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AMENDMENT NO. 2 TO POWER PURCHASE AGREEMENT BETWEEN ALAMEDA
MUNICIPAL POWER, A DEPARTMENT OF THE CITY OF ALAMEDA, AND
AMERESCO KELLER CANYON LLC
This Amendment No. 2 to the Power Purchase Agreement dated as of August 8, 2005, as amended by Amendment No. 1 dated as of March 17, 2008 (the “Contract”), is entered into this _____ of ____________, 2022 (“Effective Date”), between Alameda Municipal Power, a department of the City of Alameda, a Charter City and Municipal Corporation of the State of California (“Buyer”) and Ameresco Keller Canyon LLC, a Delaware Limited Liability Company, located at Framingham MA (“Seller”) (individually a “Party”, and together with Buyer, the “Parties”).
WHEREAS, the Parties entered into the Contract for the provision of electricity and environmental attributes from a landfill gas to energy project; and WHEREAS, Ameresco Keller Canyon RNG LLC (“Ameresco”), an affiliate of Seller, intends to design, build, own, and operate gas processing facilities located on or adjacent to the Site that will process landfill gas for sale to third parties (the “RNG Plant”); WHEREAS, Ameresco desires to use all or a portion of the Output to power the RNG Plant which is anticipated to be online in the first quarter of 2023, and Buyer is willing, subject to the terms and conditions of this Amendment No. 2 (i) to allow Seller to sell all or a portion of the Output to Ameresco or its affiliate to power the RNG Plant and (ii) to continue to purchase any remaining Output in accordance with the Contract; and WHEREAS, the Parties desire to amend the Contract accordingly.
NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment No. 2, the Parties mutually agree as follows:
1. Capitalized terms used in this Amendment No. 2 and not defined herein have the meanings assigned to them in the Contract. The Recitals are incorporated into this Amendment No. 2.
2. Purchase and Sale of Output.
a. Notwithstanding any provisions to the contrary in the Contract, from the date of mechanical completion of the RNG Plant and during the remainder of the Term, Seller shall have the right to use up to 100% of the Output to power the RNG Plant.
February14th
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b. Seller shall provide Buyer 30-days written notice of the anticipated date of mechanical completion of the RNG Plant (the “RNG MC Date”). c. In the event that Ameresco does not use 100% of the Output to power the RNG Plant, any remaining Output shall be delivered to the Point of Interconnection and Buyer shall purchase, accept and pay for its Percentage Share of the Output delivered to the Point of Interconnection.
d. For the purposes of this Amendment No. 2 and Section 2.2 of the Contract, Buyer’s “Percentage Share of the Output” shall mean the Buyer’s Percentage Share of the Output delivered to the Point of Interconnection and Buyer’s “Percentage Share of the Environmental Attributes” shall mean Buyer’s Percentage Share of the Environmental Attributes related to the Energy delivered to the Point of Interconnection.
e. Seller’s use of Output to power the RNG Plant shall not impact the calculation of the Availability Threshold or be deemed an Outage.
f. Seller’s sale or transfer of Output to power the RNG Plant shall not be an Event of Default under Section 7.2(d).
3. Administrative Fee. In consideration of the costs and expenses associated with the review, evaluation, negotiation, execution and/or delivery of any and all documents, consents, amendments, modifications or restatements related to the amendment and administrative costs associated with the implementation of changes as set forth in this Amendment No. 2, beginning on the RNG MC Date, Seller shall pay Buyer $250,000/year for each year (prorated for partial years) remaining in the Term (the “Administrative Fee”), with the first annual Administrative Fee due within 30 business days of the RNG MC Date, and by that date every year thereafter for the remainder of the Term.
