas and Electric Company submits responses to FERC comments on Phase 2 of the condition assessment at Grizzly Forebay Dam for the Bucks Creek Project under P-619.
To view the document for this Filing, click here
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or for phone support, call 866-208-3676.
245 Market Street
tƚǞĻƩ DĻƓĻƩğƷźƚƓ
San Francisco, CA 94105
Mailing Address:
Mail Code N11D
P.O. Box 770000
San Francisco, CA 94177
August 23, 2021
Via Electronic Submittal (E-File)
Frank L. Blackett, P.E., Regional Engineer
Federal Energy Regulatory Commission
Division of Dam Safety and Inspections
San Francisco Regional Office
100 First Street, Suite 2300
San Francisco, CA 94105-3084
RE: Bucks Creek Hydroelectric Project, FERC No. 619-CA
Grizzly Forebay Dam, NATDAM No. CA00333
Condition Assessment Phase 2 Response to FERC Comment
ENCLOSURE CONTAINS CUI//CEII DO NOT RELEASE
Dear Frank L. Blackett:
This letter presents responses to Federal Energy Regulatory Commission (FERC)
comments regarding Pacondition assessment at
Grizzly Forebay Dam, which is part of PG&E Bucks Creek Hydroelectric Project, FERC
No. 619. FERC provided a comment in a letter to PG&E dated August 11, 2021.
August 11, 2021 comment is provided in Enclosure 1.
Should you have any technical questions concerning this matter, please contact
dam safety engineer, Ben Fontana, at (530) 762-9459. For general questions, please
, Jamie Visinoni, at (530) 215-6676.
Sincerely,
Teri Smyly
Manager, FERC and DSOD Compliance
Enclosure: CUI//CEII DO NOT RELEASE
1. PG&E's Response to Comment from FERC's Letter Dated August 11, 2021
From:"FERC eSubscription"
Subject:Delegated Order issued in FERC P-803-000
Date:Friday, August 27, 2021 3:25:06 PM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on
links, or replying..
On 8/27/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-803-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Delegated Order
Description: Letter order authorizing Pacific Gas and Electric Company to proceed with construction of the Leakage Repair Project
under P-803.
To view the document for this Issuance, click here
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Comments and Suggestions can be sent to this email address: mailto:FERCOnlineSupport@Ferc.gov
FEDERAL ENERGY REGULATORY COMMISSION
Office of Energy Projects
Division of Dam Safety and Inspections San Francisco Regional Office
100 First Street, Suite 2300
San Francisco, CA 94105-3084
(415) 369-3300 Office (415) 369-3322 Facsimile
August 27, 2021
In reply refer to:
Project No. 803-CA
Jan Nimick, Vice President
Pacific Gas and Electric Company
Mail Code: N11E
PO Box 770000
San Francisco, CA 94177-0001
Re: Leakage Repair Project at Hendricks Head Dam
Dear Mr. Nimick:
This is in response to a letter dated August 20, 2021 from David Ritzman that
submitted Quality Control Inspection Program (QCIP) and Temporary
Construction Emergency Action Plan (TCEAP) for the Leakage Repair Project at
Hendricks Head Dam, which is part of the DeSabla-Centerville Project, FERC No. 803.
Based upon our review, PG&E satisfactorily addresses our previous
review comments and we have no further comments. Provided that PG&E obtains all
necessary federal, state, and local permits, and maintains compliance with those permits
and the conditions of the project license, PG&E is authorized to proceed with
construction of the Leakage Repair Project.
In view of the short duration of the planned project, we are waiving our typical
requirement to prepare and submit monthly construction reports for this project. Within
90 days following the completion of construction, or by February 28, 2022, a final
construction report which addresses the applicable items in Enclosure 1 should be
submitted.
Within 90 days of completion of construction of the facilities authorized by this
letter, you must file for Commission approval, revised Exhibits A, F, and G, as
applicable, to describe and show those project facilities as built. If you determine that
previously approved exhibits reflect the as-built facilities and no revisions are necessary,
2
you must file a letter stating the approved exhibits reflect the as-built project facilities.
To assist Commission staff in the review of any revised Exhibit A, we strongly
recommend that you file a revised Exhibit A, in its entirety, in two forms:
1. A strikethrough format (i.e., strikethrough items to be removed, and underline
or bold items to be added to the exhibit), and
2. A final, clean copy incorporating the changes (i.e., without the strikethrough,
underline, and bold notations).
You must separate Exhibit F drawings from the other project exhibits, and label
and file them as Critical Energy Infrastructure Information (CEII) material under
18 CFR § 388.113. The submission should consist of, as applicable: 1) a public portion
consisting of a cover letter and the Exhibits A and G; and 2) a CEII portion containing
only the Exhibit F drawings.
Please file the requested information
https://www.ferc.gov/ferc-online/overview. For all Dam Safety and Public Safety
Documents, select Hydro: Regional Office and then choose the San Francisco Regional
Office from the eFiling menu. The cover page of the filing must indicate that the
material was eFiled. For assistance with eFiling, contact FERC Online Support at
FERCOnlineSupport@ferc.gov, (866) 208-3676 (toll free), or (202) 502-8659 (TTY).
Also, within 90 days of completion of construction, or by February 28, 2022,
PG&E should submit the following construction certifications, which must be verified in
accordance with Title 18, Section 12.13 of the Code of Federal Regulations (18 CFR
12.13):
1. A certification by the Design Engineer that the project was constructed in
accordance with the design intent.
2. A certification by the Quality Control Manager that the inspection and testing
program resulted in the conclusion that the project was constructed in
accordance with the plans and specifications reviewed by the Commission.
3. A certification by the Licensee (PG&E) that the project was constructed in
accordance with the design intent and in accordance with the plans and
specifications reviewed by the Commission.
If the plans and specifications are revised during the construction process, it is
PG&E
Design Engineer, the Resident Engineer, the Project Manager, the FERC, and PG&E,
prior to proceeding with the changes. Also, you are reminded that no changes may be
made to the operation of the project without first coordinating those proposed changes
with the FERC.
3
We appreciate your continued efforts dam
safety program. If you have questions, please contact Mr. Michael Vail at
(415) 369-3346.
Sincerely,
Frank L. Blackett, P.E.
Regional Engineer
Enclosures
1. Final Construction Report
2. Sample Final Construction Certifications
cc:
Ms. Sharon Tapia, Chief
CA Dept. of Water Resources
Division of Safety of Dams
P.O. Box 942836
Sacramento, CA 94236-0001
Items to be Addressed in Final Construction Report for Enclosure 1
Leakage Repair Project at Hendricks Head Dam
FERC No. 803
FINAL CONSTRUCTION REPORTS FROM LICENSEES
The Final Construction Report should be submitted within 90 days of completion of the
work. This report should include all information pertinent to dam safety in a concise form. It
should be included in the project file and should be given to the independent consultant for his
or her safety inspection and analyses, if applicable. As such, the report should contain a
summary of information in each of the applicable sections indicated below (the information was
previously presented in the monthly reports). Construction difficulties should be reported under
the appropriate sections. For conciseness, test results should be presented in a tabular format,
with an indication of the applicable standards. Finally, in those cases where there is nothing to
report under a specific heading, a statement of non-applicability will suffice.
1. General. Briefly present the reason for construction and description of the work with dates of
the beginning and end of construction. Include reservoir drawdown and filing dates, and any
findings regarding the original structure.
2. Foundations. Discuss the condition of the foundation (faults, etc.) and the treatment of the
foundation. Attach a foundation mapping.
3. Embankments. Describe the equipment and the types of materials used in filters and fills.
Attach gradation and compaction requirements and all test results.
4. Concrete work. Describe the equipment and the types of materials used in all concrete work.
Include all grout test results and describe any surface treatments.
5. Anchors. Present a summary of any drilling operations, including boring logs; results of water
pressure tests; anchor design calculations, design loads, and specifications; results of grout tests;
results of proof and performance tests; and a summary of the acceptance criteria.
6. Instrumentation. Present plots of existing instrumentation readings taken during construction
if the readings are affected by the work. Include a plan and schedule for calibration of all new
instrumentation.
7. Drawings. Attach as-built drawings reduced in size to 8.5"x11" or 11"x17". The drawings
should include plan and section views, and details of the structures affected by the new work.
The plan and section views should show any new instrumentation that was installed as part of
the work.
Page 1 of 1
Enclosure 2
CERTIFICATION
By Design Engineer
CERTIFICATION OF CONSTRUCTION PAGE 1 OF 3
FERC Project No.
Construction Project Description:
Design Drawings/Specifications:
Quality Control and Inspection Program (QCIP) dated:
This is a certification by the Design Engineer that the project was constructed in accordance
with the design intent.
*****************************************************************************
VERIFICATION
STATE OF CALIFORNIA \]
COUNTY OF \], SS:
The undersigned, being first duly sworn, states that he/she has read the above document
and knows the contents of it, and that all of the statements contained in that document are
true and correct, to the best of his/her knowledge and belief (per 18CFR Part 12,
Paragraph 12.13).
Design Engineer (Print Name)
Signature
\[STAMP\]
Sworn to and subscribed before me
this day of , 20
NOTARY PUBLIC \[SEAL\]
Enclosure 2
CERTIFICATION
By Quality Control Manager
CERTIFICATION OF CONSTRUCTION PAGE 2 OF 3
FERC Project No.
Construction Project Description:
Design Drawings/Specifications:
Quality Control and Inspection Program (QCIP) dated:
This is a certification by the Quality Control Manager that the inspection and testing program
resulted in the conclusion that the project was constructed in accordance with the plans and
specifications reviewed by the Commission.
*****************************************************************************
VERIFICATION
STATE OF CALIFORNIA \]
COUNTY OF \], SS:
The undersigned, being first duly sworn, states that he/she has read the above document
and knows the contents of it, and that all of the statements contained in that document are
true and correct, to the best of his/her knowledge and belief (per 18CFR Part 12,
Paragraph 12.13).
