AGREEMENT BETWEEN
Powerex Corp. * and City of Burbank
Powerex Deal No. IJL877
This document (“Confirmation”) confirms the agreement reached between Powerex Corp.* (“ Powerex” or “Seller ”) and City of Burbank (“Burbank” or “Purchaser ”) regarding the sale and purchase of the Product in accordance with the WSPP, Inc. Agreement in effect on the Reference Date (the “WSPP Agreement”) and Service Schedule R thereto, as amended and supplemented by this Confirmation under the following terms and conditions. Consistent with Section 35 of the WSPP Agreement, this transaction and Confirmation, together with all other transactions and Confirmations (as defined under the WSPP Agreement) between the Parties and the WSPP Agreement, form a single integrated agreement and are not separate contracts.
Seller: Powerex
Purchaser: Burbank
Transaction: This Transaction is for Purchaser to procure B undled Renewable Energy, all in accordance with the terms and conditions of this Confirmation.
Vintage
(Generation Term): For the purposes of this Confirmation and the B undled Renewable Energy to be procured pursuant hereto, the generation term for Bundled Renewable Energy is October 1, 2022, to September 30, 2032, inclusive (“Generation Term”).
Product: “Bundled Renewable Energy ”, which is comprised of energy generated by the Project(s) and the associated Green Attributes.
Bundled Renewable Energy will be considered a Firm Bundled REC product for the purposes of Service Schedule R, as amended hereby.
Environmental
Attributes: All Attributes.
Applicable Program: RPS, as defined herein.
Delivery: The Parties recognize that a schedule of energy to the CAISO Balancing Authority is a delivery to the CAISO and not directly to Purchaser. Scheduling Energy to the CAISO Balanc ing Authority shall constitute D elivery of Bundled Renewable Energy to Purchaser , provided the WREGIS Certificates evidencing the Green Attributes comprised in the Bundled Renewable Energy are Delivered to Purchaser as provided in this Confirmation.
Energy
Purchaser elects to take D elivery of the energy by either Delivery Method 1 (Category 1 Product) or Delivery Method 2 (Category 2 Product), or both, as specified under the “Contract Quantity” section. The Parties intend that the Product as procured by Purchaser and as Delivered by Seller in accordance with (i) Delivery Method 1 will meet the Category 1 Product Eligibility Requirements and (ii) Delivery Method 2 will meet the Category 2 Product Eligibility Requirements.
ATTACHMENT 1
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2 Green Attributes
Green Attributes to be D elivered to Purchaser hereunder shall be represented by WREGIS Certificates. The transfer of WREGIS Ce rtificates through WREGIS shall be deemed to transfer title to all of the Green Attributes associated with the Product.
Due to WREGIS Timelines, completion of Delivery of the Green Attributes may occur after the Generation Term or Generation Sub -term, as applicable, however such delay shall not constitute a failure to Deliver the WREGIS Certificates by Seller. Seller will match WREGIS Certificates with e -Tags prior to transferring WREGIS Certificates to Purchaser (unless there are no e-Tags associated with the Energy Delivery).
Transfer Date: As per Section R-3.2.1 of Service Schedule R.
Contract Quantity: During the Generation Term, Purchaser shall procure 220,000 MWh of Bundled Renewable Energy from Seller (“Contract Quantity ”) to be Delivered by Seller in accordance with the Delivery Method Election elected by Purchaser in the table below:
Delivery Method Election
Quantity
(MWh)
Delivery Method / Category Product
220,000 “Delivery Method 1” – (Category 1 Product) – Energy directly Delivered from the Project on an hourly, sub -hourly or real-time basis to the Delivery Point without substituting electricity from another source (“Project Energy”).
0 “Delivery Method 2” – (Category 2 Product) – Energy
generated by a source other than the Project, Delivered to the Delivery Point in substitution for, and in an amount matching the amount of, Project Energy (“Incremental Energy”).
If both boxes are checked, Purchaser is deemed to have selected a combination of Delivery Method 1 and Delivery Method 2 as detailed above.
Energy Delivery Profile
The Energy shall be D elivered by Seller in compliance with the applicable minimum and maximum amounts for each Generation Sub-term as set forth in the table below. For greater certainty, Seller’s Delivery obligations shall be based on Delivery of the minimum amounts specified for each Generation Sub -term and Delivery of the Contract Quantity for the Generation Term. Any failure to Deliver (and damages for such failure, if any) shall be determined on a Generation Sub - term basis and such quantity will be treated as Delivered for the purposes of the Contract Quantity for the Generation Term unless it has been determined t hat Seller owes Purchaser damages for such failure to Deliver pursuant to Sections 21 and R-9.1.2(a) of the WSPP Agreement, as modified by this Confirmation, and Seller has not paid such damages within the time provided in the WSPP Agreement, subject at all times to Seller’s right to dispute any such determination in accordance with the WSPP Agreement.
ATTACHMENT 1
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3 Generation Sub-term Category 1 Product
(MWh)
Category 2 Product
(MWh)
Minimum Maximum Minimum Maximum
October 1, 2022, -
December 31, 2022
20,000 20,000 - -
January 1, 2023 , -
December 31, 2023
20,000 20,000 - -
January 1, 2024 , -
December 31, 2024
20,000 20,000 - -
January 1, 2025 , -
December 31, 2025
20,000 20,000 - -
January 1, 2026 , -
December 31, 2026
20,000 20,000 - -
January 1, 2027 , -
December 31, 2027
20,000 20,000 - -
January 1, 2028 , -
December 31, 2028
20,000 20,000 - -
January 1, 2029 , -
December 31, 2029
20,000 20,000 - -
January 1, 2030, -
December 31, 2030
20,000 20,000 - -
January 1, 2031, -
December 31, 2031
20,000 20,000 - -
January 1, 2032, -
September 30, 2032
20,000 20,000 - -
Seller may schedule or cause to be scheduled the Energy during any or all hours in the Generation Term.
Contract Price: In this Confirmation,
“CAISO Credit” means the Energy Price paid by the CAISO for the Energy. “Category 1 GA Price”: means $16.85/MWh for each MWh of the Cate gory 1 Product Delivered hereunder
“Category 2 GA Price”: N/A.
“Energy Price ” means , for each MWh of Energy Delivered, the applicable Locational Marginal P rice, as defined in the CAISO Tariff and published by CAISO, at the CAISO Point where CAISO models the physical injection of such Energy.
“GA Price” means th e Category 1 GA Price or the Category 2 GA Price, as applicable.
For each MWh of Category 1 Product or Category 2 Product D elivered to Purchaser, the Contract Price shall consist of the sum of the Energy Price and the applicable GA Price, less the CAISO Credit, calculated as follows:
Contract Price = (Energy Price + applicable GA Price) - CAISO Credit Facilities: Bundled Renewable Energy procured under this Confirmation will be generated by one or m ore of the facilities listed in Schedule “A”. For the purposes of ATTACHMENT 1
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4 Delivering Category 1 Product, Seller may add additional facilities from time to time by provi ding Purchaser with an updated Schedule “A” (with additional facilities listed in Part B) which shall replace the existing Schedule “A” to this Confirmation.
Delivery Point: Seller may Deliver Energy to any CAISO Point. For greater certainty, inthe event an e-Tag includes more than one CAISO Point, the Delivery Point shall be the last point of delivery (POD) or “sink” CAISO Point on such e-Tag.
Scheduling and
Tagging: Scheduling
Seller shall schedule or cause to be scheduled, at its sole discretion, Energy to the CAISO Balancing Authority on a day-ahead, hour-ahead, sub-hourly and/or real- time basis.
All Energy shall be scheduled in accordance with Generally Accepted Utility Practice.
E-tagging
Seller shall generate all e -Tags required to schedule the Energy to the Delivery Point and such e -Tags will be in accordance with generally accepted e -tagging practices and standards in the WECC region. For greater certainty, no e-Tags will be generated for Deliveries from a facility within the CAISO Balancing Authority.
Each e-Tag will include the following, depending on the Category Product:
E-Tag Location Category 1 Product Category 2 Product
Last CA (Control Area)
under ‘Physical Path’
CAISO Balancing
Authority
CAISO Balancing
Authority
First ‘POR/ POD’
under ‘Physical Path’
A single Project N/A
Last or ‘sink’ PSE
(Purchasing Selling
Entity) under ‘Physical
Path’
BURBT4 -
Misc(Token/Value)
field
RPS ID for that Project One or more, up to a
maximum of ten, of the
RPS ID numbers for
facilities listed in Schedule
“A”.
Comment field City of Burbank -
ATTACHMENT 1
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5 If a “ sink” PSE is not specified above by Purchaser, Seller may, and Purchaser authorizes Seller to, use a sink PSE (including its own) consistent with generally accepted e-tagging practices and standards in the WECC region (including CAISO deliveries).
Tracking System: WREGIS.
For Category 1 Product, WREGIS Certificates will be transferred to Purchaser following applicable WREGIS Timelines. For Category 2 Product, WREGIS Certificates will be transferred to Purchaser following the later of (i) applicable WREGIS Timelines and (ii) the month after Delivery of associated Incremental Energy. WREGIS Certificates will be transferred to the WREGIS account named City of Burbank, Burbank Water and Power (Account ID 1274).
In the event WREGIS changes the WREGIS Operat ing Rules in effect on the Reference Date (or its application thereof) such that WREGIS Certificates cannot be transferred to Purchaser as required under this Confirmation, the Parties will negotiate in good faith using commercially reasonable efforts to revise or amend this Confirmation to the extent possible to enable the transfer of WREGIS Certificates to Purchaser.
Invoicing and Payment:
For the purposes of this Transaction, invoicing and payment for Energy and Green Attributes D elivered to Purchaser shall be in accordance with Section 9 of the WSPP Agreement. The Energy invoice will show $0.00 owing for the Energy as a result of the CAISO Credit fully offsetting the Energy Price. The Parties acknowledge that invoicing and payments for the Energy may not occur in the same month as invoic ing and payments for the Green Attributes associated with such Energy due to the Delivery of the Green Attributes following WREGIS Timelines. Delivery of Green Attributes in WREGIS to Purchaser must precede invoicing for such Green Attributes and the invo ice will be for Green Attributes Delivered on WREGIS during the calendar month preceding the invoice. Seller shall be entitled to retain for its account all revenues received from the CAISO associated with the delivery of Energy to the CAISO Balancing Authority.
Purchaser agrees to pay Seller’s invoice prepared in accordance with this Confirmation within the time provided in the WSPP Agreement.
Seller’s invoices may be delivered by email from Seller to Purchaser.
Change in Law: Regulatorily Continuing, provided that Seller’s obligations to make reasonable efforts or commercially reasonable efforts to obtain compliance with a Change in Law (or “change in law” ) shall not require Seller to incur any costs and expenses related thereto or suffer any losses in connection therewith, whether direct or indirect, in excess of the limits set forth in Section 9 of the Special Conditions .
Subject to the above noted agreed maximum amount, provided that Seller is making reasonable efforts or commercially reasonable efforts, as applicable, to obtain compliance with any Change in Law (or change in law), any non - compliance shall not be an Event of Defaultand, to the extent such Change in Law (or change in law) results in a Failing Category Product hereunder, Section 2 of the Special Conditions shall apply and be the exclusive remedy of the Parties(and all other damages or remedies are waived).
ATTACHMENT 1
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6 SPECIAL CONDITIONS
1. Additional Definitions and Modifications. The defined terms set forth in Schedule “B” and the amendments and modifications to the WSPP Agreement and Service Schedule R set forth in Schedule “C” shall apply to this Confirmation.
2. Qualifying Event. If, at any time, there is a Qualifying Event, the following shall apply:
(a) the Qualifying Event shall not constitute an Event of Default for the purposes of the WSPP Agreement,
(b) promptly following notice of a Qualifying Event from one Party to the other Party, the Parties will negotiate in good faith using commercially reasonable efforts to revise or amend this Confirmation as appropriate to address the Qualifying Event and restore as best as is possible the position of the Parties prior to the Qualifying Event, and (c) if the Parties are unsuccessful in revising or amending the Confirmation as provided in (b) above, and
(i) at such time a Category Product to be Delivered hereunder does not meet the applicable Eligibility Requirements for any reason other than a Purchaser Eligibility Failure, a Seller Eligibility Failure or Uncontrollable Force (“Failing Category Product”), or
(ii) a Party is or reasonably expects to be materially adversely impacted by the Qualifying Event, including as to the ability of either Party to perform its respective obligations under this Confirmation or Seller to receive the CAISO Credit from CAISO
then either Party, in the case of (i), or the materially adversely impacted Party, in the case of (ii), may, by written notice to the other Party, immediately terminate the Transaction and this Confirmation, without penalty, termination payment or liability of either Party to the other for Category Product that is not then D elivered (provided, for greater certainty, that Purchaser shall remain liable for any Green Attributes associated with Energy already Delivered to Purchaser).
3. Failure to Deliver/Accept. Notwithstanding the Contract Price being expressed as the sum of the Energy Price (less CAISO Credit) and the applicable GA Price, the calculation of damages for failure to Deliver or Accept the Product (or any component thereo f) shall be calculated in accordance with Section R -9.1.2(a), subject to the modifications set forth herein . For greater certainty: (i) any quantity of Category Product that does not meet or satisfy the applicable Eligibility Requirements as a result of a Seller Eligibility Failure shall be considered a failure to D eliver by Seller, and (ii) Seller shall not be liable to Purchaser for any quantity of Category Product that does not meet or satisfy the applicable Eligibility Require ments as a result of a Purchaser Eligibility Failure. If WREGIS Certificate(s) are not transferred as required by this Confirmation solely as a result of an error or omission of WREGIS, it shall not be a failure to Deliver or Accept, however the Parties shall use commercially reasonable effort and cooperate in good faith to cause WREGIS to correct its error or omission to complete such transfer.
4. Non-Binding Forecasts/Waived Shortfalls
(a) Non-Binding Forecasts. Prior to the beginning of each Generation Sub -term, Seller will provide Purchaser with a non- binding forecast of monthly Deliveries of applicable Category Product for the upcoming Generation Sub -term, and Seller will update such forecast following each of the first three calendar quarters within such Generation Sub - ATTACHMENT 1
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7 term to reflect, among other things, estimated Deliveries to date and any changes to operating or market conditions. Seller does not represent or warranty as to the accuracy of any forecasts, and Purchaser acknowledges that each forecast and update thereto is non - binding, for information purposes only and does not fetter any discretion Seller otherwise has hereunder to schedule and Deliver the applicable Category Product . In the event Seller fails to provide a forecast or updated forecast as provided herein, Purchaser may request Seller provide such forecast or updated forecast however any such failureshall not be an Event of Default.
(b) Shortfall – Category 2 Product (Alternate Supply) . In the event Seller reasonably anticipates that it will be unable to Deliver the required quantity of Category 2 Product with respect to any Generation Sub- term, Seller may provide written notice to Purchaser on or before sixty (60) days prior to the end of the applicable Generation Sub -term (“Shortfall Notice ”). If Seller provides a Shortfall Notice , upon Purchaser ’s receipt thereof the Parties will negotiate in good faith using commercially reasonable efforts to determine whether Seller may deliver a product comparable in all material respects to the Category 2 Product generated by or attributable to an Alternate Eligible Facility or Alternate Source (“Alternate Supply”). If the Parties mutually agree to such arrangements for Alternate Supply, they will enter into a separate agreement respecting same and Purchaser will waive the shortfall and any related liquidated damages that may otherwise be payable pursuant to this Confirmation for the amount of such Alternate Supply.
5. Events of Default; Remedies. For purposes of this Transaction:
(a) For the purposes of determining payments under Section 22 of the WSPP Agreement, with respect to this T ransaction, the economic benefits or losses of the Non -Defaulting Party resulting from t ermination of this T ransaction shall be based on the energy and Green Attributes components of the Product.
(b) In the event that Seller fails to Deliver the required quantity of a Category Product for two Generation Sub-terms in any Compliance Period falling within the Generation Term, Purchaser shall have the right to terminate this Confirmation on written notice to Seller provided that
(i) the foregoing shall not constitute an Event of Default and Purchaser’s termination right is limited to this Confirmation,
(ii) Purchaser’s notice shall specify a date of termination , which shall be no earlier than five (5) Business Days and no later than twenty (20) Business Days from the date Purchaser’s notice is received or deemed received by Seller, (iii) there shall be no Termination Payment or other lia bility of Seller to Purchaser except for any damages for failure to Deliver determined in accordance with the WSPP Agreement and Service Schedule R, as amended by this Confirmation, for any completed Generation Sub-term, and
(iv) Purchaser shall remain liable to Seller for any Category Product Delivered prior to the date of termination in Purchaser’s notice (including, for greater certainty, all Green Attributes associated with Energy Delivered prior such termination). (c) The remedies for failure to Deliver or Accept the Product (including Green Attributes) provided for in the WSPP Agreement and Service Schedule R, as amended by this Confirmation (including paragraph (b) above), are the sole and exclusive remedies and all other remedies are waived.
ATTACHMENT 1
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8 6. Importer of Energy/Compliance Obligation. For any Energy imported into California, Seller will be the electricity importer into California for purposes of the Cap and Trade Regulations. The Parties acknowledge that Seller will be responsible for satisfying the Compliance Obligation under the Cap and Trade Regulations associated with the energy which Seller shall schedule and import into the CAISO Balancing Authority as part of the Product to be Delivered under this Confirmation and that Seller may and shall have the right to claim that any Energy that Seller has scheduled and imported into the CAISO Balancing Authority is from a Specified Source and claim the RPS Adjustment with respect to Incremental Energy. Purchaser agrees to assist Seller in making the Specified Source and RPS Adjustment claims, including agreeing as follows:
(a) Specified Source – Category 1 Product. Purchaser agrees, by May 15 following the end of each calendar year in the Generation Term, to provide Seller with a written attestation providing a detailed breakdown of the total quantity of WREGIS Certificates transfer red under this Confirmation associated with the Category 1 Product that have been placed in a WREGIS retirement subaccount and those that remain in a WREGIS active subaccount and the name of each such account.
(b) RPS Adjustment – Category 2 Product .
Purchaser agrees to provide Seller with the
information required by Seller for the purpose of claiming the RPS Adjustment including, but not limited to, providing by May 15 following the end of each calendar year in the Generation Term a written attestation to Sell er that the quantity of WREGIS Certificates transferred under this Confirmation associated with the immediately previous calendar year in the Generation Term as Category 2 Product have been placed in Purchaser ’s WREGIS retirement subaccount and that the RECs represented by such WREGIS Certificates have been designated for retirement for the purposes of Purchaser’s compliance with the RPS for the applicable year in the Generation Term in accordance with the Cap and Trade Regulation (and shall promptly notify Seller of any changes (e.g. subsequent withdrawal of WREGIS Certificates from Purchaser’s WREGIS retirement subaccount) after delivery of the attestation with information as may be required by Seller to comply with Section 95111.g.1.M.2 of the Mandatory Reporting Rule (or any similar or successor provision)). (i) In the event Purchaser re-sells Category 2 Product, Purchaser shall continue to provide the attestation provided in this Section 6
(b) and references to “Purchaser’s
WREGIS retirement subaccount” and “Purchaser ’s compliance with the RPS” shall be read to include the subsequent purchaser’s WREGIS retirement subaccount and compliance with the RPS.
(ii) If Seller does not meet the conditions for the RPS Adjustment as a result of any act or omission of Purchaser (including failure to place WREGIS C ertificates in Purchaser’s own WREGIS retirement subaccount and designate the RECs represented by the WREGIS Certificates for retirement for the purposes of Purchaser’s own compliance with the RPS), Purchaser shall reimburse or pay Seller the cost of Allowances (as defined in Cap and Trade Regulation) purchased or required by Seller as a result of Seller’s inability to claim the RPS Adjustment, at the price established at the next succeeding auction of Allowances hosted by CARB or, failing which, prevailing market prices.
This Section 6 is based on the Cap and Trade Regulations and Mandatory Reporting Rule as of the Reference Date of this Confirmation. In the event that the regulatory requirements for mitigating the Compliance Obligation change after the Reference Date, Purchaser shall make commercially reasonable efforts to assist Seller in meeting such regulatory requirement s. This provision shall survive expiry or earlier termination of this Transaction until such time as the information contemplated herein in respect of the last year of the Generation Term is provided to Seller by Purchaser.
ATTACHMENT 1
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9 7. Standard/Non-Modifiable Terms and Conditions.
(a) This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC 17]
(b) Seller shall be responsible for ensuring that: (i) each Project is certified as an eligible renewable energy resource for the RPSprior to Delivery of Category 1 Product or Category 2 Product hereunder from such Project; and (ii) the Green Attributes have been or will be transferred to Seller and will be transferrable to Purchaser through or using WREGIS, or such similar generation information or attributes tracking system as may be approved by or other method of transfer acceptable to the Energy Commission; (c) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract [STC REC-2]; (d) Seller hereby provides and conveys all Green Attributes associated with all electricity generation from the Project to Purchaser as part of the Product being Delivered. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Project, and Seller agrees to convey and hereby conveys all such Green Attributes to Purchaser as included in the Delivery of the Product from the Project; and (e) For the purposes of this Transaction:
(i) Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after 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 [STC 6]; and
(ii) Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferr ed to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after 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. [STC REC-1]
For the purposes of STC 6 above, for the Category 2 Product, the Parties acknowledge that Incremental Energy, in substitution for Project Energy, and GreenAttributes are Delivered to Purchaser . For the purposes of STC REC -1 above, reference to “ California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission ” shall be read to instead refer to the ATTACHMENT 1
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10 applicable provisions of Chapter 13, Division 2, Title 20 of the California Code of Regulations.
As used in Section 7(e) of these Special Conditions , “Delivery Term” has the same meaning as “Generation Term”provided that, for the purposes of STC 6 above with respect to any facility listed in Schedule “A”, the Parties agree that the representation and warranty therein applies only to the portion of such Delivery Term that is after the eligibility date issued by the CEC and duri ng which the output from that facility is being Delivered to Purchaser.
8. Resale. Seller makes no representation or warranty that the Category 1 Product or Category 2 Product will satisfy applicable Eligibility Requirements if re-sold to a third party by Purchaser. In the event all or any portion of the Category Product(s) purchased or to be purchased by Purchaser hereunder is re-sold by Purchaser, any such resale does not affect Purchaser’s obligations hereunder and Purchaser remains primarily liable to Seller for all Purchaser’s obligations hereunder.
9. Commercially Reasonable Efforts.
(a) A Party required to use or make “reasonable efforts” or “commercially reasonable efforts” pursuant to this Confirmationshall not be required to incur more than$25,000 in aggregate direct or indirect costs, including lost profits, and out -of-pocket costs and expenses, to comply with such “commercially reasonable efforts”, and then only to the extent incurring such costs would be reasonably likely to achieve the desired effect. (b) In the event an issue or circumstance requiring a Party to use or make reasonable efforts or commercially reasonable efforts similarly affects one or more other transactions b etween the Parties, the limit set forth in paragraph (a) above shall not be cumulative to any limits applicable to such other transactions.
10. Supporting Data. For the applicable Category Product Delivered from facilities outside CAISO Balancing Authority Area, Seller will provide Purchaser with hourly meter data, e-Tag data and, if applicable, associated calculations of the lesser of each by hourfor each month RECs are Delivered to Purchaser under this Confirmation.
11. Confidentiality. Section 30.1 of the WSPP Agreement is amended by deleting the “or” immediately before subsection (7) and inserting the following immediately after the end of subsection (7) “or, (8) to Deliver RECs pursuant to the requirements of the Tracking System”.
12. Counterparts/Electronic Execution. This Confirmation may be signed in any number of counterparts with the same effect as if the signatures to the counterparts were upon a single instrument, and the Parties may rely on electronic or scanned signatures as originals. Delivery of an executed signature page of this Confirmation by electronic mail transmission (in portable document format (PDF) or other format agreed by the Parties) shall be the same as delivery of a manually executed signature page.
13. Condition Precedent. This Confirm ation (and the Transaction confirmed thereby) shall not be binding upon any Party until and unless both Powerex and Burbank have executed and delivered this Confirmation to the other Party before 4 :00 p.m. Pacific Prevailing Time on September 23, 2022. If either Party fails to satisfy the foregoing condition precedent, then this Confirmation (and ATTACHMENT 1
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11 the Transaction confirmed thereby) shall have no force and effect and all offers hereunder shall be deemed rescinded.
This Confirmation is being provided pursuant to a nd in accordance with the WSPP Agreement, and constitutes part of and is subject to the terms and provisions of the WSPP Agreement. Terms used but not defined herein shall have the meanings ascribed to them in the WSPP Agreement.
The Parties agree it is their intention that the Transaction provided for in this Confirmation is not capable of being agreed to orally and shall only become binding on the Parties when this Confirmation is executed by both Parties.