4. RA Capacity. The Parties acknowledge that due to the proposed changes set forth in this Amendment No. 2, Seller may no longer provide Buyer with capacity contributions towards Buyer’s resource adequacy requirements (“RA Capacity”) to the extent that the Output will be diverted to the RNG Plant. Beginning on the RNG MC Date, Seller shall compensate Buyer for the loss of this RA Capacity during the Term in an amount equal to Buyer’s share of the monthly Net Qualifying Capacity (“NQC”) amounts for the landfill gas electric facility for calendar year 2021 multiplied by the Local RA Capacity price approved by the NCPA Commission for the NCPA Capacity Pool for each month of the Term (the “RA Capacity Compensation”). Seller shall pay the RA Capacity Compensation to Buyer within 30 business days after the NCPA Commission approves the NCPA Capacity Pool price for Local RA Capacity each year for the duration of the Term or in the event that the NCPA Commission does not approve a Local RA Capacity price in any given year, the RA Capacity Compensation for that year shall be equivalent {D0462824.DOCX / 1}3
to the Capacity Procurement Mechanism (CPM) Soft Offer Cap, as that term is defined at Section 43A of the CAISO Tariff.; provided that in no event shall the RA Capacity Compensation exceed $135,000/year.
5. Scheduling. Section 3 (“Daily modifications to forecasts”) of Appendix D (“Scheduling Protocols”) of the Contract states “Unless otherwise mutually agreed, Seller may make changes to the Weekly forecast by providing such changes to NCPA prior to 08:00am Pacific Time two (2) workdays before the active scheduling day.” Through this Amendment No. 2, the Parties mutually agree to amend Section 3 of Appendix D to state that “Seller may make changes to the Weekly forecast by providing such changes to NCPA prior to 06:00am Pacific Time one (1) workday before the active scheduling day.” In addition, for the first 18 months after the RNG MC Date, to the extent that the actual Output of the Plant delivered to the Point of Interconnection deviates from the forecasted amount provided to NCPA pursuant to the Appendix D Scheduling Protocols, and as a result Buyer or NCPA incur any CAISO charges associated with FMM Instructed Imbalance Energy (FMM IIE), RTD Instructed Imbalance Energy (RTD IIE), Uninstructed Imbalance Energy (UIE) or Penalties for Uninstructed Imbalance Energy (as those capitalized terms are defined in the CAISO Tariff and at Section 11.5.1, Section
11.5.2 and Section 11.23 of the CAISO Tariff, respectively, as may be amended from time to time), Seller shall compensate Buyer in an amount equivalent to the settlement of such charges for FMM IIE, RTD IIE, UIE and Penalties for Uninstructed Imbalance Energy. Such compensation to Buyer for FMM IIE, RTD IIE, UIE charges and Penalties for Uninstructed Imbalance Energy assessed against Buyer or NCPA for Seller’s deviation from the forecasted amounts shall be subject to a maximum (cap) of $50,000.
6. Entire Agreement; Governing Law. This Amendment No. 2 shall be governed by the laws of the State of California.
7. Authority. Each Party represents and warrants to the other Party that it has the power, right and authority to enter into this Amendment No. 2 and to consummate the transactions contemplated hereby.
8. The Parties may execute this Amendment No. 2 in counterparts, which shall, in the aggregate, when signed by both Parties constitute one and the same instrument; and, thereafter, each counterpart shall be deemed an original instrument as against any Party who has signed it. Delivery of an executed counterpart of this Amendment No. 2 by facsimile transmission or by other electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment No. 2.
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9. Except as modified and amended in this Amendment No. 2, the Contract remains in full force and effect, and the Parties hereby ratify and re-affirm the Contract in all respects. [signatures follow]
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IN WITNESS WHEREOF, the Seller and Buyer have executed this Amendment No. 2 as of the Effective Date.
AMERESCO KELLER CANYON LLC
a Delaware Limited Liability Company
By: _
Michael T. Bakas
Executive Vice President
ALAMEDA MUNICIPAL POWER,
a Department of the City of Alameda,
a Municipal Corporation
Nicolas Procos
General Manager
RECOMMENDED FOR APPROVAL
_______________________________________
Chris Ferrara
Acting AGM – Energy Resources Planning
APPROVED AS TO FORM:
City Attorney
_______________________________________
Alan M. Cohen
Assistant City Attorney
By: Ameresco LFG Holdings III LLC, its sole member
By: Ameresco, Inc., its sole member