Quality Control Manager (Print Name)
Signature
\[STAMP\]
Sworn to and subscribed before me
this day of , 20
NOTARY PUBLIC \[SEAL\]
Enclosure 2
CERTIFICATION
By Licensee or Exemptee
CERTIFICATION OF CONSTRUCTION PAGE 3 OF 3
FERC Project No.
Construction Project Description:
Design Drawings/Specifications:
Quality Control and Inspection Program (QCIP) dated:
This is a certification by the Licensee or Exemptee that the project was constructed in
accordance with the design intent and in accordance with the plans and specifications reviewed
by the Commission.
************************************************************************
VERIFICATION
STATE OF CALIFORNIA \]
COUNTY OF \], SS:
The undersigned, being first duly sworn, states that he/she has read the above document
and knows the contents of it, and that all of the statements contained in that document are
true and correct, to the best of his/her knowledge and belief (per 18CFR Part 12,
Paragraph 12.13).
For Licensee or Exemptee (Print Name)
Signature
\[STAMP\]
Sworn to and subscribed before me
this day of , 20
NOTARY PUBLIC \[SEAL\]
From:"FERC eSubscription"
Subject:Delegated Order issued in FERC P-2107-044
Date:Wednesday, September 1, 2021 7:15:01 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking
on links, or replying..
On 9/1/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-2107-044
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Delegated Order
Description: Order Modifying and Approving Temporary Variance of Instream Flow Requirement re Pacific Gas and Electric
Company under P-2107.
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176 FERC ¶ 62,104
UNITEDSTATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Pacific Gas and Electric CompanyProject No. 2107-044
ORDERMODIFYING AND APPROVING TEMPORARY VARIANCE OF
INSTREAM FLOW REQUIREMENT
(IssuedSeptember 1, 2021)
1.OnJuly 27, 2021,Pacific Gas and Electric Company (licensee) filed a request
with the Federal Energy Regulatory Commission (Commission) for a temporary variance
of theinstreamflow requirement at thePoeHydroelectric Project No. 2107. The project
is located on theNorth Fork Feather River, just upstream of Lake Oroville,near the
Town of Pulga, inButte County,California.The projectoccupies federal lands within
thePlumas National Forest.
License Requirement
2.The California State Water Resources Control Board (California SWRCB) Water
Quality Certification conditionsfiled on December 29, 2017, and U.S. Forest Service
(ForestService)Section 4(e) conditions filed on July 9, 2018, are included in the project
license as appendices A and B, respectively. California SWRCB condition 1 and Forest
Servicecondition 23, both set forth instream flow requirements to be released into the
Poe bypass reach (Poe reach)during each month of the year and under specified water
year classification.Specifically, the licensee is required to release250cubic feet per
second (cfs) to the Poe reachduringSeptember, and 180 cfs during Octoberduring a
Critically Dry water year classification.
3.OnApril 16, 2020,the Commission approved the licensee’sBypass Reach Fish
1
and Benthic Macroinvertebrate Monitoring Plan(Plan).ThePlan allows the licensee to
reduce streamflow to implement the Plan.When reducing the streamflow to implement
the Plan, the licensee must: 1) implement the Plan between September 15 and October
15, with the goal of completing monitoring by the end of October; 2) reduce streamflow
to no less than 55 cfs; 3) reduce streamflownolonger than 10 days; 4) useramping rates
during the stream flow reduction that are nogreater than 100 cfs per hour;and5) reduce
streamflow only if no whitewater boating releases have occurred for 7 consecutive days.
1
171 FERC ¶ 62,050
Project No. 2107-044
-2-
Further, the licensee must notify the resource agencies of its proposed monitoring
schedule at least 45 days prior to the monitoring being conducted.
Licensee’s Request
4.The licensee requests a temporary variance of the instreamflow requirementsto
the Poe reach.The licensee states that it is planning to conduct fishand benthic
macroinvertebrate monitoring under itsBypass Reach Fish and Benthic
Macroinvertebrate Monitoring Plan.The licensee proposes to reduce the instream flow
to 55 cfsbeginning on September 19, 2021and lasting through September29, 2021, a
total of 10 days in order to provide adequate and safe stream conditions to conduct the
biological monitoring. The licensee proposes to implement a targeted downramping rate
of no greater than 40 cfs.
Agency Consultation
5.The licensee provided a written request to the resource agencies for concurrence to
temporarily reduce stream flows in order to conduct the biological monitoring. The
request was submitted on June 29, 2021and circulated via email to the Forest Service,
California SWRCB,California Department of Fish and Wildlife(California DFW), and
U.S. Fish and Wildlife Service(FWS). By emailsdated from June 30, 2021to
July23,2021, the resource agencies concurred with the licensee’s proposed flow
2
reduction.
Discussion and Conclusion
6.The licensee is requesting Commission approval for a temporary variance of the
instream flow requirement atthe project tofacilitateCommission-approved fish and
benthic macroinvertebrate monitoring activities. The proposed variance would result in a
reductionof flow for the designated critically dry year classification from 250 cfs to 55
cfs (22 percent) for 10days in September2021.
7.The licensee’s request to temporarily reduce instream flow is necessary to safely
and effectively implement itsPlan. The periodic reduction of flow and any negative
effects to biota in order to conduct the monitoring was considered during the
development of the Plan. Implementation of the Plan includes safeguards such as the
requirement to conduct the sampling between September 15 and October 15, limit the
reduction of the instream flow to 55 cfs, as well as ramping rate maximums, and
notification to the resource agencies within 45 days so that their input is considered prior
toreducing the flow and conducting the monitoring.
2
California SWRCB does not relay concurrence to the licensee because WQC
condition 1 already allows for flow variances in agreement with the Commission.
Project No. 2107-044
-3-
8.While safeguards are built into the Plan,observations must be conducted to ensure
thatthe flow reductiondoes notimpact aquatic resources. Therefore, as a precaution, the
licensee should be required to conduct daily visual inspections of the monitoring reach to
evaluateanybiological response totheinstreamflow variance. If there are any signs of
fish mortality, stranding, or obvious distress, the licensee should restore the required
instreamflow and consult with the Forest Service,California DFW, and FWSon a
modified flow reduction protocol before resuming flow reductions and monitoring
activities.
9.Thelicensee’sproposed temporary flow variance would facilitatefish and benthic
macroinvertebrate monitoring activities under the project license and promote safety of
staff conducting monitoring activities. Thelicensee developed its proposal in
consultation with, and has consistent support from,the resource agencies. The protective
measures regarding time of year, flow reduction limit, and ramping rate limitsshould
provide for minimal adverse effects to biota.Therefore, the licensee’s proposed flow
varianceshould be approved.
The Directororders:
(A)Pacific Gasand Electric Company’s (licensee) request for a temporary
variance of the instreamflow requirement atthe Poe HydroelectricProject No. 2107,
filed with the Federal Energy Regulatory Commission (Commission)onJuly 27, 2021,as
modified in paragraph (B),is approved.
(B)The licensee must conduct daily visual inspections of the monitoring reach
to evaluate any biological response totheinstreamflow variance. If there are any signs
of fish mortality, stranding, or obvious distress, the licensee mustrestore the required
instreamflow and consult with the U.S.Forest Service,California Department of Fish
and Wildlife, and U.S. Fish and Wildlife Serviceon a modified flow reduction protocol
before resuming flow reductions and monitoring activities.
(C)This order constitutes final agency action. Any party may file a request for
rehearing of this order within 30 days from the date of its issuance, as provided in section
313(a) of the Federal Power Act, 16 U.S.C. § 825l(2018), and the Commission’s
regulations at 18 C.F.R. § 385.713 (2020). The filing of a request forrehearing does not
Project No. 2107-044
-4-
operate as a stay of the effective date of this order, or of any other date specified in this
order. The licensee’s failure to file a request for rehearing shall constitute acceptance of
this order.
Andrea Claros
Chief, Aquatic Resources Branch
Division of Hydropower Administration
and Compliance
From:"FERC eSubscription"
Subject:DOCKET CHANGE- Procedural Motion submitted in FERC P-2107-044 by Pacific Gas and Electric Company,et al.
Date:Tuesday, August 24, 2021 6:36:23 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening
attachments, clicking on links, or replying..
On 7/27/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC),
Washington D.C.:
Filer: Pacific Gas and Electric Company
PGE (as Agent)
Docket(s): P-2107-044
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Procedural Motion
Description: Pacific Gas and Electric Company submits Request for Variance of Instream Flow Release for 2021
Monitoring Efforts re the Poe Hydroelectric Project under P-2107.
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Via eFile
August 24, 2021
John Spain, P.E.
Regional Engineer
Federal Energy Regulatory Commission
th
19 West 34 St, Suite 400
New York, NY 10001
Subject: Brookfield Power Piney and Deep Creek LLC (“Brookfield”) Piney Project 309-PA
Twelth Part 12D Inspection Follow Up - Plan and Schedule
Dear Mr. Spain:
Brookfield Power Piney & Deep Creek, LLC (Brookfield) herein provides its plan and schedule addressing
the Federal Energy Regulatory Commission’s (FERC) Twelfth Part 12D Inspection follow up letter dated
August 16, 2021 for the Piney Hydroelectric Project in Clarion County, PA.
Should any additional information be required, please contact me by phone at 857-265-8298, by e-mail
at amy.burnett@brookfieldrenewable.com, or by mail at Brookfield Renewable, 126 Lamberton Lane,
Hawley, PA 18428.
Sincerely,
Amy L. Burnett
Compliance Specialist
Brookfield Power Piney & Deep Creek LLC
Piney Station
2000 River Road Tel:814.226.8630
Clarion, PA 16214 www.brookfieldrenewable.com Fax: 814.226.5433
From:"FERC eSubscription"
Subject:DOCKET CHANGE- Project Operations Compliance Report submitted in FERC P-619-172 by Pacific Gas and Electric Company,et al.