ACKNOWLEDGED AND AGREED TO:
POWEREX CORP.* CITY OF BURBANK
Name:
Title:
Date:
*doing business in California as Powerex Energy Corp
Name:
Title:
Date:
Contact: Contact:
Anthony Des Lauriers
Tel: (604) 891-6018
Fax: (604)891-5056
Mandip Samra
Tel: (818) 238-3752
[email protected]
Scheduling:
Tel: (604) 891-5007 (Prescheduler)
Tel: (604) 891-5091 (Real Time)
Tel: (604) 891-5057 (Mid-Office Agreement)
Fax: (604) 891-5045
E-mail: [email protected]
Scheduling:
Tel: (818) 238-3637;
[email protected] (Preschedule)
Tel: (818) 238-3748;
[email protected] (Real Time)
Tel: (818) 238-3671;
[email protected] (Mid-
Office Agreement, Reconciliation)
Tel: (818) 238-3652:
[email protected] (Mid-
Office Agreement, Invoicing)
ATTACHMENT 1
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12 SCHEDULE “A”
Facilities
Part A – Initial Facilities
Facility Name State /
Province
Technology RPS ID Total
Facility
Nameplate
(MW)
Dokie Wind Energy
Project BC Wind 61360A 144
Quality Wind Project BC Wind 62247A 142.2
Cape Scott Wind BC Wind 60600A 99
Meikle Wind Energy
Project BC Wind 63268A 184.6
Shinish Creek Wind
Farm BC Wind 64041A 15
Pennask Wind Farm BC Wind 64015A 15
Moose Lake Wind
Project BC Wind 64287A 15
Part B – Additional Facilities for Category 1 Product
[to be added under the terms of the section - “Facilities” as required] ATTACHMENT 1
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13 SCHEDULE “B”
Additional Definitions
For the purposes of this Confirmation, the following terms shall have the following meanings:
(a) “Accept”, “ Accepts” or “Accepted ” has the same meaning as Acceptance in Section R-3.2.2 of Service Schedule R.
(b) “Agreement”, as used in Section 7 of the Special Conditions, means, collectively, all of the terms applicable to a REC Transaction under the WSPP Agreement, Service Schedule R, and this Confirmation.
(c) “Alternate Eligible Facility” means an alternate generation facility that is certified as an eligible renewable energy resource for the RPS and from which Seller is entitled to energy and associated Green Attributes generated during the Generation Term (or portion thereof in respe ct of which bundled energy and associated Green Attributes to be D elivered hereunder are generated by such facility).
(d) “Alternate Source” means an alternate source of supply of energy and associated Green Attributes generated by the same facility as a Project during the Generation Term and which Seller is entitled to pursuant to its purchase agreements for output from the facility. (e) “Buyer” means Purchaser.
(f) “CAISO Balancing Authority” means, as the context requires, CAISO as “Balancing Authority” or “CAISO Balancing Authority Area”, as such terms are used in the CAISO Tariff. (g) “CAISO Point” means any Locationin the CAISO Balancing Authority or CAISO Controlled Grid, including any Scheduling Point (as such terms are defined in the CAISO Tariff). (h) “CAISO Tariff” means the applicable tariff and protocol provisions of the California Independent System Operator (“CAISO”) (as amended from time to time). (i) “Cap and Trade Regulations ” means the regulations entitled California Cap on Greenhouse Gas Emissions and Market-Based Compliance Mechanisms set forth at Article 5 of Subchapter 10 of Title 17 of the California Code of Regulations.
(j) “Category 1 Product” means the Product where Purchaser has elected to have the energy Delivered as Project Energy in accordance with Delivery Method 1. (k) “Category 1 Product Eligibility Requirements” means, with respect to the Category 1 Product only, any applicable criteria or requirements of the RPS in force and effect as of the Reference Date regarding the eligibility or qualification of the Category 1 Product to meet the criteria of Section 399.16(b)(1) of the California Public Utilities Code and Section 3203(a)(1) of the Calif ornia Code of Regulations (Title 20),
including without limitation any eligibility criteria applicable to an out-of-state resource. (l) “Category 2 Product” means the Product where Purchaser has elected to have Incremental Energy Delivered in substitution for Project Energy in accordance with Delivery Method 2. (m) “Category 2 Product Eligibility Requirements” means, with respect to Category 2 Product only, any applicable criteria or requirements of the RPS in force and effect as of the Reference Date regarding the eligibility or qualification of the Category 2 Product to meet the criteria of Section 399.16(b)(2) of the California Public Utilities Code and Section 3203(b)(1) and (2) ATTACHMENT 1
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14 of the California Code of Regulations (Title
20), including without limitation any eligibility criteria applicable to an out-of-state resource. (n) “Category Product” means Category 1 Product or Category 2 Product, as applicable. (o) “change in law” means “Change in Law” as defined in Service Schedule R, as modified herein. (p) “Compliance Obligation” has the meaning set forth by the Cap and Trade Regulations. (q) “Compliance Period ” has the meaning set forth in Section 3201(h) of the California Code of Regulations (Title 20).
(r) “Deliver” or “ Delivers” has the same meaning as “Delivery(y)(ed)” in Section R -3.2.1 in Service Schedule R.
(s) “Effective Date ” means the date on which both Parties have executed and delivered this Confirmation.
(t) “Eligibility Requirements ” means Category 1 Product Eligibility Requirements or Category 2 Product Eligibility Requirements, as applicable.
(u) “Energy” means Project Energy or Incremental Energy, as applicable. (v) “Energy Commission” or “CEC” means the California Energy Commission. (w) “Environmental Attributes” means Green Attributes.
(x) “Generally Accepted Utility Practice ” means a practice established by the Western Electricity Coordinating Council (“ WECC”) or any successor regional reliability council, as such practice may be revised from time to time, or if no practice is so established, means a practice otherwise generally accepted in the WECC region.
(y) “Generation Sub-term” means any sub-period within the Generation Term as specified in the Energy Delivery Profile Table under the heading “Delivery Met hod Quantity” (and for greater certainty means Generation Term if only one Generation Sub-term). (z) “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Project, and its avoided emission of pollutants. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emission of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potentialthreat of altering the Earth’s climate by trapping heat in the atmosphere;1 (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tag Reporting Rights are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s discretion, and include without limitation those Green Tag Reporting Rights accruing under Section1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international 1 Avoided emissions may or may not have any value for GHG compliance purposes. Although avoided emissions are included in the list of Green Attributes, this inclusion does not create any right to use those avoided emissions to comply with any GHG regulatory program.
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15 or foreign emissions trading program. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other po wer attributes from the Project, (ii) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the pro motion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits. If the Project is a biomass or biogas facility and Seller recei ves any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Project.
(aa) “Green Tag Purchaser”, as used in the definition of Green Attributes, means Purchaser. (bb) “Mandatory Reporting Rule” means the regulations entitled Mandatory Greenhouse Gas Emissions Reporting set forth at Article 2 of Subchapter 10 of Title 17 of the California Code of Regulations. (cc) “Market Event ” means any material structural or organizational change in wholesale energy market(s) in the WECC area (Western Interconnection), including the CAISO wholesale energy market, occurring at any point in time after the Reference Date. (dd) “Party” means Purchaser or Seller, and “Parties” means both Purchaser and Seller. (ee) “Permitted Encumbrances ” means any liens, claims, security interests or other encumbrances arising or attaching upon or after transfer of title or through Purchaser. (ff) “Project” means a facility listed in Schedule “A” provided that, for the purposes of Section 7(d) of the Special Conditions , the term “Project” shall be read to refer to all such facilities listed in Schedule “A” but only to the extent of Seller’s contractual rights to the energy and Green Attributes produced by such facilities. Seller must be contractually entitled to all or a portion of the bundled energy and associated Green Attributes generated by the facilities listed in Schedule “A” during the Generation Term (or portion thereof in which the Product is generated by or attributed to such facility). Purchaser acknowledges that Seller (i) may Deliver the Product from any or all facilities, and (ii) may not have a contractual right to the entire output of such facilities. (gg) “Purchaser Eligibility Failure ” means a failure of a Category Product to meet or satisfy the applicable Eligibility Requirements or a ny element or co mponent thereof which are in the direct control of Purchaser to meet or satisfy as a result of or if caused by or attributable to an act or omission of Purchaser , including use of the Product other than for its own RPS compliance purposes, a failure by Purchaser to a ccept an applicable transfer on WREGIS, to provide information and data available to Purchaser (including as provided by Seller) as may be required to verify the Green Attributes comprised in the Products or failure to retire or designate for retirement the RECs for the purposes of compliance with the RPS. (hh) “Qualifying Event” means (i) a Category Product does not or is not reasonably expected to meet the applicable Eligibility Requirements for any reason other than a Purchaser Eligibility Failure, a Seller Eligibility Failure or Uncontrollable Force, (ii) a ny change in applicable laws or any regulatory or administrative action taken or authorization denied by a US or Canadian federal, state or provincial governmental authority occurring after the Reference Date that prohibits, prevents or materially impairs the ability to import or export electricity at the Canada -US border, or (iii) a Market Event.
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16 (ii) “REC” or “Renewable Energy Credit” means “renewable energy credit” as set forth in California Public Utilities Code Section 399.12(h).
(jj) “Reference Date” means the date that Powerex has executed this Confirmation (as reflected on the signature page hereto.
(kk) “RPS” means the California Renewables Portfolio Standard Program codified at California Public Utilities Code Section 399.11 et seq. as implemented in the applicable provisions of Chapter 13, Division 2, Title 20 of the California Code of Regulations ( Enforcement Procedures for the Renewables Portfolio Standard for Local Publicly Owned Electric Utilities). (ll) “RPS Adjustment” means the reduction in the Compliance Obligation of an electricity importer authorized by and calculated in accordance with section 95852 (b)(4) of the Cap and Trade Regulations and section 95111(b)(5) of the Mandatory Reporting Rule. (mm) “RPS ID ” means the “California Energy Commission RPS certification number”, the “identification number” and/or the “RPS ID”, as such terms a re used by the CEC to describe the identification number for an eligible renewable energy resource that has been certified (or will be certified for the period of Deliveries) as such by the CEC for the purposes of the RPS. The RPS ID for each Project is set out beside the applicable facility under the column “RPS ID” in the table attached hereto as Schedule “A”.
(nn) “Scheduling Point” has the meaning set forth in the CAISO Tariff, including (without limitation) the SYLMARDC_2_N501 and MALIN_5_N101 Scheduling Points. (oo) “Seller Eligibility Failure” means a failure of Category 1 Product or Category 2 Product to meet or satisfy the applicable Eligibility Requirements or element or component thereof applicable to a Category Product which are in the direct control of S eller to meet or satisfy as a result of or if caused or attributable to an act or omission by Seller , unless such fai lure is excused by Uncontrollable Force. For greater certainty, Seller is responsible for ensuring the Project(s) meet or satisfy the applicable Eligibility Requirements.
(pp) “Special Conditions ” means the terms and conditions identified under the heading “Special Conditions” of this Confirmation.
(qq) “Specified Source” means “specified source”, as such term is defined in the Mandatory Reporting Rule.
(rr) “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
(ss) “WREGIS Certificate” means a “Certificate” as defined by WREGIS in the WREGIS Operating Rules and designated by law as eligible for complying with the RPS and for evidencing the Green Attributes associated with the Product.
(tt) “WREGIS Operating Rules” means the operating rules and requirement adopted by WREGIS, as amended from time to time.
(uu) “WREGIS Timelines ” means the time l ine for WREGIS Certificate creation by WREGIS in accordance with WREGIS Operating Rules as applied by WREGIS.
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17 SCHEDULE “C”
Amendments and Modifications to WSPP Agreement and Service Schedule R The Parties agree to the following applications of the WSPP Agreement and the following conditions shall apply to this Transaction.
1. Confidentiality. Section 30 of the WSPP Agreement is amended by adding the following as Section
30.3:
30.3 The Parties acknowledge and agree that the Agreement is subject to the requirements of the California Public Records Act (Cal. Gov. Code § 6250 et seq.). Each Party (a “ Receiving Party”) acknowledges that the other Party (a “ Disclosing Party”) may submit information to the Receiving Party that the Disclosing Party considers confidential, proprietary, or trade secret information pursuant to the Uniform Trade Secrets Act (Cal. Civ. Code § 3426 et seq.) or otherwise protected from disclosure pursuant to an exemption to theCalifornia Public Records Act (Cal. Gov Code §§ 6254 and 6255). In order to designate information as confidential, the Disclosing Party must clearly stamp and identify the specific portion of the material designated with the word “Confidential.” The Parties agree not to over-designate material as confidential. Over-designation would include stamping whole agreements, entire pages or series of pages as confidential that clearly contain information that is not confidential. Upon request or demand of any third person or entity not a party to this Agreement pursuant to the California Public Records Act (Cal. Gov Code §§ 6254 and 6255 ) (“Requestor”) for production, inspection and/or copying of information designated by a Party as confidential information (such designated information, the “Confidential Information”), the Receiving Party shall notify the Disclosing Party as soon as practical that such request has been made. The Disclosing Party shall be solely responsible for taking whatever legal steps are necessary to protect information deemed by it to be Confidential Information and to prevent release of information to the Requestor by the Receiving Party. If the Disclosing Party takes no such action within a reasonable time after receiving t he foregoing notice from the Receiving Party, the Receiving Party shall be permitted to comply with the Requestor’s demand and is not required to defend against it. If the Disclosing Party does take or attempt to take such action, the Receiving Party shall provide timely and reasonable cooperation to the Disclosing Party if requested by the Disclosing Party, for which the Disclosing Party will be responsible for any agreed reasonable expenses incurred by the Receiving Party in providing such cooperation , p
rovided that if Disclosing Party has not obtained a protective order or similar ruling from a court of law or similar judicial body preventing the release of such informationprior to the time required for disclosure by Receiving Party, the Receiving Party shall be permitted to comply with the Requestor’s demand and is not required to defend against it.
2. Clarification Regarding “All Attributes”. The following is inserted after the word “producing” on the fourth line of Section R -2.4.1 of Service Schedule R : “associated with the REC to be transferred”.
3. Clarification Regarding Delivery of RECs . The following is deleted from the first sentence of Section R-3.1.1: “the Contract Quantity to Purchaser” and replaced with “a REC to Purchaser in accordance with this Agreement or as otherwise provided in a Confirmation”.
4. Clarification Regarding Acceptance of RECs. The following is added to the end of Section R-3.1.2 of Service Schedule R: “Purchaser shall not be entitled to reject or refuse to Accept any RECs Delivered to Purchaser which comply with the requirements of a Confirmation pursuant to which they are Delivered. Purchaser’s rejection of or failure to Accept any conforming RECs Delivered in accordance with this Agreement and the applicable Confirmation shall be subject to Section R-
9.1.1 or R-9.1.2 of Service Schedule R, as the case may be, as modified by a Confirmation.” ATTACHMENT 1
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18 5. Clarification Regarding Delivery in Bundled REC Transactions. The following is deleted from the first sentence of Section R-3.2.1: “the Contract Quantity of the REC and the Contract Quantity of the Energy” and replaced with “the REC and the Energy in accordance with this Agreement or as otherwise provided in a Confirmation”.
6. Passage of Title of RECs in Bundled REC Transactions . The second sentence of Section R -3.2.3 of Service Schedule R is deleted and replaced with the following: “If the REC is to be generated on or after the Effective Date, title to the REC shall pass from Seller to Purchaser upon Delivery and Acceptance.”
7. Generation Information and Expedited Certificates . The first sentence of Section R -3.3.1 of Service Schedule R is deleted. The Parties acknowledge and confirm that this Confirmation does not provide for forward transfer certificates in WREGIS or for any other designated Tracking System to expedite transfer of certificates.
8. Clarification Regarding Issuance of RECs . The first sentence of Section R -3.3.2 is deleted up to the semicolon and replaced with the following: “Seller is responsible for ensuring the transfer and issuance of RECs by the Tracking System;”.
9. Clarification Regarding Conveyance. The words “As of both Delivery and” are deleted from the first line of Section R-3.4 of Service Schedule R and replaced with “Upon”.
10. Definition of “Change in Law”. The first sentence of Section R -5.2.2(a) is deleted and replaced with the following: “(a) “Change in Law” means any addition, amendment, decision, ruling, order, binding interpretation, determination, guideline, policy or guidance by or of a Governmental Authority, to or regarding any laws, rules, regulations, orders, or judicial precedent, that applies to an Applicable Program designated in the Confirmation, that is enacted, issued or becomes effective after the Reference Date and materially affects the Applicable Program or compliance of the REC with the Applicable Program.”
11. Title Representation. The words “As of both Delivery and” are deleted from the first line of Section R-6.1 of Service Schedule R and replaced with “Upon”. The following is added at the end of the last sentence of Section R-6.1: “other than Permitted Encumbrances.”
12. Other Programs . The following is added after the last sentence of Section R -6.3: “Except as expressly set forth herein regarding the Applicable Program, Seller makes no re presentation or warranty that the Product will meet any particular requirement or will have any particular use or value or will be eligible for any particular renewable portfolio standard, green pricing program or governmental or voluntary compliance progr am or will offset, avoid, reduce or obtain credit for any reduction of pollutants or air emissions created by Purchaser’s or any other person’s electric generating facilities or any other facilities (each, an “Alternative Program”), and Seller shall have n
o obligations to Purchaser with respect to any such Alternative Programs.”
13. Information Disclosed. The end of the last sentence of Section R -7.2 is deleted after the word “Confirmation.”
14. Uncontrollable Force. For purposes of this Transaction, the performance of the Parties’ obligations under the WSPP Agreement and this Confirmation shall be subject to Uncontrollable Force and Section 10 of the WSPP Agreement shall apply such that either Party will be relieved of its obligations to sell and Deliver or purch ase and Accept the Product without liability to the extent that, and for the period during which such performance is prevented by Uncontrollable Force. The following is added at the end of subparagraph (ii) of Section 10 of the WSPP Agreement as set out in Section R-8: “, except to the extent such supply is itself subject to Uncontrollable Force.” The following is added to the sixth line of the addition to the second paragraph of Section 10 of the WSPP Agreement as set out in Section R -8 after the words “ Schedules B and C”: “or similar ATTACHMENT 1
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19 products which are not of an as-run nature”. In the event of any dispute regarding Seller’s allocation of production during a period of curtailment, all information relating to such allocation and Seller’s compliance with Section R-8 shall be provided to a qualified independent third party selected by Seller for review and determination and shall not be provided directly to Purchaser. Purchaser shall be entitled to receive a written copy of such independent third party’s determination provided that no confidential or commercially sensitive information of Seller or third parties is disclosed therein or has been redacted therefrom.
15. Failure to Accept or Deliver in Bundled REC Transactions. The last sentence of the modification to Section 21.3(a)(1) of the WSPP Agreement as set forth in Section R-9.1.2(a) is deleted. The text falling after the words “achieve such reduction)” in the modification to Section 21.3(a)(2) of the WSPP Agreement as set forth in Section R-9.1.2(a) is deleted.
16. Replacement Price and Resale Price. “Energy” is deleted from the eighth line of Section R-10.1.4 and from the sixth line of Section R -10.1.5 and replaced with “the Product (or such component thereof)”.
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WSPP Agreement
C
hanges Effective August 12, 2021
This version includes all revisions approved by the Federal Energy Regulatory Commission (FERC) in orders issued through October 25, 2020. The most recent revisions are to update the the List of Members within the Agreement, per the FERC’s unpublished letter order dated October 25, 2020 (Docket No. ER21-2785-000). The FERC accepted the revisions effective August 12, 2021 for the metadata and, for each change in the Member List, on the applicable date of the change as stated in its order.
This version of the WSPP Agreement is prepared for the convenience of WSPP Members. The WSPP Agreement as filed with the FERC is available at www.FERC.gov and specifically http://etariff.ferc.gov/TariffList.aspx.
This explanatory page is not part of the WSPP Agreement and is not filed with the FERC.
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WSPP AGREEMENT
WSPP INC.
FIRST REVISED RATE SCHEDULE FERC NO. 6
Superseding
Rate Schedule FERC No. 6
© WSPP Inc. 2003
All rights reserved
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TABLE OF CONTENTS
1. PARTIES
2. RECITALS
3. AGREEMENT
4. DEFINITIONS
5. TERM, TERMINATION AND WITHDRAWAL
6. SERVICE SCHEDULES AND WSPP DEFAULT TRANSMISSION TARIFF
7. ADMINISTRATION
8. EXECUTIVE AND OPERATING COMMITTEES
9. PAYMENTS
10. UNCONTROLLABLE FORCES
11. WAIVERS
12. NOTICES
13. APPROVALS AND EFFECTIVENESS
14. TRANSFER OF INTEREST IN AGREEMENT
15. SEVERABILITY
16. MEMBERSHIP
17. RELATIONSHIP OF PARTIES
18. NO DEDICATION OF FACILITIES
19. NO RETAIL SERVICES
20. THIRD PARTY BENEFICIARIES
21. LIABILITY AND DAMAGES
22. DEFAULT OF TRANSACTIONS UNDER THIS AGREEMENT AND
CONFIRMATIONS
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22A. DEFAULT IN PAYMENT OF WSPP OPERATING COSTS
23. OTHER AGREEMENTS
24. GOVERNING LAW
25. JUDGMENTS AND DETERMINATIONS
26. COMPLETE AGREEMENT
27. CREDITWORTHINESS
28. NETTING
29. TAXES
30. CONFIDENTIALITY
31. TRANSMISSION TARIFF
32. TRANSACTION SPECIFIC TERMS AND ORAL AGREEMENTS
33. PERFORMANCE, TITLE, AND WARRANTIES FOR TRANSACTIONS
UNDER SERVICE SCHEDULES
34. DISPUTE RESOLUTION
35. FORWARD CONTRACTS
36. TRADE OPTION EXEMPTION
37. ADDITIONAL REPRESENTATIONS AND WARRANTIES
38. FLOATING PRICES
39. AMENDMENT
40. EXECUTION BY COUNTERPARTS
41. WITNESS
EXHIBIT A: NETTING
EXHIBIT B: FORM OF COUNTERPARTY GUARANTEE AGREEMENT
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EXHIBIT C: SAMPLE FORM FOR CONFIRMATION
EXHIBIT D: WSPP MEDIATION AND ARBITRATION PROCEDURES
SERVICE SCHEDULES
A. ECONOMY ENERGY SERVICE
B. UNIT COMMITMENT SERVICE
C. FIRM CAPACITY/ENERGY SALE OR EXCHANGE SERVICE
D. OPERATING RESERVE – SPINNING AND OPERATING RESERVE –
SUPPLEMENTAL
E. ENERGY IMBALANCE AND GENERATOR IMBALANCE POWER
R. RENEWABLE ENERGY CERTIFICATE TRANSACTIONS WITH AND
WITHOUT ENERGY
SCHEDULE Q: FERC ACCEPTED SELLER-SPECIFIC COST-BASED RATE SCHEDULES
LIST OF MEMBERS
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1. PARTIES:
The Parties to this WSPP Agreement (hereinafter referred to as "Agreement") are those entities that have executed this Agreement, hereinafter sometimes referred to individually as "Party" and collectively as "Parties," but excluding any such entity that withdraws its participation in the Agreement. An entity shall become a Party on the date specified in Section 16.6.
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2. RECITALS
2.1 Through this Agreement, the WSPP administers a multi-lateral, standardized agreement applicable to capacity and/or energy transactions between members and is available to entities (which qualify for membership under Section 16) throughout the entire continental United States, Canada, and Mexico.
2.2 This Agreement serves two functions. First, it sets out the rules applicable to the operation of the WSPP. Second, it sets out the terms for the standardized agreement used for capacity and/or energy transactions between members.
2.3 This Agreement facilitates physical transactions in capacity and/or energy under a FERC accepted or approved rate schedule (this Rate Schedule FERC No. 6).
2.4 Through the standardization of terms for transactions in capacity and/or energy which facilitates such transactions, the public interest has been and will continue to be served.
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3. AGREEMENT:
In consideration of the mutual covenants and promises herein set forth, the Parties agree as follows:
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4. DEFINITIONS:
The following terms, when used herein with initial capitalization, whether in the singular or in the plural, shall have the meanings specified:
Agreement: This WSPP Agreement, including the Service Schedules and Exhibits attached hereto, as amended; provided, however, that Confirmation(s) are not included within this definition.
Administrative Committee: A sub-committee of the Executive Committee in accordance with Section 8.1.2.
Broker: An entity or person that arranges trades or brings together Purchasers and Sellers without taking title to the power.
Business Day(s): Any day other than a Saturday or Sunday or a national (United States or Canadian, whichever is applicable) holiday. United States holidays shall be holidays observed by Federal Reserve member banks in New York City. Where both the Seller and the Purchaser have their principal place of business in the United States, Canadian holidays shall not apply. Similarly, where both the Seller and the Purchaser have their principal places of business in Canada, Canadian holidays shall apply and United States holidays shall not apply. In situations where one Party has its principal place of business within the United States and the other Party's principal place of business is within Canada, both United States and Canadian holidays shall apply.
California ISO: The California Independent System Operator Corporation or any successor organization.
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Confirmation(s): The confirmations for transactions developed and made effective in accordance with Section 32 or Electronic Platform Confirmations.
Contract Price: The price agreed to between the Seller and the Purchaser for a transaction under the Agreement and Confirmation.
Contract Quantity: The amount of capacity and/or energy to be supplied for a transaction under the Agreement.
Control Area: An electric system capable of regulating its generation in order to maintain its interchange schedule with other electric systems and to contribute its frequency bias obligation to the interconnection as specified in the North American Electric Reliability Council (NERC) Operating Guidelines.
Costs: As defined in Section 22.3 of this Agreement.
Damages Settlement Transaction: A transaction where, after non-performance under a Confirmation, the Parties enter into a second transaction for the purpose of finally settling damages incurred by the Performing Party due to non-performance of such Confirmation.
Dealer: An entity or person that buys or sells power and takes title to the power at some point.
Demand Response: A reduction in the consumption of electric energy by customers from their expected consumption in response to an increase in the price of electric energy or to incentive payments designed to induce lower consumption of electric energy.
Demand Response Entity: An entity or lawful association which is not an Electric Utility, Qualifying Facility, or Retail Entity, which sells or otherwise provides Demand Response through wholesale transactions.
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Defaulting Party: As defined in Section 22.1 of this Agreement.
Determination Period: As defined in Section 38.2 of this Agreement.
Documentary Writing: A document which is physically delivered by courier or U.S. mail, or a copy of which is transmitted by telefacsimile or other electronic means.
Economy Energy Service: Non-firm energy transaction whereby the Seller has agreed to sell or exchange and the Purchaser has agreed to buy or exchange energy that is subject to immediate interruption upon notification, in accordance with the Agreement, including Service Schedule A, and any applicable Confirmation.
Electric Utility: An entity or lawful association which (i) is a public utility, Independent Power Producer, or Power Marketer regulated under applicable state law or the Federal Power Act, or (ii) is exempted from such regulation under the Federal Power Act because it is the United States, a State or any political subdivision thereof or an agency of any of the foregoing, or a Rural Utilities Service cooperative, or (iii) is a public utility, Independent Power Producer, or Power Marketer located in Canada or Mexico that is similarly regulated.
Electronic Platform Confirmation: agreed terms and conditions of a transaction, which agreement (a) was made through electronic entry of information and terms on, and in a manner that complies with the procedures of, the applicable electronic trading platform or exchange, (b) includes, at a minimum, the Standard Confirmation Provisions, and (c) is available to either Party for retrieval from the applicable electronic trading platform or exchange in printable or electronic form.
Electronic Writing:
(1) Recorded oral conversation; or
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(2) electronic communications, including but not limited to e-mail, if the Parties to the transaction use such method to create an electronic writing for the Confirmation for such transaction and, except with respect to e-mail, specifically agree to the method of electronic communication.
Electronic Writings shall not include the transmittal of a copy of a document by electronic means, which is considered a Documentary Writing.
ERCOT: Electric Reliability Council of Texas, Inc., and any successor organization.
Event of Default: As defined in Section 22.1 of this Agreement.
Executive Committee: The committee established pursuant to Section 8 of this Agreement.
FERC: The Federal Energy Regulatory Commission or its regulatory successor.
Firm Capacity/Energy Sale or Exchange Service: Firm capacity and/or energy transaction whereby the Seller has agreed to sell or exchange and the Purchaser has agreed to buy or exchange for a specified period available capacity with or without associated energy which may include a Physically-Settled Option and a capacity transaction in accordance with the Agreement, including Service Schedule C, and any applicable Confirmation.
First Party: As defined in Section 27 of this Agreement.
Floating Price: As defined in Section 38.1 of this Agreement.
Gains: As defined in Section 22.3 of this Agreement.
Guarantee Agreement: An agreement providing a guarantee issued by a parent company or another entity guaranteeing responsibility for obligations arising under this Agreement and Confirmation. A sample form of Guarantee Agreement is provided in Exhibit B.
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Guarantor: The entity providing a guarantee pursuant to a Guarantee Agreement.
Hub: An electronic communication center that functions as a central point to electronically receive and assemble data for offers to buy or sell power or transmission service from each Party and make that data electronically available concurrently to all Parties.
Incremental Cost: The forecasted expense incurred by the Seller in providing an additional increment of energy or capacity during a given hour.
Independent Power Producer: An entity which is a non-traditional public utility that produces and sells electricity but which does not have a retail service franchise.
Letter of Credit: An irrevocable, transferable, standby letter of credit, issued by an issuer acceptable to the Party requiring the Letter of Credit.
Losses: As defined in Section 22.3 of this Agreement.
Market Disruption Event: As defined in Section 38.2 of this Agreement.
NERC: North American Electric Reliability Council or any successor organization.
Non-Defaulting Party: As defined in Section 22.1(a) of this Agreement.
Non-Performing Party: As defined in Section 21.3(a) of this Agreement.
Non-Standard Confirmation Provisions: Provisions other than Standard Confirmation Provisions.
NYMEX: New York Mercantile Exchange and any successor organization.
Operating Agent: An agent of the WSPP as may be designated by the Executive Committee from time to time.
Operating Committee: That committee established pursuant to Section 8 of this Agreement.
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Party or Parties: As defined in Section 1 of this Agreement.
Performing Party: As defined in Section 21.3(a) of this Agreement.
Power Marketer: An entity which buys, sells, and takes title to electric energy, transmission and/or other services from traditional utilities and other suppliers.
Physically-Settled Option: Includes (i) a call option which is the right, but not the obligation, to buy an underlying power product as defined under Service Schedules B or C according to the price and exercise terms set forth in the Confirmation; and (ii) a put option which is the right, but not the obligation, to sell an underlying power product as defined under Service Schedules B or C according to the price and exercise terms set forth in the Confirmation.
Premium: The amount paid by the Purchaser of a Physically-Settled Option to the Seller of such option by the date agreed to by the Parties in the Confirmation.
Present Value Rate: As defined in Section 22.3(b) of this Agreement.
Purchaser: Any Party which agrees to buy or receive from one or more of the other Parties any service pursuant to the Agreement and any applicable Confirmation.
Qualifying Facility: A facility which is a qualifying small power production facility or a qualifying cogeneration facility as these terms are defined in Federal Power Act Sections 3(17)(A), 3(17)(C), 3(18)(A), and 3(18)(B); which meets the requirements set forth in 18 C.F.R. §§ 292.203-292.209; or a facility in Canada or Mexico that complies with similar requirements.
Replacement Price: The price at which the Purchaser, acting in a commercially reasonable manner, effects a purchase of substitute capacity and/or energy in place of the capacity and/or energy not delivered (for energy) or made available (for capacity ATTACHMENT 1
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only) by the Seller or, absent such a purchase, the market price for such quantity of capacity and/or energy, as determined by the Purchaser in a commercially reasonable manner, at the delivery point specified for the transaction in the Confirmation.
Resale Price: The price at which the Seller, acting in a commercially reasonable manner, effects a resale of the capacity and/or energy not received by the Purchaser or, absent such a resale, the market price for such quantity of capacity and/or energy, as determined by the Seller in a commercially reasonable manner at the delivery point specified for the transaction in a Confirmation.
Retail Entity: A retail aggregator or supplier or retail customer; provided, however, only those Retail Entities eligible for transmission service under the FERC’s pro forma open access transmission tariff are eligible to become members of the WSPP.
Second Party: As defined in Section 27 of this Agreement.
Seller: Any Party which agrees to sell or provide to one or more of the other Parties any service pursuant to the Agreement and the applicable Confirmation.
Service Schedule: A schedule of services established pursuant to Section 6 of this Agreement on file with FERC as part of this Agreement.
Standard Confirmation Provisions: Provisions setting forth: Seller, Purchaser, period of delivery, schedule, delivery rate, delivery points, type of service (e.g. Service Schedule A, B, C or other), contract quantity, price, transmission path (if any), date, and certain additional information for physically settled options (option type, option style, exercise date or period, premium, premium payout date, and method for providing notice of exercise).
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Successor in Operation: The successor entity which takes over the wholesale electric trading operations of the first entity either through a merger or restructuring. A Successor in Operation shall not include an entity which merely acquires power sales contracts from the first entity either through a purchase or other means without taking over the wholesale electric trading operations of the first entity.
Terminated Transaction: As defined in Section 22.2 of this Agreement.
Termination Payment: As defined in Section 22.2 of this Agreement.
Trading Day: As defined in Section 38.2 of this Agreement.
Uncontrollable Forces: As defined in Section 10 of this Agreement or in a Confirmation.
Unit Commitment Service: A capacity and/or associated scheduled energy transaction or a Physically-Settled Option under which the Seller has agreed to sell and the Purchaser has agreed to buy from a specified unit(s) for a specified period, in accordance with the Agreement, including Service Schedule B, and any applicable Confirmation.
WSPP: WSPP Inc., a corporation organized in 1995 and duly existing under the Utah Revised Nonprofit Corporation Act.
WSPP Default Transmission Tariff: The transmission tariff filed on behalf of WSPP members with FERC as it may be amended from time to time.
WSPP Homepage: WSPP’s internet web site, www.wspp.org.
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5. TERM, TERMINATION AND WITHDRAWAL:
5.1 This Agreement shall remain in effect until the Executive Committee, consistent with the voting provisions of Section 8.3, votes to terminate this Agreement and FERC accepts that termination, or FERC otherwise terminates the Agreement.
5.2 Any Party may withdraw its participation as a member of the WSPP and as a Party to this Agreement by providing thirty (30) days prior written notice to the Operating Agent and to the WSPP Homepage, and to all of its counterparties to outstanding transactions. As of the effective date of any withdrawal, the withdrawing Party shall have no further rights or obligations under this Agreement or as a member of the WSPP, except with respect to each outstanding Confirmation, all outstanding rights and obligations arising under any such Confirmation and this Agreement shall remain in full force and effect as if the withdrawal had not occurred. No Party shall oppose, before any court or regulatory agencies having jurisdiction, any other Party's withdrawal as provided in this Section.
5.3 Except as provided for in Section 5.2, after termination, or withdrawal with respect to the withdrawing Party, all rights to services provided under this Agreement shall cease, and no Party shall claim or assert any continuing right to such services thereunder. Except as provided in Section 5.2, no Party shall be required to provide services based in whole or in part on the existence of this Agreement or on the provision of services under this Agreement beyond the termination date, or date of withdrawal with respect to the withdrawing Party. If the Parties have entered into a master confirmation agreement only for WSPP transactions as that term is defined in Section 32.10, the withdrawing Party shall have no further rights under that ATTACHMENT 1
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master confirmation agreement except for transactions that were outstanding at the time of the withdrawal.
5.4 The Parties subject to FERC jurisdiction under the Federal Power Act shall have the right to terminate their participation as a Member of the WSPP and as Party to this Agreement and any Confirmation without the necessity of filing with or approval by FERC, provided that such Parties comply with the requirements of Section 5.2.
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6. SERVICE SCHEDULES AND WSPP DEFAULT TRANSMISSION TARIFF:
6.1 The Parties contemplate that they may, from time to time, add or remove Service Schedules under this Agreement. The attached Service Schedules A through E for Economy Energy Service, Unit Commitment Service, Firm Capacity/Energy Sale or Exchange Service, Operating Reserve – Spinning and Operating Reserve – Supplemental, and Energy Imbalance and Generator Imbalance Power, and Service Schedule R for Renewable Energy Certificate Transactions With And Without Energy, are incorporated into and made a part of this Agreement. Nothing contained herein shall be construed as affecting in any way the right of the Parties to jointly make application to FERC for a change in the rates and charges, classification, service, terms, or conditions affecting WSPP transactions under Section 205 of the Federal Power Act and pursuant to FERC rules and regulations promulgated thereunder. Additional Service Schedules or amendments to existing Service Schedules, if any, shall be adopted only by amendment of this Agreement approved by the Executive Committee pursuant to Section 8.3 and shall become effective on the effective date allowed or accepted by FERC consistent with Section
39. 6.2 [RESERVED]
6.3 When the WSPP Default Transmission Tariff applies as specified in the preamble to such Default Transmission Tariff, Transmission Service under it shall be available both to Parties and non-Parties under this Agreement; provided, however, each Party or non-Party must be an eligible customer under the WSPP Default Transmission Tariff in order to receive service.
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7. ADMINISTRATION:
7.1 The WSPP shall perform the administrative tasks necessary and appropriate to implement this Agreement. All authority to direct, manage and administer the WSPP shall reside in the Executive Committee. All duties assigned under this Agreement, or otherwise, to the Operating Committee, sub-committees, officers, Administrative Committee, or Operating Agent, are delegated powers of the Executive Committee and are subject to the Executive Committee’s direction and control. The WSPP may engage the services of an Operating Agent, from time to time, to perform tasks in furtherance of this Agreement.
7.2 At least sixty (60) days prior to each calendar year that this Agreement is in effect, the Administrative Committee shall submit a budget for said year of operation to the Operating Committee for review. The proposed budget shall then be submitted, with the Operating Committee’s recommendations, to the Executive Committee.
The Executive Committee may approve the budget as submitted or with revisions.
The Administrative Committee, Operating Committee, and Executive Committee shall address any appropriate revisions of the budget in the same manner.
7.3 The WSPP shall, as necessary, bill the Parties for costs incurred under this Agreement on an estimated basis reasonably in advance of when due, and such billings shall be paid by the Parties when due. Such billings shall be adjusted in the following month(s) to reflect recorded costs. Billing and payment of WSPP costs shall otherwise be implemented in accordance with the provisions of Section
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7.4 The WSPP shall maintain the WSPP Homepage and, as it deems appropriate, may engage a contractor for this purpose.
7.5 Each Party shall maintain a link to the WSPP Homepage and shall be responsible for expenses related thereto.
7.6 The WSPP, at reasonable times and places, shall make available its books of account, and records and documentation supporting expenditures under this Agreement, for the inspection of any Party for a period of time not to exceed two (2) years from the time such expenditures were incurred. A Party requesting review of the WSPP’s records shall give the WSPP sufficient notice of its intent, but in no event less than thirty (30) days. The requesting Party may perform this review using personnel from its own staff or designate a certified public accounting firm for the purpose of this review. All costs incurred to perform this review shall be at the requesting Party's own expense. The Party performing the review shall not voluntarily release the WSPP’s records or disclose any information contained therein to any third party unless the written consent of the WSPP and the Executive Committee has been obtained, except as required by law.
7.7 Upon the termination of this Agreement, in accordance with applicable law, the WSPP shall dispose of any and all of its assets and wind up its affairs as the Executive Committee may direct.
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8. EXECUTIVE AND OPERATING COMMITTEES:
As a means of securing effective and timely cooperation within the activities hereunder and as a means of dealing on a prompt and orderly basis with various problems which may arise in connection with system coordination and operation under changing conditions, the Parties hereby establish an Executive Committee and an Operating Committee.
8.1 Executive Committee:
The Executive Committee shall consist of one representative and an alternate from each Party designated pursuant to Section 8.5 herein. The responsibilities of the Executive Committee are as follows:
8.1.1 To establish and amend bylaws of the WSPP consistent with this Agreement and to serve as the Board of Directors of the WSPP in accordance with applicable law.
8.1.2 To establish standing or ad hoc sub-committees as it may from time to time deem necessary or appropriate and appoint or elect members thereto. Such sub-committees shall include an Administrative Committee, as a standing committee, to administer the affairs of the WSPP as the Executive Committee may direct or approve. The Administrative Committee shall be comprised of the Chairman, Vice-Chairman, Secretary and Treasurer of the WSPP and the Chairman, and Vice-Chairman, and Secretary of the Operating Committee.
8.1.3 To review at least annually the service activities hereunder to ensure that such activities are consistent with the spirit and intent of this Agreement.
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8.1.4 To review any unresolved issues which may arise hereunder and endeavor to resolve the issues.
8.1.5 To review and approve the WSPP’s annual budget under this Agreement, and any revision thereto, in accordance with Section 7.2 of this Agreement or otherwise as the Executive Committee deems necessary or appropriate.
8.1.6 To amend this Agreement, from time to time, provided that no such amendment or restatement shall be effective unless approved or accepted by the FERC and subject to terms and conditions of such approval or acceptance. The effectiveness of any amendment also shall be consistent with Section 39.
8.1.7 To review and act on the application of an entity to become a Party to this Agreement, or to delegate such authority as the Executive Committee deems appropriate.
8.1.8 To do such other things and carry out such duties as specifically required or authorized by this Agreement.
8.1.9 To notify any Party of the rescission of its interest in this Agreement due to its failure to continue to meet the requirements of Section 16.1, or to delegate such authority to the Chairman of the Executive Committee, the Chairman of the Operating Committee, or the Administrative Committee.
8.1.10 To arrange for legal representation of the WSPP.
8.2 Operating Committee:
The Operating Committee shall consist of one representative and an alternate from each Party designated pursuant to Section 8.5. The responsibilities of the Operating Committee are as follows:
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8.2.1 To establish, review, approve, or modify procedures and standard practices, consistent with the provisions hereof, for the guidance of operating employees in the Parties' electric systems as to matters affecting transactions under this Agreement.
8.2.2 To submit to the Executive Committee any proposed revisions to the Service Schedules or proposed additional Service Schedules.
8.2.3 To submit to the Executive Committee proposed amendments to this Agreement, provided that the Operating Committee shall have no authority to amend this Agreement, and further provided that the Executive Committee may amend this Agreement under Section 8.1.6 without having first received recommendations from the Operating Committee.
8.2.4 To establish, review, approve, or modify any scheduling or operating procedures required in connection with transactions under this Agreement.
8.2.5 To review and make recommendations to the Executive Committee for approval of the annual budget of the WSPP under this Agreement, including any proposed revisions thereto.
8.2.6 To review and recommend as necessary the types and arrangement of equipment for intersystem communication facilities to enhance transactions and benefits under this Agreement.
8.2.7 To monitor the administration and costs of the WSPP Homepage.
8.2.8 If the Executive Committee so directs, to review new member applications for membership in the WSPP under this Agreement and make ATTACHMENT 1
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recommendations on said applications to the Executive Committee, or to delegate such authority as the Operating Committee deems appropriate.
8.2.9 To establish standing or ad hoc sub-committees and appoint or elect members of the Operating Committee thereto, provided that such sub- committees shall make recommendations to the Operating Committee and shall not be authorized to take any action or exercise any power reserved to the Operating Committee. Each sub-committee may elect a chairman, vice chairman, and secretary as it deems appropriate.
8.2.10 To do such other things and carry out such duties as specifically required or authorized by this Agreement or as directed by the Executive Committee; provided, however, that the Operating Committee shall have no authority to amend this Agreement.
8.3 All matters which require Operating Committee or Executive Committee approval as provided in this Agreement shall be by no less than ninety percent (90%) affirmative agreement of the committee members present or voting by proxy.
8.4 Unless otherwise agreed by all committee members of the Executive Committee or Operating Committee, as applicable, the Chairman of the Executive Committee and the Chairman of the Operating Committee shall cause all members of the applicable committee to receive notice of a committee meeting at least ten (10) Business Days prior to the date of the meeting. Such notice shall include an agenda of matters to be discussed and voted on at the meeting. All material issues to be submitted to a vote of the committee shall appear on the agenda.
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8.5 In accordance with Section 16.5.1, each Party shall give notice to the WSPP of the name of its designated representative and alternate representative (to act in the absence of the designated representative) on each of the Executive Committee and Operating Committee, and of any changes thereto, and WSPP shall publish a listing of all such representatives on the WSPP Homepage. Each Party's designated representatives shall be authorized to act on its behalf with respect to votes taken of members of each committee and other activities of the committee.
8.6 The Executive Committee shall meet no less than once annually and otherwise as determined by its Chairman in his discretion. The Operating Committee shall meet as necessary, as determined by its Chairman in his discretion. A Chairman shall call a meeting of such committee upon the written request of not less than ten (10) members of the applicable committee.
8.7 The Executive Committee shall elect a Chairman, Vice-Chairman, Secretary and Treasurer. The Operating Committee shall elect a Chairman, Vice-Chairman, and Secretary. These officers shall serve terms of two-years duration, which terms shall commence on January 1 of the year following the election and expire on December 31 of the subsequent year, provided, that despite the expiration of an officer's term, the officer shall continue to serve until the officer's successor is elected and commences to serve, and further provided that with or without cause, the Executive Committee or Operating Committee, as applicable, may elect a substitute officer prior to the expiration of a term.
8.7.1 The Chairman of the Executive Committee shall be the Chairman of the WSPP. The Chairman shall preside over meetings of the Executive ATTACHMENT 1
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Committee and, when the Executive Committee is not in session, exercise day to day management and control of the business and affairs of the WSPP, subject at all times to this Agreement and the direction of the Executive Committee.
8.7.2 The Vice-Chairman of the Executive Committee shall be the Vice-Chairman of the WSPP. The Vice-Chairman, in the absence or disability of the Chairman, shall exercise the powers and perform the duties of the Chairman and such other duties as the Executive Committee or the Chairman may prescribe, subject at all times to this Agreement and the direction of the Executive Committee.
8.7.3 The Secretary of the Executve Committee shall be the Secretary of the WSPP.
The Secretary, or his designee, shall record minutes of meetings and actions of the Executive Committee, perform the customary duties of a secretary of a non-profit corporation, and attend to the giving and serving of all notices required by law or under this Agreement as the Chairman may direct.
8.7.4 The Treasurer of the Executive Committee shall be the Treasurer of the WSPP. The Treasurer shall have custody of all funds, securities, and evidences of indebtedness of the Corporation. The Treasurer shall receive and give receipts for moneys paid in on account of the Corporation and shall pay out of the funds on hand any bills, payrolls and other just debts of the Corporation of whatever nature upon maturity. The Treasurer shall maintain full and accurate accounts of all moneys received and paid out on account of the Corporation. The Treasurer shall deposit all moneys and other valuables ATTACHMENT 1
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in the name and to the credit of the Corporation in such depositories as may be designated by the Executive Committee. The Treasurer shall adhere to budgets determined by the Executive Committee, including the annual budget under section 8.1.4 of this Agreement, and shall perform such other duties as are customary for a treasurer of a non-profit corporation.
8.7.5. The Chairman of the Operating Committee shall preside over Operating Committee meetings. The Vice Chairman of the Operating Committee shall serve in the absence of the Chairman and perform such other duties as the Operating Committee may assign. The Secretary of the Operating Committee, or his designee, shall record minutes of meetings and actions of the Operating Committee, and shall give notice of meetings as the Chairman may direct.
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9. PAYMENTS:
9.1 The accounting and billing period for transactions under this Agreement shall be one (1) calendar month. Bills sent to any Party shall be sent to the appropriate billing address as set forth on the WSPP homepage or as otherwise specified by such Party.
9.2 Payments for amounts billed under this Agreement and any Confirmation shall be received by the Party to be paid on the 20th day of the month in which the invoice was received or the tenth (10) day after receipt of the bill, whichever is later.
Notwithstanding the foregoing, Premiums shall be paid within three (3) Business Days of receipt of the invoice. Payment shall be made at the location designated by the Party to which payment is due. Payment shall be considered received when payment is received by the Party to which Payment is due at the location designated by that Party. If the due date falls on a non-Business Day of either Party, then the payment shall be due on the next following Business Day.
9.3 Amounts not paid on or before the due date shall be payable with interest calculated daily, at a rate equal to 200 basis points above the per annum Prime Rate reported daily in the Wall Street Journal for the period beginning on the day after the due date and ending on the day of payment, provided that such interest shall not exceed the amount permitted by law.
9.4 In order to dispute a bill in whole or in part, a Party must provide written notice of the dispute to the other Party to the transaction. Such written notice shall specify the amount in dispute and state the basis for the dispute. In case any portion of any bill is in dispute, the entire bill shall be paid when due. Any excess amount of bills ATTACHMENT 1
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which, through inadvertent errors or as a result of a dispute, may have been overpaid shall be returned by the owing Party upon determination of the correct amount, with interest calculated in the manner set forth in Section 9.3. A Party shall have the right to dispute the accuracy of any bill or payment only for a period of two (2) years from the date on which the bill was initially delivered.
9.5 If a Party’s records reveal that a bill was not delivered, then the Party may deliver to the appropriate Party a bill within two (2) years from the date on which the bill would have been delivered under Section 9.1 of this Agreement. The right to payment is waived with respect to any amounts not billed within such two (2) year period.
9.6 Each Party, or any third party representative of a Party, shall keep complete and accurate records, and shall maintain such data as may be necessary for the purpose of ascertaining the accuracy of all relevant data, estimates, or statements of charges submitted hereunder for a period of two (2) years from the date the bill was delivered under this Agreement and/or Confirmation.
Within a two (2) year period from the date on which the bill was initially delivered, any Party to the applicable transaction may request in writing copies of the records of the other Party for that transaction to the extent reasonably necessary to verify the accuracy of any statement or charge. The Party from which documents or data has been requested shall provide all reasonably requested documents and data within a reasonable time period.
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10. UNCONTROLLABLE FORCES:
No Party shall be considered to be in breach of this Agreement or any applicable Confirmation to the extent that a failure to perform its obligations under this Agreement or any such Confirmation is due to an Uncontrollable Force. The term "Uncontrollable Force" means an event or circumstance which prevents one Party from performing its obligations under one or more transactions, which event or circumstance is not within the reasonable control of, or the result of the negligence of, the claiming Party, and which by the exercise of due diligence the claiming Party is unable to avoid, cause to be avoided, or overcome.
So long as the requirements of the preceding sentence are met, an “Uncontrollable Force” may include and is not restricted to flood, drought, earthquake, storm, fire, lightning, epidemic, war, riot, act of terrorism, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority, and action or nonaction by, or failure to obtain the necessary authorizations or approvals from, any governmental agency or authority.