Date:Wednesday, September 1, 2021 9:35:51 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 8/16/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Pacific Gas and Electric Company
No Organization Found (as Agent)
Docket(s): P-619-172
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Project Operations Compliance Report
Description: Pacific Gas and Electric Company submits notice of a new standby generator included in Exhibit F-3, plans and sections drawing of the intake structure at Grizzly Dam, which
is part of
for the Bucks Creek Project under P-619.
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From:"FERC eSubscription"
Subject:Environmental and Recreational Compliance Report submitted in FERC P-619-000 by Pacific Gas and Electric Company,et al.
Date:Friday, August 27, 2021 10:28:52 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 8/27/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Pacific Gas and Electric Company
No Organization Found (as Agent)
Docket(s): P-619-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Environmental and Recreational Compliance Report
Description: Pacific Gas and Electric Company submits Report on Minimum Instream Flow Deviation that occurred from Lower Bucks Lake to Bucks Creek on July 28, 2021 re the Bucks Creek
Hydroelectric Project under P-619.
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245 Market Street
tƚǞĻƩ DĻƓĻƩğƷźƚƓ
San Francisco, CA 94105
Mailing Address:
Mail Code N11D
P.O. Box 770000
San Francisco, CA 94177
August 27, 2021
Via Electronic Submittal (E-File)
Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
Office of Energy Projects
888 First Street, N.E.
Washington, DC 20426
RE: Bucks Creek Hydroelectric Project, FERC Project No. 619-CA
Report on Minimum Instream Flow Deviation from Lower Bucks Lake to
Bucks Creek
Dear Secretary Bose:
This letter provides the Federal Energy Regulatory Commission (FERC) with Pacific Gas
-up report on a deviation from the minimum
instream flow (MIF) requirements set forth in Article 13(a) of the license for the Bucks
Creek Hydroelectric Project, FERC Project No. 619. The deviation occurred from Lower
Bucks Lake to Bucks Creek on July 28, 2021 between 9:45 am and 11:15 am, and was
San Francisco Regional Office on July 29, 2021. The
conditions identified in this report resulted in no personal injuries, no damage to private
property, nor impacts to biological or cultural resources.
License Requirements
Per Article 13 of the Project license, PG&E must implement the minimum instream flows,
as stated below:
(A) The minimum flow releases specified in article 13 are amended as follows. The
licensee shall maintain continuous minimum flow releases as follows:
(1) Minimum streamflow from Lower Bucks Lake to Bucks Creek:
Period Flow, in cubic feet per second (cfs)
November 1 through April 30 4 cfs
May 1 through June 30* 8 cfs
July 1 through October 31 6 cfs
Kimberly D. Bose, Secretary
August 27, 2021
Page 2
Per Article 13 of the Project license, PG&E must report deviations of miminum instream
flow requirements as follows:
(D) So that the Commission may monitor the licensee's compliance with the
schedule of minimum releases required by paragraph (A) above, the licensee shall
report any deviations below the required minimum flow to the Commission within 30
days from the date that the data become available indicating the deviation.
Additionally, the licensee shall provide the report to the U.S. Forest Service, the
California Department of Fish and Game, and the U.S. Fish and Wildlife Service at
the same time it files the report with the Commission. The report shall, to the extent
possible, identify the cause, severity, and duration of the deviation, any
environmental impacts resulting from the deviation, a description of the measures
implemented to correct the deviation, and the measures implemented or proposed
to ensure deviation does not recur. Based on this report, and the Commission's
evaluation of the deviation, the Commission reserves the right to require
modification to project facilities and operations in order to ensure future
compliance.
Description of the Incident and Reponse
The Dixie fire started on July 13, 2021 around 4:40 pm. On July 20, 2021, PG&E
preemptively de-energized the Bucks distribution line for safety. This line powers the motor
operated outlet valve (MOV) for NF-82 by providing partial station service to the Lower
Bucks Dam and Grizzly Powerhouse Intake Building. Without power, the MOV remained
stationary, meeting the minimum instream flow requirement of 6 cfs. On July 28, 2021, a
temporary standby generator was set up to power the entire station. When the entire
station regained power, the MOV energized and automatically operated to an erroneous
setpoint which set the instream flow to 1.15 cfs. The erroneous setpoint was established
when the station lost power, with no indication of the change in SCADA. The deviation
occurred on July 28, 2021, between 10:00 am and 11:30 am (Table 1). When the Rock
Creek switching center operator recognized that a downstream gage reported a decrease
in flow, they immediately notified onsite personnel who opened the valve to restore flows.
Table 1 Minimum Instream Flow Release at NF 82
Time and Instream Flow
Date Release (cfs)
7/28/2021
7.56
9:00
7/28/2021
7.52
9:15
7/28/2021
7.54
9:30
Kimberly D. Bose, Secretary
August 27, 2021
Page 3
7/28/2021
7.54
9:45
7/28/2021
7.52
10:00
7/28/2021
1.16
10:15
7/28/2021
1.15
10:30
7/28/2021
1.15
10:45
7/28/2021
1.15
11:00
7/28/2021
1.15
11:15
7/28/2021
7.39
11:30
7/28/2021
7.36
11:45
7/28/2021
7.39
12:00
Biological Evaluation
Bucks Creek is steep and relatively incised with substrate dominated by large bed
1
elements (boulder or boulder-cobble). The dominant channel morphology is cascade and
step-pool. At the flows present prior to the start of the event, flows would have been well
within the confined, low flow channel.
Surveys for fish and amphibians were conducted in Lower Bucks Creek as part of project
2
relicensing studies in 2015 to 2017. Brown trout were the only species of fish observed in
Bucks Creek immediately below the dam, while rainbow trout were the most dominant
species further downstream near the confluence of Bucks Creek with the North Fork
Feather River. At the time of the event (July), spawning would have concluded for both
brown trout, which are fall spawners, and rainbow trout, which are spring spawners. Fry,
Age 1+ and older brown and rainbow trout would be present. Fry would be well developed
and free-swimming at this time of year.
1
PG&E and City of Santa Clara 2016a. Updated Technical Memorandum (TM-22): Channel Morphology and
Fluvial Geomorphic Processes (GS-S2). July 20, 2016.
2
PG&E and City of Santa Clara 2016b. Updated Technical Memorandum (TM-11): Stream Fish Populations
(FA-S5). September 23, 2016 and PG&E and City of Santa Clara 2016c. Updated Technical Memorandum
(TM-12): Special-Status Amphibians and Aquatic Reptiles (RTE-S1). December 9, 2016.
Kimberly D. Bose, Secretary
August 27, 2021
Page 4
3
No sensitive amphibians were observed in Bucks Creek. However, Sierra Nevada Yellow-
legged frog, listed as endangered under the federal Endangered Species Act, were
observed in Bear Ravine in 2017 (PG&E and City of Santa Clara 2018). Bear Ravine is a
tributary to Bucks Creek approximately 0.2 miles downstream of Lower Bucks Dam.
Given the range of flows involved, the channel morphology, the species and life stage of
fish present, the season, and the short duration of the event, it is very unlikely that there
would have been any effect on fish or other aquatic resources below Lower Bucks Dam.
Corrective Actions
PG&E has developed a procedure to transfer station power at Lower Bucks Dam to a
temporary standby generator source. This includes verifying the digital setpoint in the
Remote Terminal Unit (RTU) for NF-82 before and after transferring station power. Under
this procedure, an erroneous setpoint will be caught and reset before a deviation occurs.
For any questions regarding this notification, senior license
coordinator, Jamie Visinoni, at (530) 215-6676 or at jnvs@pge.com.
Sincerely,
Teri Smyly
Manager, FERC and DSOD Compliance
cc: via email
Amy Lind, USFS - amy.lind@usda.gov
Leigh Bartoo, USFWS - Aondrea_Bartoo@fws.gov
Beth Lawson, CDFW - Beth.Lawson@wildlife.ca.gov
Michael Maher, CDFW Michael.Maher@wildlife.ca.gov
3
PG&E and the City of Santa Clara. 2018. Technical Memorandum (TM-42), 2017 Sierra Nevada Yellow-
legged Frog Surveys and Environmental DNA sampling in Milk Ranch Conduit Diverted Tributaries: Bear
Ravine (Diversion No. 8), South Fork Grouse Hollow Creek (Diversion No. 3), and Milk Ranch Creek
(Diversion No. 1).
From:"FERC eSubscription"
Subject:Formal Notice issued in FERC P-619-164
Date:Wednesday, August 25, 2021 2:56:56 PM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 5/27/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-619-164
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Formal Notice
Description: Notice of 06/14/2021 Meeting re Pacific Gas and Electric Company et al under P-619.
To view the document for this Issuance, click here
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UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Pacific Gas and Electric CompanyProject No. 619-164
The City of Santa Clara
NOTICE OF MEETING
(May27,2021)
a.Project Name and Number: Bucks CreekHydroelectric Project No. 619
b.Dateand Timeof Meeting: June14, 2021;1:00 p.m. –2:00p.m.EasternTime
c.FERC Contact: Frank Winchell,frank.winchell@ferc.gov
d.Purpose of Meeting: To discuss the final Programmatic Agreement issued by the
Commission for the relicensing of the Bucks Creek Hydroelectric Project.
e.All local, state, and federal agencies, Indian tribes, and other interested parties are
invited toattend; however, participation will be limited between the Commission’s
staff, Advisory Council on Historic Preservation,and California State Historic
Preservation Office.Please email the FERC contact noted above by June 9,2021,to
receive specific instructions on how toattend.The meeting will be held remotely
using Microsoft Teams.
Kimberly D. Bose,
Secretary.
From:"FERC eSubscription"
Subject:General Correspondence issued in FERC P-619-164
Date:Tuesday, August 24, 2021 7:45:09 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 8/24/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-619-164
Lead Applicant: Pacific Gas and Electric Company
Filing Type: General Correspondence
Request for Additional Information
Description: Letter requesting Pacific Gas and Electric Company to file additional information within 30 days re the California State Water Resources Control Board for water quality
certification for
the Bucks Creek Project under P-619.