The following shall not be considered “Uncontrollable Forces”: (i) Seller’s cost of obtaining capacity and/or energy; or (ii) Purchaser’s inability due to the price of the capacity and/or energy, to use or resell such capacity and/or energy. No Party shall, however, be relieved of liability for failure of performance to the extent that such failure is due to causes arising out of its own negligence or due to removable or remediable causes which it fails to remove or remedy within a reasonable time period. Nothing contained herein shall be construed to require a Party to settle any strike or labor dispute in which it may be involved. Any Party rendered unable to fulfill any of its obligations by reason of an Uncontrollable Force shall give prompt notice of such fact and shall exercise due ATTACHMENT 1
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diligence, as provided above, to remove such inability within a reasonable time period. If oral notice is provided, it shall be promptly followed by written notice.
Where the entity providing transmission services for transactions under this Agreement and Confirmation interrupts such transmission service, the interruption in transmission service shall be considered an Uncontrollable Force under this Section 10 only in the following two sets of circumstances:
(1) An interruption in transmission service shall be considered an Uncontrollable Force if (a) the Parties agreed on a transmission path for that transaction in the Confirmation (b) firm transmission involving that transmission path was obtained pursuant to a transmission tariff or contract to effectuate the transaction under this Agreement and Confirmation, and (c) the entity providing transmission service curtailed or interrupted such firm transmission pursuant to the applicable transmission tariff or contract. There shall be no due diligence obligation associated with interruptions under this subparagraph (1). (2) If the Parties did not agree on the transmission path for a transaction in the Confirmation, an interruption in transmission service shall be considered an Uncontrollable Force only if (a) the Party contracting for transmission services shall have made arrangements with the entity providing transmission service for firm transmission to effectuate the transaction under the Agreement and Confirmation, (b) the entity providing transmission service curtailed or interrupted such transmission service, and (c) the Party which contracted for such firm transmission services could not obtain alternate energy at the delivery point, alternate ATTACHMENT 1
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transmission services, or alternate means of delivering energy after exercising due diligence.
No Party shall be relieved by operation of this Section 10 of any liability to pay for power delivered to the Purchaser or to make payments then due or which the Party is obligated to make with respect to performance which occurred prior to the Uncontrollable Force.
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11. WAIVERS:
Any waiver at any time by any Party of its rights with respect to a default under this Agreement or any Confirmation, or any other matter under this Agreement, shall not be deemed a waiver with respect to any subsequent default of the same or any other matter.
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12. NOTICES:
12.1 Except for the oral notice provided for in Section 10 of this Agreement, any formal notice, demand or request provided for in this Agreement shall be in writing and shall be deemed properly served, given or made if delivered in person, or sent by either registered or certified mail (postage prepaid), prepaid telegram, fax, or overnight delivery (with record of receipt).
12.2 Notices and requests of a routine nature applicable to delivery or receipt of capacity and/or energy shall be given in such manner as the Parties to a transaction shall prescribe in a Confirmation or otherwise; provided, however, if the Parties have not prescribed a method of providing such routine notices, then the procedures in Section 12.1 shall apply.
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13. EFFECT OF APPROVALS:
13.1 This Agreement and all Confirmations are subject to valid laws, orders, rules and regulations of duly constituted authorities having jurisdiction. Nothing contained in this Agreement or any Confirmation shall give FERC jurisdiction over those Parties not otherwise subject to such jurisdiction or be construed as a grant of jurisdiction over any Party by any state or federal agency not otherwise having jurisdiction by law.
13.2 Nothing in this Agreement or any Confirmation is intended to restrict the authority of the Bonneville Power Administration (BPA) pursuant to applicable statutory authority to use its existing wholesale power and transmission rates or to adopt new rates, rate schedules, or general rate schedule provisions for application under this Agreement and obtain interim or final approval of those rates from FERC pursuant to Section 7 of the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. Sec. 839e, provided such rates do not exceed the maximum rates in the applicable Service Schedule and are consistent with the terms and conditions of said Service Schedule.
13.3 Nothing contained in this Agreement or any Confirmation shall be construed to establish any precedent for any other agreement or to grant any rights to or impose any obligations on any Party beyond the scope and term of this Agreement or any Confirmation.
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14. TRANSFER OF INTEREST IN AGREEMENT:
No Party shall voluntarily transfer its membership in the WSPP under this Agreement without the written consent and approval of all other Parties except to a Successor in Operation of such Party. With regard to the transfer of the rights and obligations of any Party associated with transactions under this Agreement and Confirmation(s), neither Party to such transactions may assign such rights or obligations unless (a) the other Party provides its prior written consent which shall not be unreasonably withheld; or (b) the assignment is to a Successor in Operation which provides reasonable creditworthiness assurances (see Section 27 for examples of such assurances) if required by the non-assigning Party based upon its reasonably exercised discretion. Any successor or assignee of the rights of any Party, whether by voluntary transfer, judicial or foreclosure sale or otherwise, shall be subject to all the provisions and conditions of this Agreement and Confirmation(s) (where applicable) to the same extent as though such successor or assignee were the original Party under this Agreement or the Confirmation(s), and no assignment or transfer of any rights under this Agreement or any Confirmation(s) shall be effective unless and until the assignee or transferee agrees in writing to assume all of the obligations of the assignor or transferor and to be bound by all of the provisions and conditions of this Agreement and any Confirmation(s) (where applicable). The execution of a mortgage or trust deed or a judicial or foreclosure sale made thereunder shall not be deemed a voluntary transfer within the meaning of this Section 14.
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15. SEVERABILITY:
In the event that any of the terms, covenants or conditions of this Agreement or any Confirmation, or the application of any such term, covenant or condition, shall be held invalid as to any person or circumstance by any court, regulatory agency, or other regulatory body having jurisdiction, all other terms, covenants or conditions of this Agreement and the Confirmation and their application shall not be affected thereby, but shall remain in force and effect unless a court, regulatory agency, or other regulatory body holds that the provisions are not separable from all other provisions of this Agreement or such Confirmation(s).
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16. MEMBERSHIP:
16.1 Any Electric Utility, Retail Entity, Qualifying Facility, or Demand Response Entity may become a Party to this Agreement. The Executive Committee shall notify such Electric Utility, Retail Entity, Qualifying Facility, or Demand Response Entity of its decision within sixty (60) days of a request to become a Party to this Agreement, and any acceptable entity shall become a Party hereto by the execution of this Agreement or a counterpart hereof, payment of costs pursuant to Section 16.4, and concluding any necessary acceptance or approval referred to in Section 13. Any such Party, if it is subject to the ratemaking jurisdiction of FERC, shall be responsible for any FERC filing necessary for it to implement its performance under this Agreement.
16.2 Each Party shall continue to meet the requirements of Section 16.1 in order to remain a Party to this Agreement
16.3 Being a Party to this Agreement shall not serve as a substitute for contractual arrangements that may be needed between any Party which operates a Control Area and any other Party which operates within that Control Area.
16.4 Any entity that becomes a Party to this Agreement which was not a party to the experimental Western Systems Power Pool Agreement shall pay a one time fee of $25,000 under this Agreement in recognition of prior efforts and costs incurred by the parties to the experimental Western Systems Power Pool Agreement, which efforts greatly facilitated development of this Agreement. Such fee shall be credited to future costs of the WSPP incurred hereunder.
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16.5 In addition to requirements set forth elsewhere in this Agreement imposed on Parties as part of their membership in the WSPP, each Party shall abide by the following requirements:
16.5.1 Each Party shall maintain updated information regarding its Executive Committee and Operating Committee representatives on the WSPP Homepage and shall submit changes within a reasonable time period.
16.5.2 With regard to disputes involving transactions under this Agreement or other agreements, no Party shall seek to conduct discovery of the WSPP or issue or seek to obtain the issuance of any subpoena to the WSPP or WSPP officers acting in their capacities as officers of the WSPP or of the WSPP’s attorneys or consultants with regard to their work for the WSPP or their opinions regarding the construction or interpretation of any clause of the Agreement, provided that the foregoing prohibition shall not apply in proceedings brought against the WSPP. In the event a Party seeks to compel discovery or testimony in violation of this Section, that Party shall be deemed to have consented to the quashing of the subpoena or other process providing therefor. Notwithstanding any other provision in this Agreement, a Party that seeks to conduct discovery or issue or seek to obtain the issuance of any subpoena in breach of this provision shall compensate the WSPP and its officers, attorneys, and consultants, as applicable, for all out- of-pocket costs incurred.
16.6 An entity shall become a Party to this Agreement and a member of the WSPP upon satisfaction of the requirements in this Section 16 and on the date allowed by FERC ATTACHMENT 1
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if it is a FERC public utility or upon the date of satisfaction of the requirements in this Section 16 if it is not a FERC public utility.
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17. RELATIONSHIP OF PARTIES:
17.1 Nothing contained in this Agreement or in any Confirmation shall be construed to create an association, joint venture, trust, or partnership, or agency relationship between or among the Parties, or to impose a trust or partnership covenant, obligation, or liability on or with regard to any of the Parties. Each Party shall be individually responsible for its own covenants, obligations, and liabilities under this Agreement and under any applicable Confirmation.
17.2 All rights and obligations of the Parties under this Agreement are several and are not joint.
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18. NO DEDICATION OF FACILITIES:
Any undertaking by one Party to another Party under any provision of this Agreement shall not constitute the dedication of the electric system or any portion thereof of the undertaking Party to the public or to the other Party, and it is understood and agreed that any such undertaking under any provision of this Agreement by a Party shall cease upon the termination of such Party's obligations under this Agreement.
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19. NO RETAIL SERVICES:
Nothing contained in this Agreement shall grant any rights to or obligate any Party to provide any services hereunder directly to or for retail customers of any Party.
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20. THIRD PARTY BENEFICIARIES:
This Agreement shall not be construed to create rights, in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, obligation or undertaking established herein except as provided for in Section 14.
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21. LIABILITY AND DAMAGES:
21.1 This Agreement contains express remedies and measures of damages in Sections
21.3 and 22 for non-performance or default. This Agreement also contains additional remedies to enforce payment of monies due and to enforce terms of the Agreement and applicable Confirmations in Section 21.2.
ALL OTHER DAMAGES OR REMEDIES ARE HEREBY WAIVED.
Therefore, except as provided in Sections 21.3 and 22, no Party or its directors, members of its governing bodies, officers or employees shall be liable to any other Party or Parties for any loss or damage to property, loss of earnings, or revenues, personal injury, or any other direct, indirect, or consequential damages or injury, or punitive damages, which may occur or result from the performance or non- performance of this Agreement (including any applicable Confirmation), including any negligence arising hereunder. Any liability or damages incurred by an officer or employee of a Federal agency or by that agency that would result from the operation of this provision shall not be inconsistent with Federal law.
21.2 Any Party due monies under this Agreement, the amounts of which are not in dispute or if disputed have been the subject of a decision awarding monies, (i) shall have the right to seek payment of such monies in any forum having competent jurisdiction and (ii) shall possess the right to seek relief directly from that forum without first utilizing the mediation or arbitration provisions of this Agreement and without exercising termination and liquidation rights under Section 22.
In addition, each Party shall possess the right to seek specific performance (injunctive relief) of the non-delivery related terms of this Agreement and any ATTACHMENT 1
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Confirmation in any forum having competent jurisdiction. In seeking to enforce the terms of this Agreement, however, consistent with Section 21.1, no Party is entitled to receive or recover monetary damages except as provided in Sections 21.3 and 22.
21.3 The following damages provision shall apply to all transactions under this Agreement. For transactions under Service Schedule A, however, this damages provision or some other damages provision will apply only if such a damages provision is agreed to through a Confirmation. The damages under this Section
21.3 apply to a Party's failure to deliver or receive (or make available in the case of capacity) capacity and/or energy in violation of the terms of the Agreement and any Confirmation. The Contract Quantity and Contract Price referred to in this Section
21.3 are part of the agreement between the Parties for which damages are being calculated under this Section.
(a) If either Party fails to deliver or receive (or make available in the case of capacity), as the case may be, the quantities of capacity and/or energy due under the Agreement and any Confirmation (thereby becoming a "Non- Performing Party" for the purposes of this Section 21.3), the other party (the "Performing Party") shall be entitled to receive from the Non-Performing Party an amount calculated as follows (unless performance is excused by Uncontrollable Forces as provided in Section 10, the applicable Service Schedule, or by the Performing Party):
(1) If the amount the Purchaser scheduled or received in any hour is less than the applicable hourly Contract Quantity, then the Purchaser ATTACHMENT 1
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shall be liable for (a) the product of the amount (whether positive or negative), if any, by which the Contract Price differed from the Resale Price (Contract Price - Resale Price) and the amount by which the quantity provided to the Purchaser was less than the hourly Contract Quantity; plus (b) the amount of transmission charge(s), if any, for firm transmission service upstream of the delivery point, which the Seller incurred to achieve the Resale Price, less the reduction, if any, in transmission charge(s) achieved as a result of the reduction in the Purchaser's schedule or receipt of electric energy (based on Seller's reasonable commercial efforts to achieve such reduction). If the total amounts for all hours calculated under this paragraph (1) are negative, then neither the Purchaser nor the Seller shall pay any amount under this Section 21.3(a)(1). (2) If the amount the Seller scheduled or delivered (or made available in the case of capacity) in any hour is less than the applicable hourly Contract Quantity, then the Seller shall be liable for (a) the product of the amount (whether positive or negative), if any, by which the Replacement Price differed from the Contract Price (Replacement Price - Contract Price) and the amount by which the quantity provided by the Seller was less than the hourly Contract Quantity; plus (b) the amount of transmission charge(s), if any, for firm transmission service downstream of the delivery point, which the Purchaser incurred to achieve the Replacement Price, less the ATTACHMENT 1
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reduction, if any, in transmission charge(s) achieved as a result of the reduction in the Seller's schedule or delivery (based on Purchaser's reasonable commercial effort to achieve such reduction). If the total amounts for all hours calculated under this paragraph (2) are negative, then neither the Purchaser nor the Seller shall pay any amount under this Section 21.3(a)(2).
(3) The Non-Performing Party also shall reimburse the Performing Party for any charges imposed on the Performing Party under open access transmission or FERC accepted or approved tariffs for regional organizations due to the non-performance.
(4) The Non-Performing Party shall pay any amount due from it under this section within the billing period as specified in Section 9 of this Agreement or agreed to in the applicable Confirmation if the Parties agreed to revise the billing period in Section 9.
(5) In the event (a) two Parties entered into two or more Confirmations in which the same Party is the Purchaser and the other Party is the Seller, (b) deliveries under two or more of such Confirmations are to occur, in whole or in part, on the same date and hour, and at the same delivery point, and (c) as to such date, hour, and delivery point, and with respect to one or more of such Confirmations, a Party is a Non-Performing Party (for purposes of this Section 21.3(a)(5), each such instance of non-performance, a “non-performed transaction”), then, as set out in this Section 21.3(a)(5), each non-performed ATTACHMENT 1
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transaction shall be identified to a Confirmation, and the Contract Price of the Confirmation to which the non-performed transaction is identified, and the Contract Quantity of the non-performed transaction, shall be applied to the calculation of amounts due under Section 21.3(a)(1) through (3), as applicable.
The Parties in good faith shall seek to agree to the
identification of each non-performed transaction to a Confirmation.
Each non-performed transaction not identified to a
Confirmation by agreement, and any megawatt hours that are not fully accounted for by such identification, shall be identified to Confirmation(s) as follows:
(i) The Performing Party in good faith shall determine whether each Confirmation is real-time, day-ahead, or forward; all Confirmations that are not real-time or day-ahead shall be deemed forward Confirmations.
(ii) The Performing Party in good faith shall determine whether each non-performed transaction is real-time, day-ahead, or forward; all non-performed transactions that are not real-time or day-ahead shall be deemed forward non-performed transactions.
(iii) The Performing Party shall:
(x) identify real-time non-performed transactions to
real-time Confirmations, provided, that if the megawatt hours of real-time non-performed transactions exceed the
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megawatt hours of real-time Confirmations, then such excess megawatt hours shall be identified to day-ahead
Confirmations and any excess megawatt hours remaining
after such identification to day-ahead Confirmations shall be identified to forward Confirmations.
(y) identify day-ahead non-performed transactions to
day-ahead Confirmations, provided, that if the megawatt hours of day-ahead non-performed transactions exceed the megawatt hours of day-ahead Confirmations, then such
excess megawatt hours shall be identified to forward
Confirmations.
(z) identify all remaining non-performed transactions to forward Confirmations.
The Performing Party, in its billing for amounts due under Section
21.3(a)(1) through (3), shall set out a detailed explanation of each applicable determination under parts (i), (ii), and (iii) of this Section
21.3(a)(5), and state the resulting Contract Quantity and Contract Price, and any amounts associated with each such determination under Section 21.3(a)(3).
(b) The Parties agree that the amounts recoverable under this Section 21.3 are a reasonable estimate of loss and not a penalty, and represent the sole and exclusive remedy for the Performing Party. Such amounts are payable for the loss of bargain and the loss of protection against future risks.
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(c) Each Party agrees that it has a duty to mitigate damages in a commercially reasonable manner to minimize any damages it may incur as a result of the other Party's performance or non-performance of this Agreement. (d) In the event the Non-Performing Party disputes the calculation of the damages under this Section 21.3, the Non-Performing Party shall pay the full amount of the damages as required by Section 9 of this Agreement to the Performing Party. After informal dispute resolution as required by Section 34.1, any remaining dispute involving the calculation of the damages shall be referred to binding dispute resolution as provided by Section 34.2 of this Agreement. If resolution or agreement results in refunds or the need for refunds to the Non-Performing Party, such refunds shall be calculated in accordance with Section 9.4 of this Agreement. (e) In the event non-performance of a transaction is accounted for by means of a Damages Settlement Transaction and the Damages Settlement Transaction is performed, then no damages shall be calculated or due under § 21.3(a) with respect to the non-performed transaction. Neither Party shall be required to enter into a Damages Settlement Transaction.
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22. DEFAULT OF TRANSACTIONS UNDER THIS AGREEMENT AND
CONFIRMATIONS:
22.1 EVENTS OF DEFAULT
An "Event of Default" shall mean with respect to a Party ("Defaulting Party"):
(a) the failure by the Defaulting Party to make, when due, any payment required pursuant to this Agreement or Confirmation if such failure is not remedied within two (2) Business Days after written notice of such failure is given to the Defaulting Party by the other Party ("the Non-Defaulting Party"). The Non-Defaulting Party shall provide the notice by facsimile to the designated contact person for the Defaulting Party and also shall send the notice by overnight delivery to such contact person; or
(b) the failure by the Defaulting Party to provide clear and good title as required by Section 33.3, or to have made accurate representations and warranties as required by Section 37 and such failure is not cured within five (5) Business Days after written notice thereof to the Defaulting Party; or (c) The institution, with respect to the Defaulting Party, by the Defaulting Party or by another person or entity of a bankruptcy, reorganization, moratorium, liquidation or similar insolvency proceeding or other relief under any bankruptcy or insolvency law affecting creditor's rights or a petition is presented or instituted for its winding-up or liquidation; or (d) The failure by the Defaulting Party to provide adequate assurances of its ability to perform all of its outstanding material obligations to the Non- Defaulting Party under the Agreement or any Confirmation pursuant to ATTACHMENT 1
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Section 27 of this Agreement or any substitute or modified provision in any Confirmation.
(e) With respect to its Guarantor, if any:
(i) if a material representation or warranty made by a Guarantor in connection with this Agreement, or any transaction entered into hereunder, is false or misleading in any material respect when made or when deemed made or repeated; or
(ii) the failure of a Guarantor to make any payment required or to perform any other material covenant or obligation in any guarantee made in connection with this Agreement, including any transaction entered into hereunder, and such failure shall not be remedied within three (3) Business Days after written notice; or
(iii) the institution, with respect to the Guarantor, by the Guarantor or by another person or entity of a bankruptcy, reorganization, moratorium, liquidation or similar insolvency proceeding or other relief under any bankruptcy or insolvency law affecting creditor’s rights or a petition is presented or instituted for its winding-up or liquidation; or
(iv) the failure, without written consent of the other Party, of a Guarantor’s guarantee to be in full force and effect for purposes of this Agreement (other than in accordance with its terms) prior to the satisfaction of all obligations of such Party under each transaction to which such guarantee shall relate; or
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(v) a Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of, any guarantee.
22.2 REMEDIES FOR EVENTS OF DEFAULT
22.2(a) If an Event of Default shall have occurred and be continuing, the Non- Defaulting Party, upon written notice to the Defaulting Party, shall have the right (i) to suspend performance of transactions under this Agreement; provided, however, (i) in no event shall any such suspension continue for longer than ten (10) Business Days; (ii) such suspension must include all transactions under this Agreement in effect as of the date of the suspension between the Defaulting Party and the Non-Defaulting Party; and (iii) such suspension is available only once for each default. This ten (10) day suspension period shall not affect in any way the thirty (30) day period for exercising a right of termination under Section 22.2(b). The Non- Defaulting Party shall have the unilateral right to exercise its rights under this Agreement including its termination rights at any time within the suspension period. The Defaulting Party shall have no suspension rights.
In no event shall the suspension continue beyond the cure of or waiver by the Non-Defaulting Party of the applicable Event of Default. If the Non- Defaulting Party seeks to terminate the suspension period such that the suspension shall be terminated prior to the end of the ten (10) Business Day period specified above, it may do so only by providing at least twenty-four (24) hours written notice to the Defaulting Party before the suspension may be terminated.
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22.2(b) If an Event of Default occurs, the Non-Defaulting Party shall possess the right to terminate all transactions between the Parties under this Agreement upon written notice (by facsimile or other reasonable means) to the Defaulting Party, such notice of termination to be effective immediately upon receipt. If the Non-Defaulting Party fails to exercise this right of termination within thirty (30) days following the time when the Event of Default becomes known (or more than thirty days if the Non-Defaulting and Defaulting Parties agree to an extension), then such right of termination shall no longer be available to the Non-Defaulting Party as a remedy for the Event(s) of Default; provided, however, this thirty day requirement for exercising termination rights shall not apply to defaults pursuant to Sections
22.1(c) and 22.1(e)(iii). The Non-Defaulting Party terminating transaction(s) under this Section 22.2 may do so without making a filing at FERC.
If the Non-Defaulting Party elects to terminate under this Section, it shall be required to terminate all transactions between the Parties under the Agreement at the same time. Upon termination, the Non-Defaulting Party shall liquidate all transactions as soon as practicable, provided that in no event will the Non-Defaulting Party be allowed to liquidate Service Schedule A transactions. The payment associated with termination ("Termination Payment") shall be calculated in accordance with this Section
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transaction ("Terminated Transaction") for the time period beginning at the time notice of termination under this Section 22 is received. Prior to receipt of such notice of termination by the Defaulting Party, the Non-Defaulting Party may exercise any remedies available to it under Section 21.3 of this Agreement or Confirmation(s), and any other remedies available to it at law or otherwise.
Upon termination, the Non-Defaulting Party may withhold any payments it owes the Defaulting Party for any obligations incurred prior to termination under this Agreement or Confirmation(s) until the Defaulting Party pays the Termination Payment to the Non-Defaulting Party. The Non-Defaulting Party shall possess the right to set-off the amount due it under this Section 22 by any such payments due the Defaulting Party as provided in Section 22.3(d).
22.3 LIQUIDATION CALCULATION OPTIONS
The Non-Defaulting Party shall calculate the Termination Payment as follows:
(a) The Gains and Losses shall be determined by comparing the value of the remaining term, transaction quantities, and transaction prices under each Terminated Transaction had it not been terminated to the equivalent quantities and relevant market prices for the remaining term either quoted by a bona fide third-party offer or which are reasonably expected to be available in the market under a replacement contract for each Terminated Transaction. To ascertain the market prices of a replacement contract, the Non-Defaulting Party may consider, among other valuations, quotations ATTACHMENT 1
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from Dealers in energy contracts, any or all of the settlement prices of the NYMEX power futures contracts (or NYMEX power options contracts in the case of Physically-Settled Options) and other bona fide third party offers, all adjusted for the length of the remaining term and differences in transmission. It is expressly agreed that the Non-Defaulting Party shall not be required to enter into replacement transactions in order to determine the Termination Payment.
(b) The Gains and Losses calculated under paragraph (a) shall be discounted to present value using the Present Value Rate as of the time of termination (to take account to the period between the time notice of termination was effective and when such amount would have otherwise been due pursuant to the relevant transaction). The "Present Value Rate" shall mean 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 matches the average remaining term of the Terminated Transactions; and (c) The Non-Defaulting Party shall set off or aggregate, as appropriate, the Gains and Losses (as calculated in Section 22.3(a)) and Costs and notify the Defaulting Party. If the Non-Defaulting Party's aggregate Losses and Costs exceed its aggregate Gains, the Defaulting Party shall, within three (3) Business Days of receipt of such notice, pay the Termination Payment to ATTACHMENT 1
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the Non-Defaulting Party, which amount shall bear interest at the Present Value rate from the time notice of termination was received until paid. If the Non-Defaulting Party's aggregate Gains exceed its aggregate Losses and Costs, the Non-Defaulting Party, after any set-off as provided in paragraph (d), shall pay the remaining amount to the Defaulting Party within three (3) Business Days of the date notice of termination was received including interest at the Present Value from the time notice of termination was received until the Defaulting Party receives payment.