To view the document for this Issuance, click here
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FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON D.C. 20426
August 24, 2021
OFFICE OF ENERGY PROJECTS
Project No. 619-164 California
Bucks Creek Project
Pacific Gas and Electric Company
Janet Walther, Senior Manager
Hydro Licensing and Compliance
Pacific Gas and Electric Company
jmw3@pge.com
David Ritzman, Chief Dam Safety Engineer
Pacific Gas and Electric Company
dlrm@pge.com
Reference: Additional Information Request
Dear Ms. Walther and Mr. Ritzman:
On August 14, 2018, Pacific Gas and Electric Company and the City of Santa
Clara (licensees) applied to the California State Water Resources Control Board for water
quality certification (certification) for the Bucks Creek Project, which the California State
Water Resources Control Board (Water Board) received the same day. On October 23,
2020, the Water Board issued a certification for the Bucks Creek Project that includes 50
conditions.
After reviewing this certification, we have identified additional information needs
regarding the potential effects of certification Condition 10 - Woody Material
Management on dam safety. The additional information needs are detailed in Schedule A
(enclosed). Please file the requested information within 30 days of the date of this letter.
If the requested information causes parts of the license application to be
inaccurate, those parts must also be revised and refiled by the due date.
The Commission strongly encourages electronic filing. Please file the requested
information using the Commission’s eFiling system at
https://ferconline.ferc.gov/FERCOnline.aspx
. For assistance, please contact FERC
Online Support at FERCOnlineSupport@ferc.gov, (866) 208-3676 (toll free), or (202)
502-8659 (TTY). In lieu of electronic filing, you may submit a paper copy. Submissions
2
sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary,
Federal Energy Regulatory Commission, 888 First Street NE, Washington, D.C. 20426.
Submissions sent via any other carrier must be addressed to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville,
MD 20852. The first page of any filing should include docket numbers P-619-164.
If you have any questions regarding this letter, please contact Devan Mahadevan
at (202) 502-6787 or via email at Pathmathevan.Mahadevan@ferc.gov
, or Evan Williams
at (202) 502-8462 or via email at Evan.Williams@ferc.gov.
Sincerely,
Timothy Konnert, Chief
West Branch
Division of Hydropower Licensing
Attachments: Schedule A—Request for Additional Information
A-1
Schedule A
Project No. P-619-164
REQUEST FOR ADDITIONAL INFORMATION
The following additional information needs have been identified regarding the
potential effects of the Water Board’s certification Condition 10 on dam safety. Please
file the requested information within 30 days of the date of this letter.
1. The Water Board’s certification Condition 10 requires the licensees to pass large
woody material over Grizzly Forebay Dam and Lower Bucks Lake Dam during spill
events and manually relocate wood at Bucks Lake Spillway to the Lower Bucks Lake
Spillway. This process could result in an accumulation of woody debris that would
reduce the spillway capacities for the project dams (e.g., Lower Bucks Lake Dam
Emergency Spillway) as well as other dams associated with downstream hydroelectric
projects owned by PG&E (i.e., P-1962 Cresta and P-2107 Poe (including Big Bend dam).
This is especially true for those dams that rely on gates, where debris clogging may
occur.
Please provide a response from PG&E’s Chief Dam Safety Engineer that he is
aware of certification Condition 10 and either: (1) include PG&E’s justification that
Condition 10 will not adversely affect the spillway capacities of the above dams; or (2)
state what additional measures PG&E will implement (e.g., the development of a Woody
Debris Management Plan) to ensure Condition 10 does not adversely affect the spillway
capacities of the dams.
From:"FERC eSubscription"
Subject:General Correspondence issued in FERC P-803-000
Date:Thursday, August 26, 2021 3:35:15 PM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments,
clicking on links, or replying..
On 8/26/2021, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-803-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: General Correspondence
Description: Letter to Pacific Gas and Electric Company acklowledging receipt of the 2019 and 2020 Emergency Action Plan
annual updates for the DeSabla-Centerville Project under P-803.
To view the document for this Issuance, click here
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3073__;!!KNMwiTCp4spf!UQlt8vDXmO70N7rcOdVUWs-RPgz3OTS6g4ESiVvaI_0MmcbX9ZxPusadb81g-
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FEDERAL ENERGY REGULATORY COMMISSION
Office of Energy Projects
Division of Dam Safety and Inspections San Francisco Regional Office
100 First Street, Suite 2300
San Francisco, CA 94105-3084
(415) 369-3300 Office (415) 369-3322 Facsimile
August 26, 2021
In reply refer to:
Project No. 803-CA
Jan Nimick, Vice President
Pacific Gas and Electric Company
Mail Code: N11E
PO Box 770000
San Francisco, CA 94177-0001
Re: 2019 and 2020 Emergency Action Plan Annual Updates for the DeSabla-Centerville
Project
Dear Mr. Nimick:
This is in response to letters dated September 3, 2020 and December 2, 2020 from
Andrew Hagen that respectively submitted the 2019 and 2020 Emergency Action Plan
(EAP) annual updates for the DeSabla-Centerville Project, FERC No. 803. We
acknowledge receipt of the 2019 and 2020 EAP updates, and we will replace the
appropriate pages in our copy of the EAP and destroy the outdated pages upon our return
to the office.
public
safety program. If you have questions, please contact Mr. Michael Vail at
(415) 369-3346.
Sincerely,
Frank L. Blackett, P.E.
Regional Engineer
From:"FERC eSubscription"
Subject:Part 12 Consultant Safety Inspection Reports submitted in FERC P-619-000 by Pacific Gas and Electric Company,et al.
Date:Thursday, September 2, 2021 6:36:35 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening
attachments, clicking on links, or replying..
On 9/2/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington
D.C.:
Filer: Pacific Gas and Electric Company
No Organization Found (as Agent)
Docket(s): P-619-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Part 12 Consultant Safety Inspection Reports
Description: Pacific Gas and Electric Company submits Response to Comments for 11th Part 12D Safety Inspection
for Bucks Creek Hydroelectric Project, under P-619.
To view the document for this Filing, click here
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245 Market Street
tƚǞĻƩ DĻƓĻƩğƷźƚƓ
San Francisco, CA 94105
Mailing Address:
Mail Code N11D
P.O. Box 770000
San Francisco, CA 94177
September 1, 2021
Via Electronic Submittal (E-File)
Frank L. Blackett, P.E., Regional Engineer
Federal Energy Regulatory Commission
Division of Dam Safety and Inspections
San Francisco Regional Office
100 First Street, Suite 2300
San Francisco, CA 94105-3084
RE: Bucks Creek Hydroelectric Project, FERC No. 619-CA
Bucks Diversion Dam, NATDAM No. CA00331
11th Part 12D Safety Inspection Comment Response
ENCLOSURE CONTAINS CUI//CEII DO NOT RELEASE
Dear Frank L. Blackett:
This letter presents to the Federal
the 11th Part 12D safety
inspection report for Bucks Diversion Dam, which is part of Bucks Creek
Hydroelectric Project, FERC No. 619. , dated
July 22, 2021.
(Enclosure 1).
dam safety engineer, Ben Fontana, at (530) 762-9459. For general questions, please
Jamie Visinoni, at (530) 215-6676.
Sincerely,
Teri Smyly
Manager, DSOD and FERC Compliance
Enclosure: CUI//CEII DO NOT RELEASE
1. July 22, 2021, Letter Regarding the 11th
Part 12D Safety Inspection Report
From:"FERC eSubscription"
Subject:Project Operations Compliance Report submitted in FERC P-2088-000 by South Feather Water & Power Agency,et al.
Date:Friday, September 3, 2021 5:15:07 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 9/3/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: South Feather Water & Power Agency
Minasian Law Firm (as Agent)
Docket(s): P-2088-000
Lead Applicant: South Feather Water and Power Agency
Filing Type: Project Operations Compliance Report
Description: Application of South Feather Water & Power Agency for approval of Power Purchase Agreement pursuant to Federal Power Act Section 22 (16 U.S.C. 815).
under P-2088.
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PAUL R. MINASIAN, INC. TELEPHONE:
MINASIAN, MEITH,
JEFFREY A. MEITH (530) 533-2885
M. ANTHONY SOARES
SOARES, SEXTON &
DUSTIN C. COOPER FACSIMILE:
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COOPER, LLP
ANDREW J. McCLURE
JACKSON A. MINASIAN
A TTORNEYS A T L AW
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September 2, 2021
VIA ELECTRONIC FILING
Ms. Kimberly D. Bose, Secretary
Federal Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
RE:South Feather Power Project No. 2088
Dear Secretary Bose:
Enclosed for electronic filing on behalf of South Feather Water and Power Agency
(“SFWPA”) is a Request for Approval of a Power Sales Agreement Under Section 22 of the
Federal Power Act (“Request”). The Request seeks Commission approval pursuant to Section 22
of the Federal Power Act, 16 U.S.C. § 815, of a Power PurchaseAgreement (“Agreement”)
between SFWPA and Northern California Power Agency (“NCPA”) for electricity from the
South Feather Power Project No. 2088, as the term of the Agreement extends beyond the current
annual license term of the South Feather Power Project.
A draft public notice is enclosed with this filing. Please do not hesitate to contact me with
any questions concerning the foregoing.
Very truly yours,
MINASIAN, MEITH, SOARES,
SEXTON & COOPER, LLP
By s/ Andrew McClure
ANDREW J. McCLURE
AJM/vlh
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
South Feather Water and ) South Feather Power Project
Power Agency)No. 2088
NOTICE OF APPLICATION FOR APPROVAL OF
CONTRACT FOR THE SALE OF POWER
UNDER SECTION 22 OF THE FEDERAL POWER ACT
Take notice that on September 2, 2021, South Feather Water and
Power Agency (SFWPA) filed with the Commission an application for
approval of a contract for the sale of power from its licensed South Feather
Power Project No. 2088 for a period beyond expiration of its existing license.
The Project is located on the South Fork Feather River, Lost Creek, and Slate
Creek, in Butte, Yuba, and Plumas Counties, California.
Section 22 of the FPA, 16 U.S.C. § 815, provides that contracts for
the sale and delivery of power for periods extending beyond the termination
date of a license may be entered into upon the joint approval of the
Commission and the appropriate state public service commission or other
similar authority in the state in which the sale or delivery of power is made.
Comments on the request for approval of the power sales contract or
motions to intervene may be filed with the Commission no later than \[date\].
1
All documents (an original and eight copies) must be filed with: Kimberly D.
Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street,
NE, Washington, DC 20426. Please put the names “South Feather Power
Project No. 2088” on the first page of all documents. Comments may be filed
electronically via the Internet in lieu of paper. The Commission strongly
encourages electronic filings. See 18 CFR § 385.2001(a)(1)(iii) and the
instructions on the Commission's website www.ferc.gov under the “e-Filing”
link.
A copy of the filing is available for review in the Commission’s
Public Reference Room or may be viewed on the Commission's website
www.ferc.gov using the “eLibrary” link. Enter the docket number excluding
the last three digits in the docket number field to access the document. For
assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov
or toll-free at 1-866-208-3676, or for TTY, 1-202-502-8659.
You may also register online at www.ferc.gov/docs-
filing/esubscription.asp to be notified via email of new filings and issuances
related to this project or other pending projects. For assistance, contact FERC
Online Support. Kimberly D. Bose, Secretary.
2
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
South Feather Water and ) South Feather Power Project
Power Agency ) No. 2088
APPLICATION FOR APPROVAL OF CONTRACT FOR
THE SALE OF POWER UNDER SECTION 22 OF THE
FEDERAL POWER ACT
South Feather Water and Power Agency (“SFWPA”) hereby requests
the Federal Energy Regulatory Commission (“Commission”) approve,
1
pursuant to Section 22 of the Federal Power Act (“FPA”), a Power Purchase
2
Agreement between SFWPA and Northern California Power Agency
(“NCPA”), as the term of the Agreement extends beyond the license term of
the South Feather Power Project No. 2088 (“Project”). A Commission Order
approving the Agreement would be in the public interest,as it will allow
SFWPA to ensure long term power sales from an existing hydroelectric
project, will provide long-term revenue certainty to SFWPA, enablethe
1
16 U.S.C. § 815.
2
A copy of the Agreement is attached hereto as Attachment A.
1
agency to plan for Project maintenance and improvements, and provide a
long-term, reliable power supply to NCPA and its customers.
I. COMMUNICATIONS
All communications and service regarding this filing should be
directed to the following:
Andrew J. McClure
Minasian, Meith, Soares,
Sexton & Cooper, LLP
1681 Bird Street
P.O. Box 1679
Oroville, CA 95965
(530) 533-2885
amcclure@minasianlaw.com
II. BACKGROUND
SFWPA is a California Irrigation District, formed and existing under
the California Water Code. SFWPA is the Licensee of the 121.5 MW South
Feather Power Project. The original license for the Project, as amended,
3
expired on March 31, 2009. SFWPA filed a timely application for relicense
on March 26, 2007. The Project has operated under annual licenses since
3
The original license for the project was issued to the Oroville-Wyandotte Irrigation District
on July 21, 1952. Oroville-Wyandotte Irrigation District, 11 FPC 1129 (1952). An
amendment, effective April 1, 1959, established a license term of 50 years. Oroville-
Wyandotte Irrigation District, 21 FPC 613, 617 (1959). On January 28, 2004, the license was
amended to adopt the licensee’s new name, the South Feather Water and Power Agency.
Oroville-Wyandotte Irrigation District, 106 FERC ¶ 62,065 (2004).
2
4
2009. FERC’s issuance of the new license is pending completion of a
supplemental EIS to revise staff’s preferred licensing alternative and address
5
new information in the Project record. SFWPA does not deliver power
directly to its customers, but sells the power and related attributes to third-
party offtakers, who serve customers located within the jurisdiction of the
California Independent Services Operator (CAISO).
NCPA is a not-for-profit Joint Powers Agency consisting of 16
members, including municipalities, a rural electric cooperative, a port, a
public transit district, and a public utility district. Among its services, NCPA
engages in the purchase, aggregation, scheduling, and management of
electrical energy on behalf of its members.
SFWPA and NCPA have completed negotiations of a Power Purchase
Agreement which contemplates the sale of all Facility Energy, Capacity
Rights, Environmental Attributes, and ancillary products produced by
6
SFWPA’s South Feather Power Project (“Products”). NCPA has approved
4
74 FR 18,217 (April 14, 2009 Notice of Authorization for Continued Project Operation).
5
See e.g., June 8, 2021 Additional Information Request (Accession # 20210608-3031).
6
The Agreement defines “Products” as: “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.”
3
the Agreement, and SFWPA anticipates final approval by its Board of
Directors at the regular meeting scheduled for September 28, 2021. The
Agreement acknowledges the requirement to obtain FERC FPA Section 22
7
approval.
Delivery of electricity pursuant to the Agreement would commence on
December 19, 2021, and would continue uninterrupted for an Initial Delivery
Term through December 31, 2031. At the end of the Initial Delivery Term,
SFWPA may provide a written notice of termination. If no written notice of
termination is issued, the Agreement would automatically extend for an
additional ten (10) year period. Because the Initial Delivery Term (and term
of any subsequent extension) of the Agreement would “extend beyond the
date of termination of the license” of the Project (which is currently operating
under annual licenses, pending relicensing proceedings), Commission
approval is required under FPA Section 22.
II. THE COMMISSION SHOULD APPROVE THE TERM OF THE
AGREEMENT PURSUANT TO SECTION 22 OF THE FPA
SFWPA respectfully requests that the Commission find the Agreement
is in the public interest and approve it under Section 22. Section 22 provides
as follows:
7
See, e.g., Agreement (Attachment A hereto) at Section 11.1(h).
4
Whenever the public interest requires or justifies the
execution by the licensee of contracts for the sale and
delivery of power for periods extending beyond the date of
termination of the license, such contracts may be entered into
upon the joint approval of the commission and of the public-
service commission or other similar authority in the State in
which the sale or delivery of power is made, or if sold or
delivered in a State which has no such public-service
commission, then upon the approval of the commission, and
thereafter, in the event of failure to issue a new license to the
original licensee at the termination of the license, the United
States or the new licensee, as the case may be, shall assume
and fulfill all such contracts.
SFWPA is a California Irrigation District, empowered under the
California Water Code to, among other things, generate and sell electric
8
power. SFWPA’s Board of Directors is authorized under state law to set rates
for sales of SFWPA power, and is therefore the appropriate State authority to
9
approve the Agreement.
Section 22 approval is in the public interest because the Agreement
affords significant benefits to SFWPA, its customers, and NCPA. Continuing
the effectiveness of the Agreement beyond the expiration of the term of the
8
California Water Code § 22115 (“Any District . . . may provide for the acquisition,
operation, leasing, and control of plants for the generation, transmission, distribution, sale,
and lease of electric power . . .”)
9
California Water Code § 22117 (“The officers, agents, and employees of districts have the
same powers, duties, and liabilities respecting electric power and the acquisition, operation,
and control relating to it as they have respecting irrigation or districts.”); California Water
Code § 22289 (“Any district may in lieu in whole or in part of levying assessments fix and
collect charges for any service furnished by the district, including, but not limited to, all of the
following: . . . (e) sale of electric power . . . .”)
5
10
current annual license – through December 31, 2031,will provide financial
stability to SFWPA through the ongoing FERC relicensing and help support
relicensing costs and implementation of new measures that may be required
11
by the new license.
The Agreement will also facilitate Project operations
because it provides for NCPA to begin scheduling and dispatching the Project
in the CAISO markets on December 19, 2021, when SFWPA’s current
Scheduling Coordinator arrangements with Pacific Gas and Electric Company
will end. Additionally, Commission approval of the Agreement will enable
12
NCPA to provide long-term, clean, economic hydropower to its customers.
The Commission has previously approved applications under Section
22 to “accommodate situations where, in the absence of such sales extending
beyond the license termination date, the licensee would be unable to sell the
project power and thereby finance continued operation and maintenance of
13
the Project.” Here, the Agreement will enable SFWPA to continue to cover
operation and maintenance of the South Feather Power Project. The
Agreement’s ten (10) year term enables SFWPA to obtain the best price for its
10
Approval of a Contract term extending ten years beyond the term of the existing licenses
would be will within the range of extensions the Commission has previously approved.
11
See e.g., Am. Mun. Power-Ohio, Inc., 126 FERC ¶ 61,197 at PP 8-11 (2009).
12
See Brazos River Authority, 124 FERC ¶ 61,251 at P. 10 (2008).
13
Placer County Water Agency, 142 FERC ¶ 61,117, at P. 7 (2013).
6
generation. To qualify as long-term RPS under the California Renewable
Energy Resources Act and other applicable requirements, a power purchase
agreement must have a duration of ten years or longer, therefore, in order to
ensure power produced at the Project remains economically attractive over the
long-term relative to other potential clean energy resources, it is necessary for
the Agreement to have a term of at least ten (10) years.
Finally, in reviewing requests for approval under Section 22, the
Commission takes into consideration the interests of potential future licensees
(other than the existing licensee) and the United States (in the event of a
14
federal takeover) upon expiration of the current license. Here, no entity
other than SFWPA has filed an application for a new license; and the
Commission’s 2009 Environmental Impact Statement for the South Feather
Power Project stated that, “\[w\]e do not consider federal takeover to be a
15
reasonable alternative” for the Project. In addition, the Initial Delivery
Term extends only ten (10) years, the minimum necessary term for the project
to qualify for long-term RPS.