(d) The Non-Defaulting Party shall aggregate or set off, as appropriate, at its election, any or all other amounts owing between the Parties (discounted at the Present Value Rate) under this Agreement and any Confirmation against the Termination Payment so that all such amounts are aggregated and/or netted to a single liquidated amount. The net amount due from any such liquidation shall be paid within three (3) Business Days following the date notice of termination is received.
(e) (i) If the Non-Defaulting Party owes the Defaulting Party monies under this Section 22.3, then notwithstanding the three Business Day payment requirement detailed above, the Non-Defaulting Party may elect to pay the Defaulting Party the monies owed under this Section
22.3 over the remaining life of the contract(s) being terminated. The Non-Defaulting Party may make this election by providing written notice to the Defaulting Party within three Business Days of the notice being provided to terminate and liquidate under this Section ATTACHMENT 1
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22.3. The Non-Defaulting Party shall provide the Defaulting Party with the details on the method for recovering the monies owed over the remaining life of the contract(s). That method shall ensure that the Defaulting Party receives a payment each month through the end of the term of each contract which allows it to receive the monies which would have been due it under Sections 22.3(c) and (d) in total (to be recovered over the term of the contract(s) to replicate as closely as possible the payment streams under such contract(s)) provided that the discounting using the Present Value Rate referenced in Section 22.3 (b) shall not be reflected in determining the amounts to be recovered under this provision. Any disputes as to the methodology shall be resolved pursuant to the dispute resolution procedures in Section 34, with binding arbitration pursuant to Section 34.2 required for disputes as to the methodology if mediation is unsuccessful.
(ii) This Section 22.3(e) and the rights and obligations under it shall survive termination of any applicable transactions or agreements. (iii) The Party owed monies under this Section 22.3(e) shall have the right to request credit assurances consistent with Section 27 even after termination of any contract or transaction.
(iv) If the Party owing money defaults on its payment obligations consistent with Section 22.1(a) or defaults with regard to providing credit assurances consistent with Section 22.1(d), then the other ATTACHMENT 1
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Party shall have the right (by written notice) at any time after the Party owing money defaults to require that Party to pay all monies owed under all of the contracts subject to this Section 22.3(e) within three Business Days of receipt of the written notice. The monies to be paid under this accelerated payment provision shall be the remaining amounts to be paid under the contract(s) reflecting a discount using the Present Value Rate from the date of the written notice.
(f) If the Defaulting Party disagrees with the calculation of the Termination Payment and the Parties cannot otherwise resolve their differences, the calculation issue shall be submitted to informal dispute resolution as provided in Section 34.1 of this Agreement and thereafter binding dispute resolution pursuant to Section 34.2 if the informal dispute resolution does not succeed in resolving the dispute. Pending resolution of the dispute, the Defaulting Party shall pay the full amount of the Termination Payment calculated by the Non-Defaulting Party within three (3) Business Days (except if the option under 22.3(e) has been invoked in which case the payment times in that provision would apply) of receipt of notice as set forth in Sections 22.3(c) and (d) subject to the Non-Defaulting Party refunding, with interest, pursuant to Section 9.4, any amounts determined to have been overpaid.
(g) For purposes of this Section 22.3:
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(i) "Gains" means the economic benefit (exclusive of Costs), if any, resulting from the termination of the Terminated Transactions, determined in a commercially reasonable manner as calculated in accordance with this Section 22.3;
(ii) "Losses" means the economic loss (exclusive of Costs), if any, resulting from the termination of the Terminated Transactions, determined in a commercially reasonable manner as calculated in accordance with this Section 22.3;
(iii) "Costs" means brokerage fees, commissions and other similar transaction costs and expenses reasonably incurred in terminating any specifically related arrangements which replace a Terminated Transaction, transmission and ancillary service costs associated with Terminated Transactions, and reasonable attorneys' fees, if any, incurred in connection with the Non-Defaulting Party enforcing its rights with regard to the Terminated Transactions. The Non- Defaulting Party shall use reasonable efforts to mitigate or eliminate these Costs.
(iv) In no event, however, shall a Party's Gains, Losses or Costs include any penalties or similar charges imposed by the Non-Defaulting Party.
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22A. DEFAULT IN PAYMENT OF WSPP OPERATING COSTS:
22A.1 A Party shall be deemed to be in default in payment of its share of WSPP operating costs pursuant to Section 7 of this Agreement, if any, when payment is not received within ten (10) days after receipt of written notice. A default by any Party in such payment obligations shall be cured by payment of all overdue amounts together with interest accrued at the rate of one percent (1%) per month, or the maximum interest rate permitted by law, if any, whichever is less, prorated by days from the due date to the date the payment curing the default is made unless and until the Executive Committee shall determine another rate.
22A.2 A defaulting Party, which is in default under Section 22.A1, shall be liable for all costs, including costs of collection and reasonable attorney fees, plus interest as provided in Section 22.A1 hereof.
22A.3 The rights under this Agreement of a Party which is in default of its obligation to pay operating costs under this Agreement for a period of three (3) months or more may be revoked by a vote of the non-defaulting Parties' representatives on the Executive Committee consistent with Section 8.3. The defaulting Party's rights shall not be revoked, however, unless said Party has received at least thirty (30) days written notice of the non-defaulting Parties' intent to revoke such rights. Said notice shall state the date on which the revocation of rights shall become effective if the default is not cured and shall state all actions which must be taken or amounts which must be paid to cure the default. This provision allowing the non-defaulting Parties to revoke such rights is in addition to any other remedies provided in this Agreement or at law and shall in no way limit the non-defaulting Parties' ability to ATTACHMENT 1
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seek judicial enforcement of the defaulting Party's obligations to pay its share of the operating costs under this Agreement. Upon the effective date of such revocation of rights, the defaulting party shall not be allowed to enter into any new transactions under this Agreement. The defaulting party under the Agreement and Confirmation(s) shall be required to carry out all obligations that existed prior to the effective date of such revocation. If a defaulting Party's rights under this Agreement have been revoked, the Executive Committee may restore that Party's rights upon the defaulting Party paying all amounts due and owing under this Agreement.
22A.4 Upon revocation of the rights of a defaulting Party under this Agreement, costs of the WSPP hereunder shall be equally shared among the remaining Parties. Cost allocation adjustments shall be retroactive to the date of the default.
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23. OTHER AGREEMENTS:
No provision of this Agreement shall preclude any Party from entering into other agreements or conducting transactions under existing agreements with other Parties or third parties. This Agreement shall not be deemed to modify or change any rights or obligations under any prior contracts or agreements between or among any of the Parties.
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24. GOVERNING LAW:
This Agreement and any Confirmation shall be governed by and construed in accordance with the laws of the State of Utah, without regard to the conflicts of laws rules thereof. The foregoing notwithstanding, (1) if both the Seller and Purchaser are organized under the laws of Canada, then the laws of the province of the Seller shall govern, or (2) if the Seller or Purchaser is an agency of or part of the United States Government, then the laws of the United States of America shall govern.
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25. JUDGMENTS AND DETERMINATIONS:
Whenever it is provided in this Agreement that a Party shall be the sole judge of whether, to what extent, or under what conditions it will provide a given service, its exercise of its judgment shall be final and not subject to challenge. Whenever it is provided that (i) a service under a given transaction may be curtailed under certain conditions or circumstances, the existence of which are determined by or in the judgment of a Party, or (ii) the existence of qualifications for membership shall be determined by the Executive Committee pursuant to Section 16, that Party's or the Executive Committee's determination or exercise of judgment shall be final and not subject to challenge if it is made in good faith and not made arbitrarily or capriciously.
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26. COMPLETE AGREEMENT:
This Agreement and the Confirmation(s), shall constitute the full and complete agreement of the Parties with respect to a transaction, except as provided under Section
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27. CREDITWORTHINESS:
Should a Party's creditworthiness, financial responsibility, or performance viability become unsatisfactory to the other Party in such other Party's reasonably exercised discretion with regard to any transaction pursuant to this Agreement and any Confirmation, the dissatisfied Party (the "First Party") may require the other Party (the "Second Party") to provide, at the Second Party's option (but subject to the First Party's acceptance based upon reasonably exercised discretion), either (1) the posting of a Letter of Credit, (2) a cash prepayment, (3) the posting of other acceptable collateral or security by the Second Party, (4) a Guarantee Agreement executed by a creditworthy entity; or (5) some other mutually agreeable method of satisfying the First Party. The Second Party’s obligations under this Section 27 shall be limited to a reasonable estimate of the damages to the First Party (consistent with Section 22.3 of this Agreement) if the Second Party were to fail to perform its obligations. Events which may trigger the First Party questioning the Second Party's creditworthiness, financial responsibility, or performance viability include, but are not limited to, the following:
(1) The First Party has knowledge that the Second Party (or its Guarantor if applicable) are failing to perform or defaulting under other contracts. (2) The Second Party has exceeded any credit or trading limit set out in any Confirmation or other agreement between the Parties.
(3) The Second Party or its Guarantor has debt which is rated as investment grade and that debt falls below the investment grade rating by at least one rating agency or is below investment grade and the rating of that debt is downgraded further by at least one rating agency.
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(4) Other material adverse changes in the Second Party's financial condition occur. (5) Substantial changes in market prices which materially and adversely impact the Second Party's ability to perform under this Agreement or any Confirmation occur.
If the Second Party fails to provide such reasonably satisfactory assurances of its ability to perform a transaction hereunder within three (3) Business Days of demand therefore, that will be considered an Event of Default under Section 22 of this Agreement and the First Party shall have the right to exercise any of the remedies provided for under that Section 22. Nothing contained in this Section 27 shall affect any credit agreement or arrangement, if any, between the Parties.
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28. NETTING:
28.1 Parties shall net payments (associated with transactions under this Agreement and Confirmation(s)) in accordance with Exhibit A, if such Parties have executed the form attached as Exhibit A. The Parties’ obligations to net shall include the netting of all payments received by the Parties in the same calendar month. Parties that have executed Exhibit A shall provide a signed copy of Exhibit A to a representative of the WSPP and to any Party that requests a copy and indicate on the WSPP Homepage that they have executed Exhibit A. If a Party indicated its election to net payments on the WSPP Homepage and that Party desires to withdraw its agreement to net, that Party shall provide at least 30 days notice on the WSPP Homepage of the change in its election to net and also shall provide, concurrent with its withdrawal notice, written notice to all Parties with which it has ongoing transactions or with which it has committed to future transactions under the Agreement at the time of the notice. Any such changes in netting status shall apply beginning at least 30 days after notice required by this Section 28.2 is provided and only shall apply to transactions agreed to beginning on or after the date the change in netting status becomes effective.
28.2 The Parties may by separate agreement either through a Confirmation or some other agreement set out specific terms relating to the implementation of the netting in addition to or in lieu of Exhibit A.
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has or may be entitled to arising from or out of this Agreement and any applicable Confirmation.
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29. TAXES:
The Contract Price for all transactions under this Agreement shall include full reimbursement for, and the Seller is liable for and shall pay, or cause to be paid, or reimburse the Purchaser for if the Purchaser has paid, all taxes applicable to a transaction that arise prior to the delivery point. If the Purchaser is required to remit such tax, the amount shall be deducted from any sums due to the Seller. The Seller shall indemnify, defend, and hold harmless the Purchaser from any claims for such taxes. The Contract Price does not include reimbursement for, and the Purchaser is liable for and shall pay, cause to be paid, or reimburse the Seller for if the Seller has paid, all taxes applicable to a transaction arising at and from the delivery point, including any taxes imposed or collected by a taxing authority with jurisdiction over the Purchaser. The Purchaser shall indemnify, defend, and hold harmless the Seller from any claims for such taxes. Either Party, upon written request of the other Party, shall provide a certificate of exemption or other reasonably satisfactory evidence of exemption if either Party is exempt from taxes, and shall use reasonable efforts to obtain and cooperate with the other Party in obtaining any exemption from or reduction of any tax. Taxes are any amounts imposed by a taxing authority associated with the transaction.
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30. CONFIDENTIALITY:
30.1 The terms of any transaction under this Agreement or any other information exchanged by the Purchaser and Seller relating to the transaction shall not be disclosed to any person not employed or retained by the Purchaser or the Seller or their affiliates, except to the extent disclosure is (1) required by law, (2) reasonably deemed by the disclosing Party to be required to be disclosed in connection with a dispute between or among the Parties, or the defense of any litigation or dispute, (3) otherwise permitted by consent of the other Party, which consent shall not be unreasonably withheld, (4) required to be made in connection with regulatory proceedings (including proceedings relating to FERC, the United States Securities and Exchange Commission or any other federal, state or provincial regulatory agency); (5) required to comply with North American Electric Reliability Organization, regional reliability council, or successor organization requirements; (6) necessary to obtain transmission service; or (7) to a developer of an index of electric power prices in accordance with Section 30.2. In the event disclosure is made pursuant to this provision, the Parties shall use reasonable efforts to minimize the scope of any disclosure and have the recipients maintain the confidentiality of any documents or confidential information covered by this provision, including, if appropriate, seeking a protective order or similar mechanism in connection with any disclosure. This provision shall not apply to any information that was or is hereafter in the public domain (except as a result of a breach of this provision).
30.2 A Party may disclose the terms of transactions under this Agreement, excluding the identities of parties, to any developer of any index of electric power prices without ATTACHMENT 1
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violation of the confidentiality obligations under Section 30.1 if: (1) the disclosing Party and the index developer have entered into a written agreement, prior to the disclosure, under which the developer has agreed to use the information solely for the development of an index of electric power prices for publication and not for any other purpose; and (2) the index with respect to which disclosure is made is an aggregation of terms of transactions and does not identify terms of single transactions or the identities of parties to transactions.
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31. TRANSMISSION TARIFF:
Pursuant to FERC Order No. 888, issued on April 24, 1996, and FERC orders where applicable, the WSPP Default Transmission Tariff has been filed and has become effective.
The Parties agree to be bound by the terms of that Tariff for so long as they are WSPP members.
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32. TRANSACTION SPECIFIC TERMS AND ORAL AGREEMENTS:
32.1 General
32.1.1 A Confirmation shall include, at a minimum, the Standard Confirmation Provisions. (See Exhibit C for a sample). Subject to the limitations in Section 32.2 (Standard Confirmation Provisions) and Section 32.3 (Non- Standard Confirmation Provisions), the Confirmation shall be made in writing by a Documentary Writing or an Electronic Writing, or shall be an Electronic Platform Confirmation.
32.1.2 Pursuant to the provisions of this Section 32, the Parties to a transaction under this Agreement may agree to modify any term of this Agreement (other than provisions regarding the operation of the WSPP as an organization including Sections 7 and 8) which applies to such transaction, such agreement to be stated in a Confirmation or Confirmations.
32.1.3 Sections 32.2 and 32.3 shall not apply to an Electronic Platform Confirmation. Parties may amend an Electronic Platform Confirmation in accordance with the procedures, if any, of the applicable platform or exchange or in any other manner this Agreement permits. Each Electronic Platform Confirmation between WSPP members shall be subject to this Agreement, unless the transaction specified in the Electronic Platform Confirmation is subject to another agreement between the Parties other than a master Confirmation applicable to the Parties’ WSPP Confirmations.
32.2 Process For Confirming Standard Confirmation Provisions.
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32.2.1 Confirmation of Standard Confirmation Provisions For Transactions of Less Than One Week in Duration.
Confirmation for Standard Confirmation Provisions applicable to transactions of less than one week in duration may be through:
(i) a Documentary Writing (including a Confirmation which is not executed by both Parties but which is binding under Section 32.2.3) or
(ii) an Electronic Writing.
Notwithstanding the foregoing sentence, with respect to a transaction of less than one week in duration as agreed in an Electronic Writing and that is to commence within one week of that agreement, a subsequent proposed confirming Documentary Writing under Section 32.2.3 shall not vary the terms of the Electronic Writing unless the Documentary Writing is executed by both Parties.
32.2.2 Standard Confirmation Provisions For Transactions of One Week or More in Duration.
Written confirmation shall be required for all Standard Confirmation Provisions for transactions of one week or more in duration. Such written confirmation may be made by a Documentary Writing executed by both Parties or a Documentary Writing not executed by both Parties but which is binding under Section 32.2.3.
32.2.3 Written Confirmation Process for Standard Confirmation Provisions.
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The Seller shall provide a proposed Documentary Writing containing the proposed Standard Confirmation Provisions which must be received by the Purchaser within five Business Days of the date of the agreement to the transaction. The Purchaser shall have five Business Days from date of receipt to accept or propose modifications to the proposed Documentary Writing. If the Purchaser does not respond within that time period, the Seller’s proposed Documentary Writing shall be considered as accepted and shall be the final Confirmation. If the Seller fails to provide a proposed Documentary Writing within the five Business Days period, then, within the immediately subsequent five Business Days, the Purchaser may submit a proposed Documentary Writing to the Seller. The Seller shall then have five Business Days from date of receipt to accept or propose modifications to the proposed Documentary Writing. If the Seller does not respond within that time period, the Purchaser’s proposed Documentary Writing shall be considered as accepted and shall be the final Confirmation.
32.3 Process for Confirming Non-Standard Confirmation Provisions.
32.3.1 Non-Standard Confirmation Provisions for Transactions of Less Than One Week in Duration. Confirmation for Non-Standard Confirmation Provisions for a transaction of less than one week in duration only may be through: (i) an Electronic Writing; or (ii) in a Documentary Writing executed by both Parties.
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Provisions for transactions of one week or more only shall be through a Documentary Writing executed by both Parties.
32.3.3 WSPP Agreement is a Default Agreement.
If the Parties to a transaction (i) do not reach agreement on any proposed Non-Standard Confirmation Provision and (ii) do not confirm it under Section 32.3.1 or 32.3.2, as applicable, then the term or terms of the Agreement, which the Parties could not reach agreement to modify or change or which are not considered modified pursuant to this Section 32.3, shall apply to the transaction.
32.4 Prior Discussions And Statements
32.4.1 A Confirmation under Section 32.2 and/or 32.3, shall, together with this Agreement, be an integrated contract with respect to the transaction, shall supersede all discussions and negotiations with respect thereto, and are intended by the Parties as a final expression of their agreement with respect to such terms as are included therein and may not be contradicted by evidence of any prior agreement unless there is clear and convincing evidence of a mutual mistake in the Confirmation.
32.4.2 Notwithstanding any provision in this Agreement (including Sections
32.3.2 and 32.4.1), until the Confirmation has become final in accordance with Sections 32.2 and/or 32.3 for a transaction, any oral agreement or electronic communication establishing agreement of the Parties relating to such transaction shall remain valid and binding.
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32.5 The Parties agree not to contest, or assert any defense with respect to, the validity or enforceability of any agreement to the terms concerning a specific transaction, on the basis that documentation of such terms fails to comply with the requirements of any statute that agreements be written or signed. Each Party consents to the recording by the other Party, without any further notice, of telephone conversations between representatives of the Parties, which contain agreements to or discussion concerning the terms of a specific transaction. All such recordings may be introduced and admitted into evidence for the purpose of proving agreements to terms, and any objection to such introduction or admission for such purpose is hereby expressly waived.
32.6 In the event of a conflict between a binding and effective Confirmation and this Agreement, the Confirmation shall govern.
32.7 The Seller shall not be required to file any Confirmation with FERC except as provided in the Service Schedules.
32.8 Other Products and Service Levels: The Parties may apply this Agreement and make a Confirmation with respect to a product/service level defined under any other document or form of agreement (e.g., the California ISO tariff, the ERCOT agreement or the EEI agreement). The confirmation process set forth in Section
32.3 shall apply to any such Confirmation. Unless the Parties expressly state and agree that all the terms and conditions of such other agreement will apply to any such transaction consistent with Section 32.3, the transaction shall be subject to all the terms of this Agreement, except that (1) all service level/product definitions, (2) force majeure/uncontrollable force definitions, and (3) other terms as mutually ATTACHMENT 1
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agreed shall have the meaning ascribed to them in the different agreement or in the applicable Confirmation.
32.9 Reserved.
32.10 The Parties may agree to modify terms of this Agreement for more than one transaction pursuant to a separate written agreement (a “master confirmation agreement”), which agreement shall be considered part of each Confirmation between the Parties and shall apply to all transactions entered into between the two Parties unless the Parties specifically agree to override such changes for a particular transaction consistent with the procedure in Section 32.2 or 32.3, whichever is applicable.
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33. PERFORMANCE, TITLE, AND WARRANTIES FOR TRANSACTIONS UNDER SERVICE SCHEDULES:
33.1 Performance
33.1.1 The Seller shall deliver to the delivery point(s) as agreed to in the applicable Confirmation and sell to the Purchaser in accordance with the terms of the Agreement and such Confirmation.
33.1.2 The Purchaser shall receive and purchase the Contract Quantity, as agreed to by the Parties in the applicable Confirmation, at the delivery point(s) and purchase from the Seller in accordance with the terms of the Agreement and such Confirmation.
33.2 Title and Risk of Loss
Title to and risk of loss of the electric energy shall pass from the Seller to the Purchaser at the delivery point agreed to in the Confirmation; provided, however, with regard to federal agencies or parts of the United States Government, title to and risk of loss shall pass to Purchaser to the extent permitted by and consistent with applicable law.
33.3 Warranties
The Seller warrants that it will transfer to the Purchaser good title to the electric energy sold under the Agreement and any Confirmation, free and clear of all liens, claims, and encumbrances arising or attaching prior to the delivery point and that Seller's sale is in compliance with all applicable laws and regulations.
THE SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES,
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EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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34. DISPUTE RESOLUTION:
34.1 INFORMAL DISPUTE RESOLUTION
Before binding dispute resolution or any other form of litigation may proceed, any dispute between the Parties to a transaction under this Agreement first shall be referred to nonbinding mediation except for actions taken pursuant to Section 21.2. The Parties shall attempt to agree upon a mediator from a list of ten (10) candidates provided by the Chairman of the WSPP Operating Committee or his or her designee. If the Parties are unable to agree, then the Chairman or the designee shall appoint a mediator for the dispute. Neither the mediator nor the person involved on behalf of the WSPP in developing a list of mediators for the Parties to choose from or in selecting the mediator (if the Parties are unable to do so) shall possess a direct or indirect interest in either Party or the subject matter of the mediation. The WSPP shall establish procedures for the appointment of mediators and the conduct of mediation and those procedures shall apply to the mediation.
34.2 BINDING DISPUTE RESOLUTION
The Parties to a dispute may elect binding dispute resolution using the following process unless binding arbitration of certain disputes is required under this Agreement in which event the Parties shall use the process set forth in this Section 34.2 to resolve such disputes, unless the Parties otherwise agree:
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resolution under WSPP procedures by notifying the Chairman of the WSPP Operating Committee or his or her designee. The Chairman or his or her designee shall provide the Parties with a list of ten (10) eligible arbitrators.
Within ten (10) days of receiving the list, the Parties shall agree on a single arbitrator from the list to conduct the arbitration, or notify the Chairman of the Operating Committee or the designee of their inability to reach agreement. If notified of the Parties inability to reach agreement, then the Chairman or the designee shall choose the arbitrator from the list within five (5) days. Neither the arbitrator nor the person involved on behalf of the WSPP in developing a list of arbitrators for the Parties to choose from or in selecting the arbitrator (if the Parties are unable to do so) shall possess a direct or indirect interest in either Party or the subject matter of the arbitration. The Procedures to be used for this arbitration shall follow the arbitration procedures which shall be developed and maintained by the WSPP and the procedures will be generally consistent with the commercial arbitration rules of the American Arbitration Association though not involving the Association.
If the Parties agree to binding dispute resolution under this Section 34.2, each Party understands that it will not be able to bring a lawsuit concerning any dispute that may arise which is covered by this arbitration provision.
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or common law to challenge an arbitration award or to prevent any action to enforce any arbitration award.
A Party's liability and damages under any arbitration award resulting from the process set forth in this Section 34.2 shall be limited as provided in this Agreement or in any Confirmation.
34.3 COSTS
Each Party shall be responsible for its own costs and those of its counsel and representatives. The Parties shall equally divide the costs of the arbitrator or mediator and the hearing.
34.4 CONFIDENTIALITY
Any arbitration or mediation under this Section 34 shall be conducted on a confidential basis and not disclosed, including any documents or results which shall be considered confidential, unless the Parties otherwise agree or such disclosure is required by law.
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35. FORWARD CONTRACTS:
The Parties acknowledge and agree that all transactions under the Agreement and Confirmation(s) are forward contracts and that the Parties are forward contract merchants, as those terms are used in the United States Bankruptcy Code. The Parties acknowledge and agree that all of their transactions, together with this Agreement and the related Confirmation(s) form a single, integrated agreement, and agreements and transactions are entered into in reliance on the fact that the agreements and each transaction form a single agreement between the Parties.
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36. TRADE OPTION EXEMPTION
The Parties intend that any Physically Settled Option under this Agreement shall qualify under the trade option exemption, 17 C.F.R. § 32.3. Accordingly, each Party buying or selling a Physically Settled Option agrees and warrants that any such option shall be offered only to a provider, user, or merchant and that the entities entering into the options are doing so solely for purposes related to their business.
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37. ADDITIONAL REPRESENTATIONS AND WARRANTIES:
Each Party warrants and represents to the other(s) that it possesses the necessary corporate, governmental and legal authority, right and power to enter into and agree to the applicable Confirmation for a transaction or transactions and to perform each and every duty imposed, and that the Parties' agreement to buy and sell power under this Agreement and the Confirmation represents a contract. Each Party also warrants and represents to the other(s) that each of its representatives executing or agreeing through a Confirmation to a transaction under this Agreement is authorized to act on its behalf.
Each Party further warrants and represents that entering into this Agreement and any applicable Confirmation does not violate or conflict with its Charter, By-laws or comparable constituent document, any law applicable to it, any order or judgment of any court or other agency of government applicable to it or any agreement to which it is a party and that this Agreement and applicable Confirmation, constitute a legal, valid and binding obligation enforceable against such Party in accordance with the terms of such agreements.
Each Party also represents that it is solvent and that on each delivery this representation shall be deemed renewed unless notice to the contrary is given in writing by the Purchaser to the Seller before delivery.
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38. FLOATING PRICES:
38.1 In the event the Parties intend that the price for a transaction is to be based on an index, exchange or any other kind of variable reference price (such price being a “Floating Price”), the Parties shall specify the “Floating Price” to be used to calculate the amounts in a Confirmation due Seller for that transaction.
38.2 Market Disruption. If a Market Disruption Event has occurred and is continuing during the Determination Period, the Floating Price for the affected Trading Day shall be determined as follows. The Parties shall negotiate in good faith to agree on a Floating Price (or a method for determining a Floating Price) for the affected Trading Day. If the Parties have not so agreed on or before the twelfth Business Day following the first Trading Day on which the Market Disruption Event occurred or existed, then the Floating Price shall be determined in good faith by the Parties based upon (1) quotes from Dealers in energy contracts; and/or (2) quotes from Brokers in energy contracts. Each Party may obtain up to a maximum of four quotes which must be provided to the other Party no later than twenty-two Business Days following the first Business Day on which the Market Disruption Event occurred or existed. These quotes shall reflect transacted prices. The Floating Price for the affected Trading Day shall equal a simple average of the quotes obtained and provided by the Parties consistent with the provisions of this Section 38. Each Party providing quote(s) to the other Party also shall identify to that other Party the Dealer(s) and/or the Broker(s) who provided each of the quotes to allow verification.
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“Determination Period” means each calendar month during the term of the relevant transaction; provided that if the term of the transaction is less than one calendar month the Determination Period shall be the term of the transaction. “Market Disruption Event” means, with respect to an index, any of the following events (the existence of which shall be determined in good faith by the Parties): (a) the failure of the index to announce or publish information necessary for determining the Floating Price; (b) the failure of trading to commence or the permanent discontinuation or material suspension of trading in the relevant options contract or commodity on the exchange or market acting as the index; (c) the temporary or permanent discontinuance or unavailability of the index; (d) the temporary or permanent closing of any exchange acting as the index; or (e) a material change in the formula for or the method of determining the Floating Price. “Trading Day” means a day in respect of which the relevant price source published the relevant price or would have published the relevant price but for the Market Disruption Event.
38.3 Calculation of Floating Price. For the purposes of the calculation of a Floating Price, all numbers shall be rounded to three (3) decimal places. If the fourth (4th) decimal number is five (5) or greater, then the third (3rd) decimal number shall be increased by one (1), and if the fourth (4th) decimal number is less than five (5), then the third (3rd) decimal number shall remain unchanged.
38.4 Corrections. For the purposes of determining the relevant prices for any day, if the price published or announced on a given day and used or to be used to determine the relevant price is subsequently corrected and the correction is published or announced by the person responsible for that publication or announcement, either ATTACHMENT 1
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Party may notify the other Party of (i) that correction and (ii) the amount (if any) that is payable as a result of that correction. If a Party gives notice that an amount is so payable, the Party that originally either received or retained such amount will pay such amount consistent with the provisions of this Section 38.4. The amount that is payable as a result of the correction shall be included in the billing cycle in which the notice of the correction is provided.
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39. AMENDMENT:
39.1 This Agreement may be amended upon the submission to FERC and acceptance by FERC of that amendment. The effective date of the amendment shall be the date on which FERC allows the amendment to become effective; provided, however, if the FERC orders a hearing on a filing under Section 205 of the Federal Power Act proposing an amendment to this Agreement, the amendment as it may be revised by the FERC shall not become effective until the FERC issues its final order (i.e. its order on rehearing before any judicial review) on the amendment. The Parties through the Executive Committee shall direct the filing of any amendments. The Parties to this Agreement agree to bound by this Agreement as it may be amended, provided that the Parties possess the right to challenge any amendments at FERC and to exercise any applicable withdrawal rights under this Agreement.
39.2 Unless otherwise stated in the amendment, all amendments shall apply only to new transactions entered into or agreed to on or after the effective date of the amendment. Preexisting agreements and transactions shall operate under the version of the WSPP Agreement effective at the time of the agreement for the transaction unless the Parties to a transaction or transactions mutually agree otherwise.
39.3 An agreement modifying this Agreement or a Confirmation for a transaction needs no consideration to be binding.
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40. EXECUTION BY COUNTERPARTS:
This Agreement may be executed in any number of counterparts, and upon execution by all Parties, each executed counterpart shall have the same force and effect as an original instrument and as if all Parties had signed the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon, and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more signature pages.
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41. WITNESS:
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representative as of the 27th day of July, 1991 (or as of the date of execution of this Agreement by each Party's duly authorized representation, in the case of any Party that becomes a signatory to this Agreement subsequent to July 27, 1991).
By:________________________________
Name of signing official:
Title:
Name of Member:
Date:
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EXHIBIT A
NETTING
Each Party that executes this Exhibit A to the Agreement agrees to net payments for transactions under the WSPP Agreement and the applicable Confirmation(s) with any other Party or Parties which also have agreed to net payments by executing a copy of this Exhibit A. The Party executing this Exhibit A shall indicate below when it desires that its agreement to net becomes effective. A Party agreeing to net under this Exhibit A shall comply with the provisions of Section 28.2 of the Agreement. Defined terms used herein are as defined in the WSPP Agreement. Netting shall be done in accordance with the following provision:
If the Purchaser and Seller are each required to pay an amount on the payment due date in the same month for transactions under the Agreement and Confirmation(s), then such amounts with respect to each Party will be aggregated and the Parties will discharge their obligations to pay through netting, in which case the Party owing the greater aggregate amount will pay to the other party the difference between the amounts owed consistent with the payment times in Section 9.2 of the Agreement, unless the Parties have otherwise agreed to a different payment time as allowed by the Agreement. Each Party reserves to itself all rights, set-offs, counterclaims and other remedies and/or defenses to which it is or may be entitled, arising from or out of the Agreement. All outstanding payments between the Parties which are to be netted pursuant to this Exhibit A for transactions under WSPP Agreement and the applicable Confirmation(s) shall be offset against each other or set off or recouped therefrom.
__________________________________ __________________________ Name of Authorized Representative Effective Date for Netting __________________________________
Name of WSPP Member
__________________________________ __________________________ Signature of Authorized Date of Execution
Representative
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[WSPP SAMPLE FORM – PARTIES ARE FREE TO USE THIS OR DISREGARD IT.]
EXHIBIT B
FORM OF COUNTERPARTY GUARANTEE AGREEMENT
This Guarantee Agreement (this “Guarantee”), dated, as of [__________], 199[__], is made and entered into by [_____________], a [__________] corporation (“Guarantor”).
WITNESSETH:
WHEREAS, [___________________] (the “Company”) may enter into transactions involving power sales under the WSPP Agreement (“WSPP Agreement”) and related Confirmation(s)
1 (collectively “Agreements”) with [Company Name] (“Guaranteed Party”); and
WHEREAS, Guarantor will directly or indirectly benefit from the Agreements.
NOW THEREFORE, in consideration of the Guaranteed Party agreeing to conduct business with Company, Guarantor hereby covenants and agrees as follows:
1. GUARANTY. Subject to the provisions hereof, Guarantor hereby irrevocably and unconditionally guarantees the timely payment when due of the obligations of Company (the “Obligations”) to the Guaranteed Party in accordance with the Agreements. If Company fails to pay any Obligations, Guarantor shall promptly pay to the Guaranteed Party no later than the next Business Day (as defined in the WSPP Agreement), after notification, the amount due in the same currency and manner provided for in the Agreements. This Guarantee shall constitute a guarantee of payment and not of collection. Guarantor shall have no right of subrogation with respect to any payments it makes under this Guarantee until all of the Obligations of Company to the Guaranteed Party are paid in full. The liability of Guarantor under the Guarantee shall be subject to the following:
(a) Guarantor’s liability hereunder shall be and is specifically limited to payments expressly required to be made in accordance with the Agreements (even if such payments are deemed to be damages) and, except to the extent specifically provided in the Agreements, in no event shall Guarantor be subject hereunder to consequential, exemplary, equitable, loss of profits, punitive, tort, or any other even if such fees together with the payments exceed the cap in Section 1(b), damages, costs, except that Guarantor shall be required to pay reasonable attorney fees.
(b) The aggregate liability of the Guarantor shall not exceed [_____] Million U.S. Dollars [___________].
2. DEMANDS AND NOTICE. If Company fails or refuses to pay any Obligations, the Guaranteed Party may make a demand upon Guarantor (hereinafter referred to as a “Payment
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Demand”). A Payment Demand shall be in writing and shall reasonably and briefly specify in what manner and what amount Company has failed to pay and an explanation of why such payment is due, with a specific statement that the Guaranteed Party is calling upon Guarantor to pay under this Guarantee. A Payment Demand satisfying the foregoing requirements shall be deemed sufficient notice to Guarantor that it must pay the Obligations. A single written Payment Demand shall be effective as to any specific default during the continuance of such default, until Company or Guarantor has cured such default, and additional Payment Demands concerning such default shall not be required until such default is cured.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that:
(a) it is a corporation duly organized and validly existing under the laws of the State of [_____________] and has the corporate power and authority to execute, deliver and carry out the terms and provisions of this Guarantee;
(b) no authorization, approval, consent or order of, or registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the execution and delivery of this Guarantee; and
(c) this Guarantee constitutes a valid and legally binding agreement of Guarantor enforceable against Guarantor in accordance with its terms, except as the enforceability of this Guarantee may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity.
4. EFFECT OF BANKRUPTCY BY COMPANY. The Guarantor’s obligation to pay under this Guarantee shall not be affected in any way by the institution with respect to the Company of a bankruptcy, reorganization, moratorium or similar insolvency proceeding or other relief under any bankruptcy or insolvency law affecting creditor’s rights or a petition for the Company’s winding-up or liquidation.
5. AMENDMENT. No term or provision of this Guarantee shall be amended, modified, altered, waived, or supplemented except in a writing signed by the Guarantor and Guaranteed Party hereto.
6. WAIVERS. Guarantor hereby waives (a) notice of acceptance of this Guarantee; (b) presentment and demand concerning the liabilities of Guarantor, except as expressly hereinabove set forth; and (c) any right to require that any action or proceeding be brought against Company or any other person, or except as expressly hereinabove set forth, to require that the Guaranteed Party seek enforcement of any performance against Company or any other person, prior to any action against Guarantor under the terms hereof.
Except as to applicable statutes of limitation, no delay of the Guaranteed Party in the exercise of, or failure to exercise, any rights hereunder shall operate as a waiver of such rights, a waiver of any other rights or a release of Guarantor from any obligations hereunder.
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Guarantor consents to the renewal, compromise, extension, acceleration or other changes in the time of payment of or other changes in the terms of the Obligations, or any part thereof or any changes or modifications to the terms of the Agreements.
Guarantor may terminate this Guarantee by providing written notice of such termination to the Guaranteed Party and upon the effectiveness of such termination, Guarantor shall have no further liability hereunder, except as provided in the last sentence of this paragraph. No such termination shall be effective until fifteen (15) Business Days after receipt by the Guaranteed Party of such termination notice. No such termination shall affect Guarantor’s liability with respect to any obligations arising under any transaction entered into prior to the time the termination is effective, which transaction shall remain guaranteed pursuant to the terms of this Guarantee.
7. ASSIGNMENT. The Guarantor shall not assign this Guarantee without the express written consent of the Guaranteed Party. The Guaranteed Party shall be entitled to assign its rights under this Agreement in its sole discretion.
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8. NOTICE. Any Payment Demand, to the Guaranteed Party or the Guarantor notice, request, instruction, correspondence or other document to be given hereunder by any party to another (herein collectively called “Notice”) shall be in writing and delivered personally or mailed by certified mail, postage prepaid and return receipt requested, or by telegram or telecopier, as follows:
To [Name of Guaranteed Party] ____________________________ ____________________________
____________________________
Attn: _______________________
Fax No.: (___) ________________
To Guarantor: ____________________________
____________________________
____________________________
Attn: _______________________
Fax No.: (___) ________________
Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by telegram or telecopier shall be effective upon actual receipt if received during the recipient’s normal business hours, or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. All Notices by telegram or telecopier shall be confirmed promptly after transmission in writing by certified mail or personal delivery. Any party may change any address to which Notice is to be given to it by giving notice as provided above of such change of address.
8. MISCELLANEOUS. THIS GUARANTEE SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [State], WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. This Guarantee shall be binding upon Guarantor, its successors and assigns and inure to the benefit of and be enforceable by the Guaranteed Party, its successors and assigns. The Guarantee embodies the entire agreement and understanding between Guarantor and the Guaranteed Party and supersedes all prior agreements and understandings relating to the subject matter hereof. The headings in this Guarantee are for purposes of reference only, and shall not affect the meaning hereof. This Guarantee may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
EXECUTED as of the day and year first above written.
[___________________________]
By: ________________________
Name: ______________________
Title: _______________________
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EXHIBIT C
SAMPLE FORM FOR CONFIRMATION
1. Transaction Specific Agreements
The undersigned Parties agree to sell and purchase electric energy, or a Physically- Settled Option, pursuant to the WSPP Agreement as it is supplemented and modified below:
(a) Seller: __________________________________
(b) Purchaser: __________________________________
(c) Period of Delivery: From __\__\__ To __\__\__
(d) Schedule (Days and Hours): __________________
(e) Delivery Rate:________________________________
(f) Delivery Point(s): __________________________
(g) Type of Service (Check as Applicable)
Service Schedule A _________
Service Schedule B _________
Service Schedule C _________
Physically-Settled Option Service Schedule B ______
Physically-Settled Option Service Schedule C ______
Other products per Section 32.6 _________________ [Describe Product] (h) Contract Quantity: ________ Total MWhrs.
(i) Contract or Strike Price: _____________________
(j) Transmission Path for the Transaction (If Applicable):
(k) Date of Agreement if different: _____________
(l) Additional Information for Physically-Settled Options (i) Option Type: Put __________ Call______________
(ii) Option Style: __________
(iii) Exercise Date or Period: __________
(iv) Premium: __________
(v) Premium Payment Date: _________
(vi) Method for providing notice of exercise ________________________ (m) Special Terms and Exceptions:
See Attachment A
[Special Terms and Exceptions shall be shown on an Attachment to this Confirmation.]
___________________________ ___________________________ Name of Trader for Purchaser Name of Trader for Seller
___________________________ ___________________________ Authorized Signature Authorized Signature
for Purchaser for Seller
ATTACHMENT 1
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___________________________ ___________________________ Date Date
ATTACHMENT 1
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EXHIBIT D
WSPP MEDIATION AND ARBITRATION PROCEDURES
I. MEDIATION
A. Informal Mediation. WSPP members with a dispute or a potential dispute involving transactions under the WSPP Agreement may request non-binding, informal mediation by contacting the WSPP’s General Counsel and by providing a brief explanation in writing of the dispute and the remedy being sought. All parties to the dispute must request this Informal Mediation for it to become effective. After this contact, a telephonic conference call will be arranged among the affected WSPP members and the WSPP’s General Counsel, the Chairman of the Operating Committee, and/or some other independent and knowledgeable person requested by the Chairman of the Operating Committee to participate. The purpose of the conference call will be to discuss the issues and to have an independent person or persons state their views. Best efforts will be made to set up this conference call within five Business Days after the WSPP’s General Counsel is contacted subject to accommodating the schedules of all involved. This Informal Mediation shall be considered as satisfying the Mediation requirements of Section 34.1 of the WSPP Agreement.
B. Initiating Formal Mediation. A WSPP member which believes that it possesses a claim against another WSPP member relating to a WSPP transaction, which is unable to resolve the dispute through agreement with the other member to the transaction, and which desires to pursue that claim shall initiate non-binding formal mediation pursuant to Section 34.1 of the WSPP Agreement. The member ATTACHMENT 1
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initiating such mediation shall do so by Serving written notice to the Chairman of the WSPP Operating Committee, the WSPP’s General Counsel, and the other members against which the claim is directed. Such notice shall state the nature of the dispute, the remedy sought, and support the claim.
C. Response to Document Initiating Formal Mediation. Within eight days, the member or members against which the claim is directed may provide a response to the notice which shall be Served on the member which initiated the Mediation, the Chairman of the WSPP’s Operating Committee, and the WSPP’s General Counsel.
D. Choosing the Mediator. The Mediator shall be chosen in accordance with the procedures set forth in Section 34.1 of the WSPP Agreement. Each Party may suggest persons to be included on the list of Mediators to be presented to the Parties provided that these suggested persons shall be provided to the WSPP Representative together with relevant personal histories within two Business Days of the date by which time the list of Mediators is to be sent out. The WSPP Representative shall allow at least one person suggested by each Party to be added to the list of Mediators. A brief personal history of each person on the list of potential mediators shall be provided to the Parties, with that history showing the person’s employment over the last five years and any other relevant facts. The WSPP Representative shall provide the Parties with the list of Mediators within five days of receipt of notice of the dispute. The Parties then shall have five days in which to reach agreement on a Mediator or inform the WSPP Representative that they were unable to reach agreement in which event the WSPP Representative shall appoint the Mediator consistent with Section 34.1 of the WSPP Agreement. Upon ATTACHMENT 1
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request of the Parties for expedition, the WSPP Representative shall use best efforts to expedite this process.
E. Location for the Formal Mediation. The Parties shall agree on a location for the Mediation. If the Parties fail to reach agreement, then the WSPP Representative shall set the location which shall be convenient for the Parties and the Mediator.
F. Time for the Formal Mediation. The Parties shall agree on the time for the Mediation after consultation with the Mediator if one has been appointed. If the Parties fail to reach agreement, then the WSPP Representative shall set the time which shall not be more than twenty-one days after the notice initiating the Mediation is received after consultation with the Parties and any Mediator.
G. Conduct of the Formal Mediation. The Mediator shall have the ability to conduct the Mediation in any manner which the Mediator believes is appropriate to facilitate resolution of the dispute. Each Party shall have at least one representative with the authority to settle the dispute present at the Mediation. The Mediation shall be private and confidential and the Mediator shall have the authority to exclude any person not directly involved unless the Parties agree otherwise in writing. At the Mediation, each Party shall have the right to make a brief presentation of its case and to question the other Party. Each Party also may be represented by counsel.
H. Replacement of the Mediator. If the Mediator resigns, withdraws or is no longer able to serve, then the Parties shall have two Business Days in which to agree on a new Mediator. If the Parties are unable to agree within such time, the WSPP Representative shall appoint a replacement Mediator from the list used to select the first Mediator within two Business Days after being notified that the Parties are ATTACHMENT 1
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unable to agree. The dates and deadlines in this section may require modification if the mediator is replaced. Any extensions shall be as limited as possible.
II. ARBITRATION
A. Initiating Arbitration. A WSPP member which initiates Arbitration pursuant to Section 34.2 of the WSPP Agreement shall do so by Serving the Chairman of the WSPP Operating Committee, the WSPP General Counsel and the members against which the claim is directed with written notice of its demand for arbitration. Such notice shall state the nature of the dispute, the remedy sought, and support the claim.
B. Response. Within ten days of receipt of the notice, any member or members against which the claim is directed may provide a response to the notice. Such response must include any counterclaims which the member believes are appropriate. If a counterclaim is submitted, then the member which submitted the notice may respond to the counterclaim within ten days of receipt. All such responses shall be Served on the Parties, the Chairman of the WSPP Operating Committee, and the WSPP General Counsel.
C. Choosing the Arbitrator. The Arbitrator shall be chosen in accordance with the procedures set forth in Section 34.2 of the WSPP Agreement. Each Party may suggest persons to be included on the list of Arbitrators to be presented to the Parties provided that these suggested persons are provided to the WSPP Representative together with relevant personal histories within two business days of the date by which time the list of Arbitrators is to be sent out. The WSPP Representative shall allow at least one person suggested by each Party to be added to the list of potential Arbitrators. A brief personal history of each person on the list of potential ATTACHMENT 1
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Arbitrators shall be provided to the Parties, with that history showing the person’s employment over the last five years and any other relevant facts. The WSPP Representative shall provide the Parties with the list of Arbitrators within seven days of receipt of notice of the request for Arbitration. The Parties then shall have ten days in which to reach agreement on the Arbitrator or to inform the WSPP Representative that they were unable to reach agreement in which event the WSPP Representative shall appoint the Arbitrator consistent with Section 34.2 of the Agreement. Upon request of the Parties for expedition, the WSPP Representative shall use best efforts to cause this process to be expedited.
D. Location for the Arbitration. The Parties shall agree on a location for the Arbitration. If the Parties fail to reach agreement, then the WSPP Representative shall set the location which shall be convenient for the Parties and the Arbitrator.
E. Time for the Arbitration. The Parties shall agree on the time for the Arbitration and coordinate that time with the Arbitrator if one has been agreed to or appointed.
If the Parties fail to reach agreement, then the WSPP Representative shall set the time which shall not be more than 60 days after the notice is received. The WSPP Representative shall set a time after consultation with the Parties and the Arbitrator to check their schedules.
F. Discovery. After appointment of the Arbitrator, each Party shall be entitled to obtain relevant documents from the other Parties and to take depositions. Each Party shall respond to such a document request within seven days of receipt of the request and make its employees or consultants available for depositions to the extent that the employee or consultant possesses knowledge and information ATTACHMENT 1
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relevant to the dispute. Each Party shall disclose documents that are confidential or commercially sensitive subject to a reasonable protective order. Any disputes concerning discovery shall be promptly referred to the Arbitrator who shall have authority to resolve such disputes, including the authority to require attendance of witnesses at depositions. The Federal Rules of Civil Procedure shall apply to discovery under these procedures.
G. Conduct of Arbitration if the Parties Agree to Waive an Oral Hearing. If the Parties agree to waive an oral hearing, then the Parties shall Serve Initial Briefs no later than 35 days after the notice is received or notify the Arbitrator that they do not wish to submit any additional documents. Parties shall Serve any Reply Briefs no later than ten days after the date for Service of Initial Briefs.
H. Conduct of the Arbitration Hearing. No later than fifteen days before any hearing, any Party may Serve an Initial Brief or notify the Arbitrator that they do not wish to submit any additional documents. A Party shall Serve any Reply Brief no later than five Business Days before any hearing. The Arbitrator shall preside over any hearing and rule on all objections including objections as to the admissibility of evidence or whether the questioning is proper. All testimony shall be submitted under oath. The Arbitrator is not bound to follow any particular rules governing the conduct of the proceeding. The Arbitrator may rely on legal advice provided through the WSPP. The Arbitrator may require any person employed by a Party to attend and testify at the hearing. Each Party shall possess the right to present evidence, including witnesses, and to cross-examine other Parties’ witnesses. The Arbitration shall be private and the Arbitrator shall have the ATTACHMENT 1
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authority to exclude any person not directly involved unless the Parties otherwise agree. Each Party may be represented by counsel. A stenographic record of the Arbitration shall be kept.
I. Decision. Within ten Business Days after the end of the Arbitration hearing, the Arbitrator shall issue his award in writing. If the Parties waived the right to an oral hearing, then the Arbitrator shall issue the award within ten Business Days of the last date Briefs were to be submitted. The Arbitrator is not limited in the remedies he may order so long as any arbitration award is consistent with the provisions and limitations of the WSPP Agreement and any applicable Confirmation with respect to the liability and damages of any Party; provided, however, upon agreement of the Parties to the dispute, the Arbitrator’s choice of remedies may be limited.
J. Replacement of the Arbitrator. If the Arbitrator resigns, withdraws, or is no longer able to serve then the Parties shall have two Business Days in which to agree on a new Arbitrator. If the Parties are unable to agree within such time, the WSPP Representative shall appoint a replacement Arbitrator from the list used to select the first Arbitrator within two Business Days after being notified that the Parties are unable to agree. The dates and deadlines in this section may require modification if the mediator is replaced. Any extensions shall be as limited as possible.
III. MISCELLANEOUS
A. Confidentiality. Any Arbitration or Mediation shall be confidential as provided in Section 34.4 of the WSPP Agreement.
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B. Costs. Costs shall be borne by Parties as provided in Section 34.3 of the WSPP Agreement.