14
See e.g., Public Utility District No. 1 of Chelan County, WA, 114 FERC ¶ 61,314 (2006)
(approving contract where licensee faced no competition on relicensing, contract extended
three years after current license, and purchaser did not object).
15
P-2088 Final Environmental Impact Statement at 2-23 (Accession No. 20090604-4000).
7
IV.REQUEST FOR EXPEDITION
SFWPA is currently operating under a disputed “Force Majeure” event
under its existing long-term Power Purchase Agreement with Pacific Gas &
Electric Company. The Force Majeure term will end on December 18, 2021.
If SFWPA is unable to obtain Commission approval of the long-term
Agreement contemplated by this request, SFWPA would be required to sell its
power into the less lucrative, and more volatile short term power market.
Reductions in Project revenue as a result of the failure to obtain Commission
approval would detrimentally, and potentially materially, impact SFWPA and
its operation and maintenance of the Project. In order to facilitate a seamless
transition from one long term power purchase agreement to the next, SFWPA
respectfully requests that the Commission act on this application no later than
sixty (60) days from the date of this filing.
//
//
8
V. CONCLUSION
WHEREFORE, SFWPA requests the Commission approve the
Agreement pursuant to Section 22 of the FPA.
Dated: September 2, 2021. MINASIAN, MEITH, SOARES,
SEXTON & COOPER, LLP
By s/Andrew J. McClure
ANDREW J. McCLURE
9
ATTACHMENT A
POWER PURCHASE AGREEMENT BETWEEN SOUTH FEATHER WATER AND POWER AGENCY AND
NORTHER CALIFORNIA POWER AGENCY
POWER PURCHASE AGREEMENT
BETWEEN
SOUTH FEATHER WATER AND POWER AGENCY
AND
NORTHERN CALIFORNIA POWER AGENCY
Dated as of \[____________\], 20\[__\]
Table of Contents
ARTICLEI DEFINITIONS AND INTERPRETATION ........................................................ 3
Section 1.1 Definitions............................................................................................ 3
Section 1.2 Interpretation ...................................................................................... 15
ARTICLEII EFFECTIVE DATE, TERM, AND EARLY TERMINATION ..................... 16
Section 2.1 Effective Date .................................................................................... 16
Section 2.2 Term ................................................................................................... 16
Section 2.3 Survivability ....................................................................................... 17
Section 2.4 Early Termination .............................................................................. 17
ARTICLEIII 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
Section 3.5 Outages .............................................................................................. 18
ARTICLEIVCOMPLIANCE DURING OPERATIONS .................................................... 20
Section 4.1 Buyers’ Rights to Monitor in General ............................................... 20
Section 4.2 Effect of Review by Buyer ................................................................ 20
Section 4.3 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
Section 6.1 Delivery.............................................................................................. 21
Section 6.2 Scheduling Coordinator; CAISO Cost Allocation ............................. 22
Section 6.3 Interconnection Facilities ................................................................... 22
Section 6.4 Forecasting ......................................................................................... 22
Section 6.5 Curtailment ........................................................................................ 24
Section 6.6 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 -
ARTICLEVII 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
Section 7.4 WREGIS ............................................................................................ 27
Section 7.5 Further Assurances............................................................................. 27
ARTICLEVIII 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
ARTICLEIXBILLING; 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
Section 9.7 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
ARTICLEXIDEFAULT; TERMINATION AND REMEDIES; PERFORMANCE
DAMAGE ..................................................................................................... 35
Section 11.1 Default................................................................................................ 35
Section 11.2 Default Remedy ................................................................................. 36
Section 11.3 Termination for Default ..................................................................... 37
ARTICLE XII MISCELLANEOUS ........................................................................................ 39
Section 12.1 Authorized Representative ................................................................. 39
Section 12.2 Notices ............................................................................................... 39
Section 12.3 Dispute Resolution ............................................................................. 40
Section 12.4 Further Assurances; Change in Electric Market Design .................... 40
Section 12.5 No Dedication of Facilities ................................................................ 40
Section 12.6 Force Majeure .................................................................................... 41
- ii -
Section 12.7 Assignment of Agreement ................................................................. 42
Section 12.8 Ambiguity .......................................................................................... 42
Section 12.9 Attorneys’ Fees & Costs .................................................................... 43
Section 12.10 Voluntary Execution .......................................................................... 43
Section 12.11 Entire Agreement; Amendments........................................................ 43
Section 12.12 Governing Law .................................................................................. 43
Section 12.13 Venue ................................................................................................. 43
Section 12.14 Execution in Counterparts.................................................................. 43
Section 12.15 Effect of Section Headings ................................................................ 43
Section 12.16 Waiver; Available Remedies ............................................................. 44
Section 12.17 Relationship of the Parties ................................................................. 44
Section 12.18 Third Party Beneficiaries ................................................................... 44
Section 12.19 Indemnification; Damage or Destruction; Insurance;
Condemnation; Limit of Liability ...................................................... 44
Section 12.20 Severability ........................................................................................ 46
Section 12.21 Confidentiality ................................................................................... 46
Section 12.22 Mobile-Sierra ..................................................................................... 47
- iii -
Appendices
APPENDIX ACONTRACT 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, anirrigation 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 a FERC license (FERC Project No. 2088): 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 Seller’s license for the South Feather Power Project was issued for a
period ending March 31, 2009; on March 26, 2007, Seller filed an Application for a New License
pursuant to the Federal Power Act and FERC’s regulations thereunder; and Seller currently
operates the South Feather Power Project under an annual license issued from year-to-year under
the terms and conditions of the prior license until a new license is issued, or the project is otherwise
disposed of as provided in the Federal Power Act; 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
- 1 -
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
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.
- 4 -
“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 hascertified 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
B.
“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 Dateand 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 (21st)
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(f)(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).
- 6 -
“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.
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“EPS Compliance” or “EPS Compliant” when used with respect to theFacility, 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 inthe 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 bya significant segment of the
accounting profession, in each case as the same are applicable to the circumstances as of the date
of determination.
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“Gains” has the meaning set forth in Section 11.3(f)(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 theamount 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.
“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” meansDecember 19, 2021 andis the first day of the Delivery
Term.
“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.
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“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 11.3(a).
“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.
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“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(a).
“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).
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“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 1 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”;
(j) 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.
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(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 MAINTENANCEOF 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.
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(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 thefirst day of the Delivery Period, and for each calendar year thereafter, no later than
four (4) months prior to the deadlinefor 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 (55) 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 Blockout. 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.
ARTICLEIV
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 EnvironmentalAttributes 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 orother 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 6.6No 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 thatduring 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 Datethat (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.
ARTICLEVII
ENVIRONMENTAL ATTRIBUTES
Section 7.1Transfer 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
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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.
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(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.
ARTICLEIX
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 Buyerpursuant 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 invoicefor 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 9.3Disputed 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 testingreasonably
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 measurementmade
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 DeliveryTerm.
(a)Selleris 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 under the Irrigation District Act (Division 11 of the California Water Code) of the State
of California 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) Seller owns or has contractual right to all of the water rights necessary to
operate the Facility in accordance with the Agreement.
(d) Seller has filed an Application for a New License for the South Feather
Power Project pursuant to the Federal Power Act and FERC’s regulations thereunder; and Seller
had filed an application with FERC for approval of this Agreement pursuant to Section 22 of the
Federal Power Act, 16 U.S.C. § 815.
(e) Except for Seller’s need to obtain the regulatory approval addressed in
Section 11.1(h), 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.
(f) 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.
(g) The Parties note Seller’s pending application for regulatory approval
addressed in Section 11.1(h). Assuming receipt of that approval, 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
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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.
(h) Other than Seller’s pending application for regulatory approval addressed
in Section 11.1(h), 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.
(i) North Yuba Water District vs. South Feather Water and Power Agency,
Superior Court of the State of California, County of Butte, Case No. 21CV01563 and any related
cases does not affect the legality, validity or enforceability of this Agreement.
(j) Assuming receipt of the regulatory approval described in Section 11.1(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.
(k) Assuming receipt of the regulatory approval addressed in Section 11.1(h),
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.
(l) Seller has not assigned, transferred, conveyed, encumbered, sold or
otherwise disposed of the Products except as provided herein.
(m) The Facility is located in the State of California.
(n) 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.
ARTICLEXI
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).
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(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
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).
(h) Adverse Regulatory Determination Default. The Parties recognize that
Seller requires regulatory approval from FERC to sell and deliver power from the South Feather
Power Project for periods extending beyond the date of termination of Seller’s annual license for
the Project. The Parties also recognize that the ten-year term for this Agreement is necessary for
Buyer to receive the full benefit of this Agreement. Accordingly, Seller must receive by March 31,
2022, either (1) a new FERC license for the South Feather Power Project, or (2) FERC approval
of this Agreement under Section 22 of the Federal Power Act. Seller has applied for both. Failure
to receive one of these approvals by March 31, 2022 shall constitute a Default. The Parties
recognize that they cannot predict the timing in which FERC will act, and that FERC action could
cure the Default. If Seller continues to operate under a new annual license after March 31, 2022,
Seller shall have until December 31, 2022 to cure the Default. Further extensions to the time period
for curing the Default may be agreed by the Parties. In the event that such an Adverse Regulatory
Determination Default is not cured, no Termination Payment shall be due to either Party.
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
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provide services pursuant to its obligations under this Agreement; provided that nothing in this
Section 11.2(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.
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
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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 beavailable 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.
(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;
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(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.
ARTICLEXII
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
- 39 -
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
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
- 40 -
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 12.5No 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
Majeure 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
- 41 -
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 failureby 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.
(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 12.8Ambiguity. 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.
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Section 12.9Attorneys’ 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.
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.
- 43 -
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
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) Indemnificationby 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
- 44 -
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 coverageand coverage limits of the insurance policies
described in Appendix E.