C. Restrictions on Lawsuits. Each Party shall be subject to the restrictions provided in Section 34.2 of the WSPP Agreement.
D. Attorney-Client/Attorney Workproduct. The Arbitrator or Mediator shall not take any action which would result in disclosure of information in violation of the attorney-client privilege or attorney workproduct doctrine.
IV. DEFINITIONS
A. Arbitrator or Arbitration. The Arbitrator appointed pursuant to these procedures and Section 34.2 of the WSPP Agreement and the Arbitration pursuant to these procedures and the WSPP Agreement.
B. Initial or Reply Briefs. Written documents submitted by the Parties to support their positions and respond to each others positions. Such documents shall be limited to 25 pages.
C. Business Days. Defined as in the WSPP Agreement.
D. Mediator or Mediation. The Mediator appointed pursuant to these procedures and Section 34.1 of the WSPP Agreement and the Mediation pursuant to these procedures and the WSPP Agreement.
E. Parties. The WSPP members involved in the Mediation or Arbitration which have a direct interest in the dispute.
F. Service, Serving, or Served. The method of service shall be by fax, unless impracticable because of the size of the document. In all events, the document should be delivered to the Party by overnight mail. Parties also should attempt to ATTACHMENT 1
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send the document out by email if possible. Service will be accomplished to a Party if sent to the Party’s contact person for the disputed transaction. If there are multiple contact persons for one Party, service to one such person shall suffice.
Service shall be to those individuals or entities specified in this procedures, but must include service to the Parties, the Mediator or Arbitrator (if either has been appointed), and to the WSPP General Counsel.
G. WSPP Representative. The Chairman of the WSPP Operating Committee or his or her designee for the purposes of the Arbitration or Mediation.
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SERVICE SCHEDULE A
ECONOMY ENERGY SERVICE
A-1 PARTIES:
This Service Schedule is agreed upon as a part of this Agreement by the Parties.
A-2 PURPOSE:
The purpose of this Service Schedule is to define additional specific procedures, terms and conditions for requesting and providing Economy Energy Service.
A-3 TERMS:
A-3.1 A Party may schedule Economy Energy Service from another Party by mutual agreement; provided, however, that each Party shall be the sole judge as to the extent to and the conditions under which it is willing to provide or receive such service hereunder consistent with statutory requirements and contractual commitments including the Agreement and any applicable Confirmation.
A-3.2 Scheduling of Economy Energy Service hereunder shall be a responsibility of the Parties involved.
A-3.3 Each Seller/Purchaser may prepare a daily estimate of the amount of Economy Energy Service that it is willing and able to sell/buy each hour and the associated hourly sale/purchase price for the next Business Day, plus the weekend and holidays, and communicate this information to all other Parties via the Hub.
A-3.4 Purchasers shall arrange purchases directly with Sellers, and shall be responsible for transmission arrangements.
A-3.5 Unless otherwise mutually agreed between the Purchaser and the Seller, all Economy Energy Service transactions shall be pre-scheduled, and billings shall be based on ATTACHMENT 1
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amounts and prices agreed to in advance by schedulers, subject to Paragraphs A-3.6 and 3.7 and subject to change by mutual agreement between dispatchers or schedulers due to system changes.
A-3.6 The price for Economy Energy Service shall be mutually agreed to in advance between Seller and Purchaser and shall not be subject to the rate caps specified in Section A-3.7 in either of the following two circumstances:
(1) where the Seller is a FERC regulated public utility and that Seller has been authorized to sell power like that provided for under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility" as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e).
A-3.7 Except as provided for in Section A-3.6, the price shall not exceed the Seller's forecasted Incremental Cost plus up to: $7.32/kW/ month; $1.68/kW/week;
33.78¢/kW/day; 14.07 mills/kWh; or 21.11 mills/kWh for service of sixteen (16) hours or less per day. The hourly rate is capped at the Seller's forecasted Incremental Cost plus 33.78¢/kW/ day. The total demand charge revenues in any consecutive seven-day period shall not exceed the product of the weekly rate and the highest demand experienced on any day in the seven-day period. In lieu of payment, such Parties may mutually agree to exchange economy energy at a ratio not to exceed that ratio provided for in Section C-3.6 of Service Schedule C. The Seller's forecasted Incremental Cost discussed above also may include any transmission and/or ancillary service costs associated with the sale, including the cost of any transmission and/or ATTACHMENT 1
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ancillary services that the Seller must take on its own system. Any such transmission and/or ancillary services charges shall be separately identified by the Seller to the Purchaser for transactions under this Schedule including the exchange of economy energy. The transmission and ancillary service rate ceilings shall be available through the WSPP's Hub or homepage. Any such transmission services (and ancillary service provided in conjunction with such transmission service) by Seller shall be provided pursuant to any applicable transmission tariff or agreement, and the rates therefore shall be consistent with such tariff or agreement. The foregoing hourly rate caps (i) are subject to the submission of cost justification by the applicable Seller to the FERC, and acceptance by FERC thereof, under Western Systems Power Pool, 122 FERC ¶ 61,139 (2008), or (ii) are inapplicable, in the event that the Seller has filed with FERC, and FERC has accepted, a rate schedule applicable solely to such Seller, which rate schedule has been, upon the request of the applicable Seller, incorporated into this Agreement at Schedule “Q” hereof (such incorporation to occur upon Seller’s request without approval of the WSPP Executive Committee).
A-3.8 Unless otherwise agreed, the Purchaser shall be responsible for maintaining operating reserve requirements as back-up for Economy Energy Service purchased and the Seller shall not be required to maintain such operating reserve.
A-3.9 Each Party that is a FERC regulated public utility as defined in A-3.6 shall file the Confirmation with FERC for each transaction under this Service Schedule with a term in excess of one year no later than 30 days after service begins if that Party would have been required to file such Confirmation or similar agreements with FERC under an applicable FERC accepted market based rate schedule.
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SERVICE SCHEDULE B
UNIT COMMITMENT SERVICE
B-1 PARTIES:
This Service Schedule is agreed upon as part of this Agreement by the Parties.
B-2 PURPOSE:
The purpose of this Service Schedule is to define additional specific procedures, terms, and conditions for requesting and providing Unit Commitment Service.
B-3 TERMS:
B-3.1 A Party may schedule Unit Commitment Service from another Party by mutual agreement; provided, however, that each Party shall be the sole judge as to the extent to and the conditions under which it is willing to provide or receive such service hereunder consistent with statutory requirements and contractual commitments including the Agreement and any applicable Confirmation. Once an agreement is reached, then the obligation for Unit Commitment Service becomes a firm commitment, for both Parties, for the agreed capacity and terms.
B-3.2 Unless otherwise mutually agreed by the Parties involved in a Unit Commitment Service transaction, the terms set forth in this Service Schedule B shall govern such transaction.
B-3.3 Unless otherwise agreed between the Purchaser and the Seller, all transactions shall be prescheduled, subject to any conditions agreed to by schedulers, for a specified unit for a specified period of time.
B-3.4 Purchasers shall arrange purchases directly with Sellers.
B-3.5 The price for Unit Commitment Service shall be mutually agreed to in advance between Seller and Purchaser and shall not be subject to the rate caps specified in ATTACHMENT 1
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Section B-3.6 in either of the following two circumstances:
(1) where the Seller is a FERC regulated public utility and that Seller has been authorized to sell power like that provided for under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility" as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e).
B-3.6 Except as provided for in Section B-3.5, the price shall not exceed the Seller's forecasted Incremental Cost plus up to: $7.32/kW/month; $1.68/kW/week;
33.78¢/kW/day; 14.07 mills/kWh; or 21.11 mills/kWh for service of sixteen (16) hours or less per day. The hourly rate is capped at the Seller's forecasted Incremental Cost plus 33.78¢/kW/day. The total demand charge revenues in any consecutive seven-day period shall not exceed the product of the weekly rate and the highest demand experienced on any day in the seven-day period. The Seller's forecasted Incremental Cost discussed above also may include any transmission and/or ancillary service costs associated with the sale, including the cost of any transmission and/or ancillary services that the Seller must take on its own system. Any such transmission and/or ancillary service charges shall be separately identified by the Seller to the Purchaser. The transmission and ancillary service rate ceilings shall be available through the WSPP's Hub or homepage. The foregoing hourly rate caps (i) are subject to the submission of cost justification by the applicable Seller to the FERC, and acceptance by FERC thereof, under Western Systems Power Pool, 122 FERC ¶ 61,139 (2008), or (ii) are inapplicable, in the event that the Seller has filed with FERC, ATTACHMENT 1
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and FERC has accepted, a rate schedule applicable solely to such Seller, which rate schedule has been, upon the request of the applicable Seller, incorporated into this Agreement at Schedule “Q” hereof (such incorporation to occur upon Seller’s request without approval of the WSPP Executive Committee).
B-3.7 Start-up costs and no-load costs if included by the Seller shall be stated separately in the price.
B-3.8 Energy schedules for the Purchaser's share of a unit may be modified by the Purchaser with not less than a thirty (30) minute notice before the hour in which the change is to take place, unless otherwise mutually agreed or unforeseen system operating conditions occur.
B-3.9 Unit Commitment Service is intended to have assured availability; however, scheduled energy deliveries may be interrupted or curtailed as follows:
(a) By the Seller by giving proper recall notice to the Purchaser if the Seller and the Purchaser have mutually agreed to recall provisions, (b) By the Seller when all or a portion of the output of the unit is unavailable, by an amount in proportion to the amount of the reduction in the output of the unit, unless otherwise agreed by the schedulers,
(c) By the Seller to prevent system separation during an emergency, provided the Seller has exercised all prudent operating alternatives prior to the interruption or curtailment,
(d) Where applicable, by the Seller to meet its public utility or statutory obligations to its customers, or
(e) By either the Seller or the Purchaser due to the unavailability of transmission ATTACHMENT 1
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capacity necessary for the delivery of scheduled energy.
B-3.10 Each Party that is a FERC regulated public utility as defined above in B-3.5 shall file the Confirmation with FERC for each transaction under this Service Schedule with a term in excess of one year no later than 30 days after service begins if that Party would have been required to file such Confirmation or similar agreements with FERC under an applicable FERC accepted market based rate schedule.
B-4 BILLING AND PAYMENT PROVISIONS:
B-4.1 Except as provided in Sections B-4.2 and B-5, billing for Unit Commitment Service shall be computed based upon the agreed upon prices.
B-4.2 In the event the Seller requests recall of Unit Commitment Service in a shorter time frame than was mutually agreed pursuant to Section B-3.9(a) and the Purchaser agrees to allow such recall, the Purchaser shall be relieved of any obligation to pay start-up costs.
B-5 TERMINATION PROVISION:
In the event Unit Commitment Service is curtailed or interrupted except as provided in Section B-3.9(a), the Purchaser shall have the option to cancel the Unit Commitment Service at any time by paying the Seller for (i) all energy deliveries scheduled up to the notice of termination and (ii) all separately stated start-up and no-load costs.
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SERVICE SCHEDULE C
FIRM CAPACITY/ENERGY SALE OR EXCHANGE SERVICE
C-1 PARTIES:
This Service Schedule is agreed upon as a part of this Agreement by the Parties.
C-2 PURPOSE:
The purpose of this Service Schedule is to define additional specific procedures, terms, and conditions for requesting and providing Firm Capacity/Energy Sale or Exchange Service.
C-3 TERMS:
C-3.1 A Party may schedule Firm Capacity/Energy Sale or Exchange Service from another Party by mutual agreement; provided, however, that each Party shall be the sole judge as to the extent to and the conditions under which it is willing to provide or receive such service hereunder consistent with statutory requirements and contractual commitments including the Agreement and any applicable Confirmation. Once an agreement is reached, then the obligation for Firm Capacity/Energy Sale or Exchange Service becomes a firm commitment, for both Parties, for the agreed service and terms.
C-3.2 Unless otherwise agreed between the Purchaser and the Seller, all transactions shall be prescheduled, subject to any conditions agreed to by schedulers.
C-3.3 Firm capacity transactions shall include buying, selling, or exchanging capacity between Parties with or without associated energy. A firm capacity sale or exchange is a commitment, in accordance with the terms and conditions specified in the Confirmation, of capacity resources.
C-3.4 Firm energy transactions shall include buying, selling, or exchanging firm energy ATTACHMENT 1
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between Parties in accordance with the terms and conditions specified in the Confirmation.
C-3.5 The price for Firm Capacity/Energy Sale or Exchange Service shall be mutually agreed to in advance between Seller and Purchaser and shall not be subject to the rate caps specified in Section C-3.6 in either of the following two circumstances:
(1) where the Seller is a FERC regulated public utility and that Seller has been authorized to sell power like that provided for under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility" as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e).
C-3.6 Except as provided for in Section C-3.5, the price shall not exceed the Seller's forecasted Incremental Cost plus up to: $7.32/kW/month; $1.68/kW/week;
33.78¢/kW/day; 14.07 mills/kWh; or 21.11 mills/kWh for service of sixteen (16) hours or less per day. The hourly rate is capped at the Seller's forecasted Incremental Cost plus 33.78¢/kW/day. The total demand charge revenues in any consecutive seven-day period shall not exceed the product of the weekly rate and the highest demand experienced on any day in the seven-day period. Exchange ratios among such Parties shall be as mutually agreed between the Purchaser and the Seller, but shall not exceed the ratio of 1.5 to 1.0. The Seller's forecasted Incremental Cost discussed above also may include any transmission and/or ancillary service costs associated with the sale, including the cost of any transmission and/or ancillary services that the Seller must take on its own system. Any such transmission and/or ancillary service charges ATTACHMENT 1
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shall be separately identified by the Seller to the Purchaser for transactions under this Schedule including exchanges. The transmission and ancillary service rate ceiling shall be available through the WSPP's Hub or homepage. Any such transmission service (and ancillary services provided in conjunction with such transmission service) by Seller shall be provided pursuant to any applicable transmission tariff or agreement, and the rates therefore shall be consistent with such tariff or agreement.
The foregoing hourly rate caps (i) are subject to the submission of cost justification by the applicable Seller to the FERC, and acceptance by FERC thereof, under Western Systems Power Pool, 122 FERC ¶ 61,139 (2008), or (ii) are inapplicable, in the event that the Seller has filed with FERC, and FERC has accepted, a rate schedule applicable solely to such Seller, which rate schedule has been, upon the request of the applicable Seller, incorporated into this Agreement at Schedule “Q” hereof (such incorporation to occur upon Seller’s request without approval of the WSPP Executive Committee).
C-3.7 Firm Capacity/Energy Sale or Exchange Service shall be interruptible only if the interruption is: (a) within any recall time or allowed by other applicable provisions governing interruptions of service under this Service Schedule, as may be mutually agreed to by the Seller and the Purchaser, (b) due to an Uncontrollable Force as provided in Section 10 of this Agreement; or (c) where applicable, to meet Seller’s public utility or statutory obligations to its customers; provided, however, this paragraph (c) shall not be used to allow interruptions for reasons other than reliability of service to native load. If service under this Service Schedule is interrupted under Section C-3.7(a) or (b), neither Seller nor Purchaser shall be obligated to pay any damages under this Agreement or Confirmation. If service under ATTACHMENT 1
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this Service Schedule is interrupted for any reason other than pursuant to Section C-
3.7(a) or (b), the Non-Performing Party shall be responsible for payment of damages as provided in Section 21.3 of this Agreement or in any Confirmation.
C-3.8 Each Party that is a FERC regulated public utility as defined in Section C-3.5 shall file the Confirmation with FERC for each transaction under this Service Schedule with a term in excess of one year no later than 30 days after service begins if that Party would have been required to file such Confirmation or similar agreements with FERC under an applicable FERC accepted market based rate schedule.
C-3.9 Seller shall be responsible for ensuring that Service Schedule C transactions are scheduled as firm power consistent with the most recent rules adopted by the applicable NERC regional reliability council.
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SERVICE SCHEDULE D
OPERATING RESERVE – SPINNING
AND
OPERATING RESERVE –SUPPLEMENTAL
D-1 PURPOSE
This Service Schedule specifies procedures, terms and conditions pursuant to which the Seller provides Operating Reserve – Spinning and/or Operating Reserve – Supplemental, as specified in the Confirmation, to enable the Designated Authority to meet a reserve obligation or to resell as ancillary services under an OATT.
D-2 DEFINITIONS AND RULES ABOUT THIS SERVICE SCHEDULE
D-2.1 Terms used in this Service Schedule with initial capitalization which are not defined in the Agreement or this Service Schedule shall have the meanings given to them in the NERC Glossary and Applicable Standards. In addition to the definitions specified in Section 4 of the Agreement, the following definitions apply to this Service Schedule.
D-2.1.1 “Applicable Standards” means the NERC Reliability Standards and the respective reliability standards and criteria of NERC, and of any Regional Reliability Organization, Balancing Authority, and Reserve Sharing Group applicable to the Seller’s provision and the Designated Authority’s use of Operating Reserve – Spinning or Operating Reserve – Supplemental, in force as of the date of the Confirmation.
D-2.1.2 “Demand Response Resource(s)” has the meaning given in 18 C.F.R. §35.28(b)(5).
D-2.1.3 “Designated Authority” means the Regional Reliability Organization, Balancing Authority, Reserve Sharing Group or other entity designated in the Confirmation, ATTACHMENT 1
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which shall have a right to apply the applicable Reserve to the quantity of Reserve it is required to maintain, and to use such Reserve in accordance with the Applicable Standards. The Designated Authority and the Purchaser may be the same entity or two different entities. If the Designated Authority and the Purchaser are the same entity, then the Designated Authority shall also be the Purchaser for all purposes under the Agreement.
D-2.1.4 “Good Utility Practice” means any of the practices, methods, and acts engaged in or approved by a significant portion of the electric utility industry during the applicable time period in the applicable region, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision in question was made, could have been expected to accomplish the desired result in a manner that: (a) is consistent with the Applicable Standards; (b) gives due consideration to reliability, safety and protection of equipment and the public welfare; and (c) is consistent with good business practices, reliability, safety, and expedition. Good Utility Practice is not intended to be limited to the optimum practice, method or act, or the exclusion of all other practices, but rather to be a range of acceptable practices, methods, or acts generally accepted in the region.
D-2.1.5 “NERC Glossary” means the NERC Glossary of Terms Used in Reliability Standards.
D-2.1.6 “Non-Performance” with respect to Seller shall have the meaning given in Section D-4.1, and with respect to Purchaser, the meaning given in Section D-4.2.
D-2.1.7 “OATT” refers to the Open Access Transmission Tariff of the Designated ATTACHMENT 1
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Authority or, if the Designated Authority has no OATT, the pro forma Open Access Transmission Tariff of the FERC.
D-2.1.8 “OATT Schedule” refers to schedule 5 or 6 of the OATT for sale of ancillary services, or any other schedule under an OATT for sale of Operating Reserve – Spinning or Operating Reserve – Supplemental.
D-2.1.9 “Operating Reserve – Spinning” shall have the meaning given in the NERC Glossary of Terms and the Applicable Standards, and is the product transacted under schedule 5 or similar schedule under an OATT.
D-2.1.10 “Operating Reserve – Supplemental” shall have the meaning given in the NERC Glossary of Terms and the Applicable Standards, and is the product transacted under schedule 6 or similar schedule under an OATT.
D-2.2 The following rules apply to this Service Schedule.
D-2.2.1 In the event of inconsistency between the definition in the NERC Glossary of Terms and the Applicable Standards, the Applicable Standards shall control.
D-2.2.2 No product sold or transferred under this Service Schedule D shall include reactive supply and voltage control service, or Regulation and Frequency Response service.
D-2.2.3 The OATT, OATT Schedules, regulations of the FERC, the NERC Glossary, and Applicable Standards shall be applied in their forms as of the date of the Confirmation.
D-3 TERMS OF SERVICE
D-3.1 Each Confirmation entered into under this Service Schedule shall contain the following information, and may contain other terms and conditions to which the Parties agree:
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(a) A prominent designation of the service, Operating Reserve – Spinning and/or Operating Reserve – Supplemental, to which the Confirmation applies; (b) Identification of the Designated Authority and if the Designated Authority is not a Regional Reliability Organization, the Regional Reliability Organization within which the Designated Authority is electrically located;
(c) The Standard Confirmation Provisions, as applicable; (d) Any additional attributes of the Operating Reserve – Spinning or Operating Reserve – Supplemental, as the Parties may agree;
(e) The means by which requests for energy required to be delivered under the Service Schedule shall be communicated; and
(f) Any conditions to the effectiveness of the Confirmation, including, for example, the completion of any arrangements or agreements between the Seller and the Designated Authority or among the Seller, Designated Authority, and Purchaser.
D-3.2 Contract Price. The Contract Price may include separately stated charges for capacity and energy, and any agreements concerning transmission arrangements and payment obligations.
D-3.3 Seller shall provide Operating Reserve – Spinning or Operating Reserve – Supplemental, as applicable, to the Designated Authority in conformity with the Applicable Standards and any additional attributes specified in the Confirmation as are consistent with the Applicable Standards. Seller shall provide such service from one or more generation resources or Demand Response Resources. Such resources must be physically and operationally available to respond within the time periods, and in conformance with other technical and operational criteria, prescribed by, the Applicable Standards for the applicable service, and ATTACHMENT 1
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as required to conform to any additional attributes stated in the Confirmation.
D-3.4 Obligations Concerning Capacity and Requests for and Delivery of Energy D-3.4.1 Seller shall provide capacity and deliver energy associated with Operating Reserve – Spinning or Operating Reserve – Supplemental, in quantities up to the applicable capacity(ies) specified in the Confirmation for the applicable hour(s), as and when the Designated Authority requests such delivery in the manner of request specified in the Confirmation and in accordance with Section D-3.4.2.
D-3.4.2 The Designated Authority shall use the capacity and energy provided by Seller under this Service Schedule for the sole purpose of satisfying the Designated Authority’s own obligations pertaining to Operating Reserve – Spinning and Operating Reserve – Supplemental, as specified in the Applicable Standards or the Confirmation. Purchaser shall ensure that the Designated Authority shall not require Seller to deliver energy under this Service Schedule except as and when the Designated Authority determines, in its good faith discretion reasonably exercised in accordance with Good Utility Practice or such other criteria as may be stated in the Confirmation, that such energy is required to enable it to respond to a contingency or other event for which the service specified in the Confirmation is permitted to be utilized under the Applicable Standards or as otherwise stated in the Confirmation.
D-3.5 Inspection and Audit. The Purchaser and Designated Authority shall have the right, to conduct such inspections and audits of Seller’s records as are reasonable to assure that the Seller’s provision of services under this Service Schedule and Confirmation conforms to the Applicable Standards and the Confirmation. The Seller shall have the right to conduct ATTACHMENT 1
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inspections and audits of the Designated Authority’s records as reasonably required to assure that any use by the Designated Authority of the services under this Service Schedule and Confirmation conformed to Section D-3.4.2 and the Confirmation. The Parties may state further details and conditions in the Confirmation concerning these rights, including, for example, provisions concerning confidentiality or limiting inspection to an agreed third-party auditor.
D-3.6 Regulatory Matters – Rate Caps
D-3.6.1 The price for Operating Reserve – Spinning or Operating Reserve – Supplemental shall not be subject to the rate caps specified in Section D-3.6.2 in either of the following two circumstances:
(1) where the Seller is a FERC regulated public utility and that Seller has been authorized to sell power like that provided for under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility" as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e).
D-3.6.2 Except as provided for in Section D-3.6.1, the price shall not exceed the Seller's forecasted Incremental Cost plus up to: $7.32/kW/month; $1.68/kW/week;
33.78¢/kW/day; 14.07 mills/kWh; or 21.11 mills/kWh for service of sixteen (16) hours or less per day. The hourly rate is capped at the Seller's forecasted Incremental Cost plus 33.78¢/kW/day. The total demand charge revenues in any consecutive seven-day period shall not exceed the product of the weekly rate and the highest demand experienced on any day in the seven-day period. Exchange ATTACHMENT 1
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ratios among such Parties shall be as mutually agreed between the Purchaser and the Seller, but shall not exceed the ratio of 1.5 to 1.0. The Seller's forecasted Incremental Cost discussed above also may include any transmission and/or ancillary service costs associated with the sale, including the cost of any transmission and/or ancillary services that the Seller must take on its own system.
Any such transmission and/or ancillary service charges shall be separately identified by the Seller to the Purchaser for transactions under this Schedule including exchanges. The transmission and ancillary service rate ceiling shall be available through the WSPP's Hub or homepage. Any such transmission service (and ancillary services provided in conjunction with such transmission service) by Seller shall be provided pursuant to any applicable transmission tariff or agreement, and the rates therefore shall be consistent with such tariff or agreement.
The foregoing hourly rate caps (i) are subject to the submission of cost justification by the applicable Seller to the FERC, and acceptance by FERC thereof, under Western Systems Power Pool, 122 FERC ¶ 61,139 (2008), or (ii) are inapplicable, in the event that the Seller has filed with FERC, and FERC has accepted, a rate schedule applicable solely to such Seller, which rate schedule has been, upon the request of the applicable Seller, incorporated into this Agreement at Schedule “Q” hereof (such incorporation to occur upon Seller’s request without approval of the WSPP Executive Committee).