(b) Indemnification by Buyer. Buyer undertakes and agrees to indemnify and
hold harmless Seller, andall 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 coveragelimits 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.
(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
- 45 -
THIRD PARTY CLAIMS, OR OTHER SPECIFIC CHARGES EXPRESSLY PROVIDED FOR
HEREIN, IN NO EVENT SHALL EITHER PARTY ORITSINDEMNITEES, 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 withArticle 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
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
- 46 -
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
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. 1 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
______________________________________
By:
Its:
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
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
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
WOODLEAF POWERHOUSE, SLY CREEK POWERHOUSE, AND FORBESTOWN
POWERHOUSEPOINTS OF INTERCONNECTION
Appendix B
2
KELLY RIDGEPOWERHOUSE POINTS OF INTERCONNECTION
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. ___
DatesMWhs generated
________________ 20__ ___________
________________ 20__ ___________
________________ 20__ ___________
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 andeach 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
1
II. 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:
1. 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 Buyer:
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 Billing to Buyer:
Northern California Power Agency
Attention: Settlements
Telephone: 916-781-3636
Facsimile: 916-781-4255
Email: settlements@ncpa.com; acctspayable@ncpa.com
2.2 If Payment to Buyer:
Northern California Power Agency
Attention: Accounts Payable
Appendix F
1
Telephone: 916-781-4211
Facsimile: 916-781-4255
Email: Acctspayable@ncpa.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
4. 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@ncpa.com
916-786-0124
Facsimile: 916-781-4239
Schedule Coordination: NCPA Schedule Coordinator contacts.
Name Phone Email
NCPA SC 916-781-4237 SC2@ncpa.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 Email
NCPA Dispatch 916-786-3518 Dispatch@ncpa.com
NCPA SC 916-781-4237 SC2@ncpa.com
Facsimile: 916-781-4226
If to Seller:
RESERVED
5. 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@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
From:"FERC eSubscription"
Subject:Request for Delay of Action/Extension of Time submitted in FERC P-77-001,et al. by Pacific Gas and Electric Company,et al.
Date:Wednesday, September 1, 2021 5:45:39 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 9/1/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Pacific Gas and Electric Company
Pacific Gas & Electric Company (as Agent)
Docket(s): P-77-001
P-137-000
P-175-000
P-233-000
P-619-000
P-803-000
P-1121-000
P-1354-000
P-1962-001
P-1988-000
P-2105-000
P-2106-000
P-2107-000
P-2310-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Request for Delay of Action/Extension of Time
Description: Pacific Gas and Electric Company Status Update and Request for Extension of Time under P-77 et. al.
To view the document for this Filing, click here
https://urldefense.com/v3/__https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20210901-
5011__;!!KNMwiTCp4spf!RBGyLelNF_jetHQqyViOjzfR1ycYPkUpkaBKDl05KGBmUZDOhzSyF_5-fGs2He1KaHB121CnISw$
To modify your subscriptions, click here:
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fGs2He1KaHB1eTotQSw$
------------------------------------------------------------------------
Please do not respond to this email.
Online help is available here:
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fGs2He1KaHB1N6XlOYU$
or for phone support, call 866-208-3676.
245 Market Street
tƚǞĻƩ DĻƓĻƩğƷźƚƓ
San Francisco, CA 94105
Mailing Address:
Mail Code N11D
P.O. Box 770000
San Francisco, CA 94177
August 31, 2021
Via Electronic Submittal (E-File)
Frank L. Blackett, P.E., Regional Engineer
Federal Energy Regulatory Commission
Division of Dam Safety and Inspections
San Francisco Regional Office
100 First Street, Suite 2300
San Francisco, CA 94105-3084
Re: Status Update and Request for Extension of Time
Potter Valley Hydroelectric Project, FERC Project No. 77
Mokelumne River Hydroelectric Project, FERC Project No. 137
Balch Hydroelectric Project, FERC Project No. 175
Pit 3, 4, and 5 Hydroelectric Project, FERC Project No. 233
Bucks Creek Hydroelectric Project, FERC Project No. 619
DeSabla-Centerville Hydroelectric Project, FERC Project No. 803
Battle Creek Hydroelectric Project, FERC Project No. 1121
Crane Valley Hydroelectric Project, FERC Project No. 1354
Rock Creek-Cresta Hydroelectric Project, FERC Project No. 1962
Haas-Kings River Hydroelectric Project, FERC Project No. 1988
Upper North Fork Feather River Hydroelectric Project, FERC Project No. 2105
McCloud-Pit Hydroelectric Project, FERC No. 2106
Poe Hydroelectric Project, FERC No. 2107
Drum-Spaulding Hydroelectric Project, FERC Project No. 2310
Dear Frank L. Blackett:
In accordance with ongoing efforts for
continuous improvement in achieving timely responses to filings requested in
this letter presents in Enclosure 1, an update on the status of efforts to address near-
term coming due items. The status of efforts for items not yet resolved includes
Extension of Time (EOT) requests.
Should you have any technical questions concerning this matter, please contact
PG&E chief dam safety engineer, Dave Ritzman, at (415) 264-1795. For general
Frank L. Blackett, P.E., Regional Engineer
August 31, 2021
Page 2
questions, please contact the Manger of FERC Compliance, Teri Smyly, at (415)
624-4218.
Sincerely,
Teri Smyly
Manager, FERC and DSOD Compliance
Enclosure:
1. Status Update and Extension of Time Request
N/AN/AN/AN/AN/AN/AN/AN/A
EOTs
6/30/20217/30/2021
Date(s) of prior
12/24/20, 6/30/2112/24/20, 6/30/21
5/31/20221/31/20225/31/20225/31/20223/31/20223/31/20223/22/20221/31/20224/30/20223/31/2022
11/15/202111/15/202112/31/2021
Extension of Time
Proposed Due Date
PG&E Status
PG&E is working on a construction submittal, request to submit construction package with FERC by May 31, 2022.PG&E still assessing the functionality of Piezometer 1-3.Recommendations
are tied to PG&E's ongoing Spillway Assessment and Improvement Program and will be addressed upon completion of those studies, Plan & Study will be provided to FERC by May 31, 2022.Recommendation
is tied to SSPMP/PMF package that was submitted July 2021 and currently under FERC review.PG&E requests additional time to develop plan and schedule in cooperation with local emergency
management authorities. Wildfires are delaying meetings with county and local EMA's. Meetings will commence after wildfire season ends.PG&E requests additional time to develop plan
and schedule in cooperation with local emergency management authorities. Wildfires are delaying meetings with county and local EMA's. Meetings will commence after wildfire season ends.PG&E
requests an extension due to delay of maintenance work delayed due to COVID and fires.Results of plunge pool erodibility evaluations have been reviewed by and complete IC review of
results. PG&E requests an extension of time to November 15, 2021 to revise the report, review findings with IC, and submit results to FERC.Results of plunge pool erodibility evaluations
have been reviewed by and complete IC review of results. PG&E requests an extension of time to November 15, 2021 to revise the report, review findings with IC, and submit results to
FERC.PG&E requests additional time to perform evaluation.PG&E requests additional time to prepare responses to FERC comments.PG&E requests additional time to prepare responses to FERC
comments.PG&E requests additional time to develop plan and schedule in cooperation with local emergency management authorities. Wildfires are delaying meetings with county and local
EMA's. Meetings will commence after wildfire season ends.
8/5/2021
6/30/20211/29/20211/29/20211/29/20213/25/20216/30/20216/30/20217/30/20214/30/20213/24/2021
12/31/2020
Most Recent
Correspondence
Date
9/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/2021
Current Due
R-4, Assess
Description
Cape Horn Dam
-
2020 7th P12D Inspection - Cape Horn Dam R-2, Install survey monuments2020 7th P12D Inspection Functionality Piezometer 1-32020 7th P12D Inspection Cape Horn Dam R-5, R-8, R-9, R-10,
R-14, R-172020 7th P12D Inspection Cape Horn Dam R7, update hydrological and hydraulic studies.Submit plan and schedule to reduce excess response times for time sensitive dams, and
evaluate early warning technologies.Submit plan and schedule to reduce excess response times for time sensitive dams, and evaluate early warning technologies.2020 10-Year GIR Tiger
Creek Afterbay Da FILE W/ FERC: R-7, R-8, R-14, R-15, R-16, R-17, R-20, R-21, R-22, R-23, R-272019 11th P12D Inspection - Balch AB Dam R-7 Erodibility Study2019 11th P12D Inspection
Balch Div Dam R-7, Plunge Pool Erodibility Study2020 11th PART 12D Inspection-Bucks Storage R-1, Evaluate Drains and Valves on DWG 5192020 11th PART 12D Inspection-Bucks Storage, Response
to 7/7/2021 letterRevised Probable Maximum Flood Estimate , Response to 2/16/2021 PMF letterSubmit plan and schedule to reduce excess response times for time sensitive dams, and evaluate
early warning technologies.
Dam No.
CA00399CA00399CA00399CA00399multiplemultipleCA00401CA00336CA00335CA00332CA00332CA00332CA00334
7777777777
137137175175619619619619
No.
FERC
Project
ENCLOSURE 1: STATUS UPDATE AND EXTENSION OF TIME REQUEST
N/AN/AN/AN/AN/AN/A
EOTs
12/29/20
4/23/20214/23/20214/23/20214/23/20214/23/2021
7/30/2021,
Date(s) of prior
1/31/20221/31/20223/31/20226/30/20222/28/20222/28/2022
11/30/202112/31/202112/31/202112/31/202112/31/202111/15/2021
Extension of Time
Proposed Due Date
PG&E Status
PG&E requests additional time to work with consultant to provide responses to FERC comments.PG&E requests additional time to work with consultant to provide responses to FERC comments.PG&E
requests additional time to develop plan and schedule in cooperation with local emergency management authorities. Wildfires are delaying meetings with county and local EMA's. Meetings
will commence after wildfire season ends.PG&E requests additional time to finalize the plan and schedule to align with PG&E tower seismic retrofit project to begin during 2023. PG&E
requests additional time to prepare response.PG&E requests additional time to perform evaluation.Construction schedule changed due to budget, construction to begin 2023. PG&E request
to filie the construction package 12/31/2021PG&E requests additional time to prepare construction package. PG&E requests additional time to prepare construction package. PG&E requests
additional time to prepare construction package. PG&E requests additional time to perform evaluation.PG&E's deformation studies for Courtright and Wishon Dams were reviewed by the independent
consultant, who has recommended an additional load case to be analyzed. PG&E planned to address the additional load case as an addendum to each study following transmittal to FERC.
After PG&E's internal review and discussion of approach and methodology to model this additional load case, PG&E believes a revision to the deformation studies is necessary to apply
consistent modeling assumptions across all load cases. The revision is currently underway and the IC has reviewed and concurs with PG&E's revised approach. PG&E requests an extension
of time to November 15, 2021 to complete the updated deformation studies, complete IC review, and submit a complete deformation evaluation for each dam to FERC.
2/1/20212/1/2021
8/10/20217/27/20214/14/20214/23/20211/29/20214/23/20214/23/20214/23/20214/23/20217/30/2021
Most Recent
Correspondence
Date
9/24/20219/30/20219/30/20218/31/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20219/15/2021
Current Due
Description
2015 PART 12D Inspection- Round Valley Dam, response to 8/10/2021 letter2015 PART 12D Inspection- Philbrook Saddle Dam, Response to 2/16/2021 PMF letterSubmit plan and schedule to reduce
excess response times for time sensitive dams, and evaluate early warning technologies.Crane Valley IFR FERC Response2020 11th PART 12D Inspection- Cresta Dam R-8, Update Penstock Walkdown
Sheet2020 11th Part 12d Inspection- Rock Creek Dam R12, Confirm Spillway Rating Curve2015 10th Part 12D Inspection- Rock Creek Dam R5, Cracking in Valve House2015 10th PART 12D Inspection-
Cresta Dam R-11, Slope Erosion2015 10th PART 12D Inspection- Cresta Dam R-10, Dive Inspection2015 10th PART 12D Inspection - Cresta Dam, Design Package2020 11th PART 12D Inspection-
Cresta Dam R-14, Confirm Spillway Rating Curve2019 11th P12D Inspection Courtright Dam R-9, Seismic Deformation Study
Dam No.
CA00346CA83035CA00342CA00337CA00329CA00330CA00330CA00329CA00329CA00329CA00329CA00412
803803
No.
1354135419621962196219621962196219621988
FERC
Project
N/AN/AN/AN/AN/AN/AN/A
EOTs
12/29/20
2/26/2021
7/30/2021,
12/29/2020
Date(s) of prior
9/30/20229/30/20226/30/20224/30/2024
11/15/202111/30/202111/30/202112/31/202111/15/202211/30/2021
Extension of Time
Proposed Due Date
PG&E Status
additional time to perform evaluation.
PG&E's deformation studies for Courtright and Wishon Dams were reviewed by the independent consultant, who has recommended an additional load case to be analyzed. PG&E planned to address
the additional load case as an addendum to each study following transmittal to FERC. After PG&E's internal review and discussion of approach and methodology to model this additional
load case, PG&E believes a revision to the deformation studies is necessary to apply consistent modeling assumptions across all load cases. The revision is currently underway and the
IC has reviewed and concurs with PG&E's revised approach. PG&E requests an extension of time to November 15, 2021 to complete the updated deformation studies, complete IC review, and
submit a complete deformation evaluation for each dam to FERC.Results of hydraulic analyses are under review by PG&E. Efforts to address this recommendation also concurrently address
recommendations from the spillway assessment report (R-3 and R-4) which are due November 30, 2021. PG&E requests an extension of time to November 30, 2021 to complete the hydraulic
analyses to align with SAIP item due dates also addressed by this study.PG&E requests additional time to perform evaluationUnder internal and IC reviewPG&E requests additional time
to set up drone inspection of Big Bend Dam.PG&E requests additional time to update the STID with details of spillway identified in while adressing recommendation 1 from the 2018 P12.
PG&E plans to update the STID by November 15, 2022.PG&E has completed a draft hyrdraulic analysis and requests additional time to perform additional modeling scanarios.Based on results
of a hydraulic analysis performed to address recommendation 6 of the 2013 P12D safety inspection, PG&E plans to update the STID with standard operating procedures to keep the spillway
clear of vegetation and other debris that could impact the spillway channel performance. PG&E requests additional time to update the STID with the next routine update, by April 30,
2024.PG&E requests additional time for internal and Independent Consultant review.
2/3/2021
7/30/20214/29/20216/15/20212/26/20218/27/20209/30/20204/29/2021
12/29/202012/29/2020
Most Recent
Correspondence
Date
9/15/20219/30/20219/30/20219/30/20219/30/20219/30/20219/30/20217/31/20219/30/2021
8/31/2021
Current Due
Description
2019 11th P12D Inspection - Wishon Dam R-12, Seismic Deformation Study2019 11th P12D Inspection - Courtright Dam R-1, Survey Overtopping Spillway Study2020 11th P12D Inspection - Belden
Forebay Dam R-42, Update radial gate analysis2020 10-Year GIR Belden Forebay Dam R-12017 Iron Canyon Spillway Assessment , Schedule PMF for spillway2019 Annual Dam Safety Inspection,
Drone Inspection of Big Bend Dam2018 11th P12D Inspection- Wise Forebay - R1 STID UpdateFordyce 2018 PART 12D R1: PMF Hydraulic spillway routing analyis and training wall overtoppingMeadow
Lake R6- STID Update2017 Pit #1 Forebay Spillway Assessment , Plan & Schedule fo PMF Design Criteria
Dam No.
CA00411CA00412CA00413CA00413CA00417N/ACA83198CA00357CA00381CA00405
No.
1988198821052105210621072310231023102687
FERC
Project
N/AN/AN/AN/A
EOTs
Date(s) of prior
3/31/20223/31/20223/31/2022
10/31/2021
Extension of Time
Proposed Due Date
PG&E Status
In response to Recommendations 5 and 8 from the 2017 focused spillway assessment, PG&E identified the need to update the STID. PG&E requests additional time to update the STID with the
next routine update, which is currently planned for October 31, 2021.PG&E requests additional time to develop plan and schedule in cooperation with local emergency management authorities.
Wildfires are delaying meetings with county and local EMA's. Meetings will commence after wildfire season ends.PG&E requests additional time to develop plan and schedule in cooperation
with local emergency management authorities. Wildfires are delaying meetings with county and local EMA's. Meetings will commence after wildfire season ends.PG&E requests additional
time to develop plan and schedule in cooperation with local emergency management authorities. Wildfires are delaying meetings with county and local EMA's. Meetings will commence after
wildfire season ends.
5/28/20213/24/20213/25/20213/25/2021
Most Recent
Correspondence
Date
9/30/20219/30/20219/30/20219/30/2021
Current Due
Watershed
time time
r r
fofo
Shasta Drum-
es es
timtim
se se
2310
,
respontechnologies. respontechnologies. response times for time
2310
s s s
excesexcesexces
2155,
e e e
Description
Nos.
early warning early warning
reducreduc
2106
75, 1988
o o
tt
FERC
le le
1121,
evaluate , evaluate
scheduschedu
and and
d d
233
anan
n n
Watershed Re:
Nos.
dams, dams,
plapla
it it
FERC
Halsey Afterbay 2017 Focused Spillway Assessment- STID updateSubmsensitive Re: Submsensitive Spaulding Submit plan and schedule to reducsensitive dams, and evaluate early warning technologies.
Haas-Kings Watershed Re: FERC Nos.
Dam No.
CA00348MultipleMultipleMultiple
No.
2310
FERC
Project
MultipleMultipleMultiple
From:"FERC eSubscription"
Subject:Supplemental/Additional Information submitted in FERC P-2088-000 by Individual No Affiliation,et al.
Date:Friday, August 27, 2021 1:15:40 PM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments,
clicking on links, or replying..
On 8/27/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Individual No Affiliation
South Feather Water & Power Agency (as Agent)
Docket(s): P-2088-000
Lead Applicant: South Feather Water and Power Agency
Filing Type: Supplemental/Additional Information
Description: Response to June 8, 2021 correspondence requesting South Feather Water & Power Agency Submit additional
information for current relicense effort under P-2088.
To view the document for this Filing, click here
https://urldefense.com/v3/__https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20210827-
5166__;!!KNMwiTCp4spf!RV1aHVWeVrLzBwggD3Yu-08iYil5eDp1aZwDyqsALtbZp-
a6wPOXd0VDtNKQyC_pzsnbR54vGf0$
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From:"FERC eSubscription"
Subject:Supplemental/Additional Information submitted in FERC P-2088-000 by Individual No Affiliation,et al.
Date:Friday, August 27, 2021 10:26:27 AM
.ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying..
On 8/27/2021, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Individual No Affiliation
South Feather Water & Power Agency (as Agent)
Docket(s): P-2088-000
Lead Applicant: South Feather Water and Power Agency
Filing Type: Supplemental/Additional Information
Description: South Feather Water and Power Agency submits letter in response to the June 8, 2021 request for additional information relative to the
current relicensing of the South Feather Power Project under P-2088.
To view the document for this Filing, click here
https://urldefense.com/v3/__https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20210827-
5101__;!!KNMwiTCp4spf!VzD2CyffD7Wo0uLT0eWQVYGB6_ICDPHeVafPAQmST-lsYnHsqZVdJ6hJS0cSR1SqFv4QfKPWm5w$
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lsYnHsqZVdJ6hJS0cSR1SqFv4Qmim0Ve8$
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lsYnHsqZVdJ6hJS0cSR1SqFv4QOQOC3yk$
or for phone support, call 866-208-3676.