D-4 NON-PERFORMANCE, DAMAGES AND TERMINATION
D-4.1 Seller Non-Performance. “Non-Performance” with respect to Seller means Seller’s failure to provide capacity or deliver energy to the Designated Authority as this Service Schedule ATTACHMENT 1
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and the Confirmation require.
D-4.1.1 Purchaser Entitlement to Damages. In the event of Non-Performance by Seller, Seller shall pay damages to Purchaser calculated in accordance with Section 21.3 of the Agreement.
D-4.1.2 Purchaser Option to Terminate. Purchaser shall have an option to declare any instance of Seller’s Non-Performance under Section D-4.2 an Event of Default under the Agreement and the remedies for an Event of Default under Section
22.2(b) of the Agreement shall apply (excluding Section 22.2(a)), provided, that the right to terminate transactions for such Non-Performance shall be limited to transactions under this Service Schedule D. Exercise of the termination option under this Section D-4.1.2 shall not diminish the performing Party’s rights to collect damages for such Non-Performance under Section D-4.1.1, or to avail itself of remedies for other Events of Default.
D-4.2 Purchaser Non-Performance. “Non-Performance” with respect to the Purchaser means the Designated Authority’s failure to receive capacity and/or energy, or the Designated Authority’s use of capacity and/or energy under this Service Schedule which use does not conform to Section D-3.4.2 (such capacity and/or energy, the “unauthorized energy”).
D-4.2.1 Seller Entitlement to Damages. In the event of Non-Performance by Purchaser, Purchaser shall compensate Seller in an amount equal to the quantity of unauthorized energy Seller was required to deliver during each hour, multiplied by the energy charge for the applicable hour.
D-4.2.2 Seller Option to Terminate. Seller shall have an option to declare any instance of Purchaser’s Non-Performance under Section D-4.2 an Event of Default under the ATTACHMENT 1
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Agreement and the remedies for an Event of Default under Section 22.2(b) of the Agreement shall apply (but not Section 22.2(a)), provided that the right to terminate all transactions for such Non-Performance shall be limited to transactions under this Service Schedule D. Exercise of the termination option under this Section D-4.2.2 shall not diminish the performing Party’s rights to collect damages for such Non-Performance under Section D-4.2.1, or to avail itself of remedies for other Events of Default under the Agreement.
D-4.3 Termination under Section D-4.1.2 or D-4.4.2 shall become effective immediately upon receipt by the non-performing Party of the Performing Party’s written notice thereof, which notice shall specify the Non-Performance. If the Performing Party fails to exercise its termination option arising from an instance of Non-Performance under Section D-4.1.2 or D-4.2.2 within thirty (30) days following the date the option to terminate arose, then solely with respect to that instance of Non-Performance, the termination option shall cease to be available to the Performing Party.
D-4.4 Nothing in this Service Schedule shall restrict the right of either Party to avail itself of other remedies provided in the Agreement.
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SERVICE SCHEDULE E
ENERGY IMBALANCE AND GENERATOR IMBALANCE POWER
E-1 PURPOSE
This Service Schedule states procedures, terms and conditions pursuant to which the Seller provides Energy Imbalance Power and Generation Imbalance Power to the Purchaser, as specified in the Confirmation, and the Purchaser receives such service to meet a reliability obligation or to resell as ancillary services under an OATT.
E-2 DEFINITIONS AND RULES ABOUT THIS SERVICE SCHEDULE
E-2.1 In addition to the definitions specified in Section 4 of the Agreement, the following definitions apply to this Service Schedule E.
E-2.1.1 “Balancing Power” means a service or product that can be resold as Energy Imbalance Power or Generator Imbalance Power under Schedules 4 and 9, respectively, of the OATT or other schedule under an OATT for sale of imbalance power.
E-2.1.2 “Demand Response Resource(s)” has the meaning given in 18 C.F.R. §35.28(b)(5).
E-2.1.3 “Non-Performance” with respect to Seller shall have the meaning given in Section E-4.1 and with respect to Purchaser the meaning given in Section E-4.2.
E-2.1.4 “OATT” refers to the Purchaser’s Open Access Transmission Tariff approved by the FERC or, if the Purchaser has no OATT, the pro forma Open Access Transmission Tariff of the FERC.
E-2.1.5 “OATT Schedule” refers to schedule 4 or 9 of the OATT for sale of ancillary services, or any other schedule for sale of imbalance power under an OATT.
E-2.2 The following rules apply to this Service Schedule.
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E-2.2.1 No product sold or transferred under this Service Schedule E shall include reactive supply and voltage control service, or Regulation and Frequency Response service.
E-2.2.2 The OATT and OATT Schedules shall be applied in their forms as of the date of the Confirmation.
E-3 TERMS OF SERVICE
E-3.1 Each Confirmation entered into under this Service Schedule shall contain the following information, and may contain other terms and conditions to which the Parties agree:
(a) A prominent designation of the service, Energy Imbalance and Generator Imbalance Power, to which the Confirmation applies;
(b) The Standard Confirmation Provisions, as applicable; (c) Any additional attributes of the Balancing Power, as the Parties may agree; (d) The means by which requests for energy required to be delivered under the Service Schedule shall be communicated; and
(e) Any conditions to the effectiveness of the Confirmation.
E-3.2 Contract Price. The Contract Price may include separately stated charges for capacity and energy, and any agreements concerning transmission arrangements and payment obligations.
E-3.3 Seller shall provide Balancing Power from one or more generation resources or Demand Response Resources. Such resources must be physically and operationally available to respond within the time periods, and in conformance with other technical and operational criteria, as may be stated in the Confirmation.
E-3.4 Obligations Concerning Capacity and Requests for and Delivery of Energy ATTACHMENT 1
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E-3.4.1 Upon the requests of the Purchaser, Seller shall provide capacity and deliver energy associated with Balancing Power to the Purchaser at any rate of flow up to and including the applicable capacity(ies) and at such intervals as are specified in the Confirmation for the applicable hour(s).
E-3.4.2 Transmission must be available intra-hour, and may be arranged and scheduled in any manner that meets the requirements of the Parties.
E-3.5 Regulatory Matters – Rate Caps
E-3.5.1 The price for Balancing Power shall not be subject to the rate caps specified in Section E-3.5.2 in either of the following two circumstances:
(1) where the Seller is a FERC regulated public utility and that Seller has been authorized to sell power like that provided for under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility" as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e).
E-3.5.2 Except as provided for in Section E-3.5.1, the price shall not exceed the Seller's forecasted Incremental Cost plus up to: $7.32/kW/month; $1.68/kW/week;
33.78¢/kW/day; 14.07 mills/kWh; or 21.11 mills/kWh for service of sixteen (16) hours or less per day. The hourly rate is capped at the Seller's forecasted Incremental Cost plus 33.78¢/kW/day. The total demand charge revenues in any consecutive seven-day period shall not exceed the product of the weekly rate and the highest demand experienced on any day in the seven-day period. Exchange ratios among such Parties shall be as mutually agreed between the Purchaser and ATTACHMENT 1
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the Seller, but shall not exceed the ratio of 1.5 to 1.0. The Seller's forecasted Incremental Cost discussed above also may include any transmission and/or ancillary service costs associated with the sale, including the cost of any transmission and/or ancillary services that the Seller must take on its own system.
Any such transmission and/or ancillary service charges shall be separately identified by the Seller to the Purchaser for transactions under this Schedule including exchanges. The transmission and ancillary service rate ceiling shall be available through the WSPP's Hub or homepage. Any such transmission service (and ancillary services provided in conjunction with such transmission service) by Seller shall be provided pursuant to any applicable transmission tariff or agreement, and the rates therefore shall be consistent with such tariff or agreement.
The foregoing hourly rate caps (i) are subject to the submission of cost justification by the applicable Seller to the FERC, and acceptance by FERC thereof, under Western Systems Power Pool, 122 FERC ¶ 61,139 (2008), or (ii) are inapplicable, in the event that the Seller has filed with FERC, and FERC has accepted, a rate schedule applicable solely to such Seller, which rate schedule has been, upon the request of the applicable Seller, incorporated into this Agreement at Schedule “Q” hereof (such incorporation to occur upon Seller’s request without approval of the WSPP Executive Committee).
E-4 NON-PERFORMANCE, DAMAGES AND TERMINATION
E-4.1 Seller Non-Performance. “Non-Performance” with respect to Seller means Seller’s failure to provide capacity or deliver energy to the Purchaser as this Service Schedule and the Confirmation require.
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E-4.1.1 Purchaser Entitlement to Damages. In the event of Non- Performance by Seller, Seller shall pay damages to Purchaser calculated in accordance with Section 21.3 of the Agreement.
E-4.1.2 Purchaser Option to Terminate. Purchaser shall have an option to declare any instance of Seller’s Non-Performance under Section E-4.1 an Event of Default under the Agreement and the remedies for an Event of Default under Section
22.2(b) of the Agreement shall apply (excluding Section 22.2(a)), provided that the right to terminate transactions for such Non-Performance shall be limited to transactions under this Service Schedule E. Exercise of the termination option under this Section E-4.1.2 shall not diminish the performing Party’s rights to collect damages for such Non-Performance under Section E-4.1.1, or to avail itself of remedies for other Events of Default.
E-4.2 Purchaser Non-Performance. “Non-Performance” with respect to Purchaser means Purchaser’s failure to receive energy that it had scheduled for receipt under this Service Schedule and the Confirmation.
E-4.2.1 Seller Entitlement to Damages. In the event of Non-Performance by Purchaser, Purchaser shall pay damages to Purchaser calculated in accordance with Section
21.3 of the Agreement.
E-4.2.2 Seller Option to Terminate. Seller shall have an option to declare any instance of Purchaser’s Non-Performance under Section E-4.2 an Event of Default under the Agreement and the remedies for an Event of Default under Section 22.2(b) of the Agreement shall apply (excluding Section 22.2(a)), provided that the right to terminate transactions for such Non-Performance shall be limited to transactions ATTACHMENT 1
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under this Service Schedule E. Exercise of the termination option under this Section E-4.2.2 shall not diminish the performing Party’s rights to collect damages for such Non-Performance under Section E-4.2.1, or to avail itself of remedies for other Events of Default.
E-4.3 Termination under Section E-4.1.2 or E-4.2.2 shall become effective immediately upon receipt by the non-performing Party of the Performing Party’s written notice thereof, which notice shall specify the Non-Performance. If the Performing Party fails to exercise its termination option arising from an instance of Non-Performance under Section E-4.1.2 or E-4.2.2 within thirty (30) days following the date the option to terminate arose, then solely with respect to that instance of Non-Performance, the termination option shall cease to be available to the Performing Party.
E-4.4 Nothing in this Service Schedule shall restrict the right of either Party to avail itself of other remedies provided in the Agreement.
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SERVICE SCHEDULE R
RENEWABLE ENERGY CERTIFICATE TRANSACTIONS
WITH AND WITHOUT ENERGY
R-1 Introduction; Transaction Documentation; and Rules of Construction. This Service Schedule R states terms and conditions applicable to REC Transactions entered into by Parties under the Agreement.
R-1.1 Documentation. Each REC Transaction shall be documented in a Confirmation.
Annex 2 is a Confirmation template, which the Parties may modify and make subject to any other agreement between them. A Confirmation for a REC Transaction will be given legal effect only if a Documentary Writing.
R-1.2 Contract Documents. The Agreement, Service Schedule R, and the fully executed Confirmation comprise a contract for a REC Transaction. Any conflicts between or among the Agreement, Service Schedule R, and the Confirmation shall be resolved in the following order of control: first, the Confirmation; second, Service Schedule R; and third, the Agreement.
R-1.3 Definitions. Definitions contained in the Agreement and Annex 1 apply to this Service Schedule R. Any conflicts among definitions contained in these documents shall be resolved in accordance with Section R-1.2.
R-1.4 Rules of Construction.
R-1.4.1 The Annexes of Service Schedule R are incorporated into and made a part of this Service Schedule R, as though set forth fully herein.
R-1.4.2 The word “including” shall mean “including but not limited to.” Unless otherwise specified, the word “Section” refers to a section of this Service Schedule R and includes all subparts of the specified section.
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R-1.4.3 Subject to any legal restrictions applicable to a Party, the Parties to a REC Transaction may vary any term or condition of this Service Schedule R for that REC Transaction. Provisions in this Service Schedule R concerning such variance of terms, such as “unless otherwise agreed,” shall not prejudice the generality of the preceding sentence, provided, that the Parties shall not vary Section C-3.6 of Service Schedule C, Section B-3.6 of Service Schedule B, and Section A-3.7 of Service Schedule A.
R-1.4.4 An Applicable Program shall be applicable to a REC Transaction only if designated expressly in the Confirmation. No rule of contract construction or interpretation, and no inference or implication, shall cause an Applicable Program that is not designated expressly in the Confirmation to be applicable to a REC Transaction.
R-2 Confirmations; REC Products.
R-2.1 REC Transaction. A “REC Transaction” is a purchase and sale of a REC separately from or bundled with Energy. A REC Transaction may be for the purchase and sale of any REC Product defined in Section R-2.3 or another REC Product the Parties may define.
R-2.2 Confirmations. In addition to other terms and conditions to which the Parties may agree, the Confirmation:
R-2.2.1 must include the following terms: REC Product, Contract Quantity, Contract Price, Vintage, and Transfer Date, and whether the Environmental Attributes covered by the REC are All Attributes, Program Attributes, or other coverage the Parties may specify; ATTACHMENT 1
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R-2.2.2 for a bundled REC Transaction (Firm Bundled REC, Resource Contingent Bundled REC, or Facility As-Run Bundled REC), may include a single Contract Price which may be allocated between the REC and the Energy;
R-2.2.3 must identify the Renewable Energy Facility or Renewable Energy Source if the REC Transaction is All Attributes (Section R-2.4.1) or Program Attributes (Section R-2.4.2), if a designated Applicable Program requires such identification, or if the REC Product is Resource Contingent Bundled REC or Facility As-Run Bundled REC;
R-2.2.4 must designate an Applicable Program if the REC Transaction is Program Attributes, the Seller is to assure compliance with an Applicable Program (Sections R-5.2.1, 6.3, and 6.4), or to recover penalties and alternative compliance payments (Section R-9.1), and if the REC Transaction is All Attributes, may designate an Applicable Program (Section 2.4.1).
R-2.3 REC Products. A “REC Product” is any of the following defined products or other product specified in the Confirmation.
R-2.3.1 Firm REC. A “Firm REC” is a REC purchased and sold in a transaction that does not include the sale or purchase of energy. The Seller has a firm obligation to Deliver the REC pursuant to the Confirmation. A remedy for non-performance is available under Section R-9, except in the event and to the extent of Uncontrollable Force.
R-2.3.2 Firm Bundled REC. A “Firm Bundled REC” is a REC purchased and sold in a transaction that includes the purchase and sale of Energy. The ATTACHMENT 1
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Seller has a firm obligation to Deliver the REC and Energy pursuant to the Confirmation. A remedy for non-performance is available under Section R-9, except in the event and to the extent of Uncontrollable Force. The terms and conditions of Service Schedule C apply to the purchase and sale of Energy associated with a Firm Bundled REC as the Parties may modify such terms and conditions in the Confirmation, subject to the proviso stated in Section R-1.4.3. The hourly rate caps identified in Section C-3.6 of Service Schedule C shall apply, except (1) where the Seller is a FERC regulated “public utility” as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e), and that Seller has been authorized to sell power like that provided for in Service Schedule C at market-based rates; or (2) where the Seller is not such a FERC regulated “public utility.” When such hourly rate caps apply, (a) if the Contract Price is allocated between the REC and the Energy, the hourly rate caps shall apply to the Contract Price for the Energy and not the REC; and (b) if the Contract Price is not allocated between the REC and the Energy, the hourly rate caps shall apply to the bundled Contract Price.
R-2.3.3 Resource Contingent REC. A “Resource Contingent REC” is a REC purchased and sold in a transaction that does not include the sale or purchase of Energy. The Seller has a resource contingent obligation to Deliver the REC pursuant to the Confirmation. A remedy for non- performance is available under Section R-9, except in the event and to the extent: (i) of Uncontrollable Force; (ii) the Renewable Energy ATTACHMENT 1
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Facility identified in the Confirmation was not on line to produce energy required for the REC due to Forced Outage, Scheduled Maintenance, or Fuel Impediment; or (iii) of the occurrence of such other circumstances to which the Parties may have agreed in the Confirmation, resulting in a reduction of output or unavailability to produce energy required for the REC. In the event and to the extent of an outage under (ii) or, if applicable, (iii), the resulting reduction in output for the applicable hour shall be allocated among all purchasers of RECs from the Renewable Energy Facility who are identified in the Confirmation (including purchasers identified under any provisions in the Confirmation allowing for subsequent identification) in accordance with any priorities or shares stated in the Confirmation, and if no priorities or shares are stated in the Confirmation, then proportionately in accordance with such purchasers’ contract quantities under contracts with Seller.
R-2.3.4 Resource Contingent Bundled REC.
(a) A “Resource Contingent Bundled REC” is a REC purchased and sold in a transaction that includes the purchase and sale of Energy. The Seller has a resource contingent obligation to Deliver the REC and Energy pursuant to the Confirmation. A remedy for non-performance is available under Section R-9, except in the event and to the extent: (i) of Uncontrollable Force; (ii) the Renewable Energy Facility identified in the
Confirmation was not on line to produce energy required for the REC or Delivery, due to Forced Outage, Scheduled
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Maintenance, or Fuel Impediment; or (iii) of the occurrence of such other circumstances to which the Parties agreed in the Confirmation, resulting in a reduction of output or unavailability to produce energy required for the REC or Delivery. In the event and to the extent of an outage under (ii) or, if applicable, (iii), the resulting reduction in output for the applicable hour shall be allocated among all purchasers of RECs and energy from the Renewable Energy Facility who are identified in the
Confirmation (including purchasers identified under any provisions in the Confirmation allowing for subsequent
identification) in accordance with any priorities or shares stated in the Confirmation, and if no priorities or shares are stated in the Confirmation, then proportionately in accordance with such purchasers’ contract quantities under contracts with Seller. (b) The terms and conditions of Service Schedule B apply to the purchase and sale of Energy associated with a Resource
Contingent Bundled REC as modified herein and as may be modified in the Confirmation, subject to the proviso stated in Section R-1.4.3. The hourly rate caps identified in Section B-
3.6 of Service Schedule B shall apply, except (1) where the Seller is a FERC regulated “public utility” as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e), and that Seller has been authorized to sell power like that provided for in Service Schedule B at market-based rates; or (2) where the Seller ATTACHMENT 1
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is not such a FERC regulated “public utility.” When such hourly rate caps apply, (a) if the Contract Price is allocated between the REC and the Energy, the hourly rate caps shall apply to the Contract Price for the Energy and not the REC; and (b) if the Contract Price is not allocated between the REC and the Energy, the hourly rate caps shall apply to the bundled Contract Price.
Service Schedule B Section B-3.8 is modified to state the following:
Energy schedules for the Purchaser's share of a
Renewable Energy Facility may be modified by the
Purchaser with not less than a thirty (30) minute notice before the hour in which the modification is to occur,
unless otherwise agreed or unforeseen system operating
conditions occur, or as otherwise required by, or
pursuant to customary practice in, the applicable regional reliability council. A reduction in the energy schedule shall be made commensurately for the REC requirement
for the applicable hour. Seller shall notify Purchaser of volumes to be delivered no later than thirty (30) minutes before the hour in which delivery is to occur unless
otherwise agreed or such notification is infeasible due to unforeseen system operating conditions. Seller shall
timely notify the Purchaser of Scheduled Maintenance.
The following is added at the end of Section B-3.9:
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(f) By the Seller when all or a portion of the unit is
unavailable due to Fuel Impediment, unless otherwise
agreed by the schedulers.
R-2.3.5 Facility As-Run REC. A “Facility As-Run REC” is a REC purchased and sold in a transaction that does not include the sale or purchase of Energy. The Seller is obligated to Deliver the REC pursuant to the Confirmation. A remedy for non-performance is available under Section R-9, except in the event and to the extent that, for any reason or no reason, the Renewable Energy Facility identified in the Confirmation was not on line to produce energy required for the REC. If the Renewable Energy Facility designated in the Confirmation is not operated, the resulting reduction in output for the applicable hour shall be allocated among all purchasers of RECs from the Renewable Energy Facility who are identified in the Confirmation (including purchasers identified under any provisions in the Confirmation allowing for subsequent identification) in accordance with any priorities or shares stated in the Confirmation, and if no priorities or shares are stated in the Confirmation, then proportionately in accordance with such purchasers’ contract quantities under contracts with Seller.
R-2.3.6 Facility As-Run Bundled REC.
(a) A “Facility As-Run Bundled REC” is a REC purchased and sold in a transaction that includes the purchase and sale of Energy.
The Seller has an obligation to Deliver the REC and Energy pursuant to the Confirmation. A remedy for non-performance is ATTACHMENT 1
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available under Section R-9, except in the event and to the extent that, for any reason or no reason, the Renewable Energy Facility identified in the Confirmation was not on line to produce energy required for the REC or Delivery. If the Renewable Energy Facility designated in the Confirmation is not operated, the resulting reduction in output for the applicable hour shall be allocated among all purchasers of RECs and energy from the Renewable Energy Facility who are identified in the
Confirmation (including purchasers identified under any provisions in the Confirmation allowing for subsequent
identification) in accordance with any priorities or shares stated in the Confirmation, and if no priorities or shares are stated in the Confirmation, then proportionately in accordance with such purchasers’ contract quantities under contracts with Seller. (b) The terms and conditions of Service Schedule A apply to the purchase and sale of Energy associated with a Facility As-Run Bundled REC as modified herein and as may be modified in the Confirmation, subject to the proviso stated in Section R-1.4.3.
The hourly rate caps identified in Section A-3.7 of Service Schedule A shall apply, except (1) where the Seller is a FERC regulated “public utility” as defined in Section 201(e) of the Federal Power Act, 16 U.S.C. § 824(e), and that Seller has been authorized to sell power like that provided for in Service Schedule A at market-based rates; or (2) where the Seller is not ATTACHMENT 1
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such a FERC regulated “public utility.” When such hourly rate caps apply, (a) if the Contract Price is allocated between the REC and the Energy, the hourly rate caps shall apply to the Contract Price for the Energy and not the REC; and (b) if the Contract Price is not allocated between the REC and the Energy, the hourly rate caps shall apply to the bundled Contract Price.
Service Schedule A Section A-3.3 is modified to state the following:
Energy schedules may be modified by the Purchaser or
Seller with not less than a thirty (30) minute notice
before the hour in which the modification is to occur,
unless otherwise agreed or unforeseen system operating
conditions occur, or as otherwise required by, or
pursuant to customary practice in, the applicable regional reliability council. A reduction in the energy schedule shall be made commensurately for the REC requirement
for the applicable hour. Seller shall notify Purchaser of volumes to be delivered no later than thirty (30) minutes before the hour in which delivery is to occur unless
otherwise agreed or such notification is infeasible due to unforeseen system operating conditions.
R-2.4 Environmental Attributes Contained In The REC. The Confirmation may describe the Environmental Attributes covered by the REC as All Attributes, Program Attributes, or as the Parties otherwise may agree. If the Confirmation does ATTACHMENT 1
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not designate a REC Transaction as Program Attributes or otherwise limit the Environmental Attributes conveyed, and if a Renewable Energy Facility or Renewable Energy Source is specified, the REC Transaction shall be All Attributes.
A designation of All Attributes will not be effective unless a Renewable Energy Facility or Renewable Energy Source is designated in the Confirmation.
R-2.4.1 All Attributes. An “All Attributes” REC conveys all of the Environmental Attributes the Renewable Energy Facility or Renewable Energy Source designated in the Confirmation is capable of producing, whether known or unknown on the Effective Date, including, at a minimum, all Environmental Attributes required by any Applicable Program designated in the Confirmation. Seller disclaims any warranty that Environmental Attributes other than those required by an Applicable Program designated in the Confirmation fulfill the requirements of any other Applicable Program. To establish the Environmental Attributes conveyed, the Confirmation may include a specification thereof.
R-2.4.2 Program Attributes. A “Program Attributes” REC conveys the Environmental Attributes required by an Applicable Program designated in the Confirmation. It conveys no other Environmental Attributes, the rights to which are retained by the Seller. The Parties should verify that a designated Tracking System will recognize a Program Attributes REC. (Note, WREGIS does not recognize a Program Attributes limitation upon conveyed Environmental Attributes.)
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R-3 Delivery and Title.
R-3.1 Unbundled REC Transactions. This Section R-3.1 applies if the REC Product is a Firm REC, Resource Contingent REC, or Facility As-Run REC.
R-3.1.1 Delivery. “Deliver(y)(ed)” occurs upon completion of Seller’s transfer of the Contract Quantity to Purchaser. If a Tracking System is designated in the Confirmation, Seller shall cause transfer in accordance with the rules and procedures of the Tracking System. If the Tracking System does not state such rules or procedures, then Delivery shall occur upon the Tracking System’s transfer of the REC into Purchaser’s account. If a Tracking System is not designated in the Confirmation, Delivery is completed upon Seller’s delivery to Purchaser of an Attestation.
R-3.1.2 Acceptance. “Accept(ance)(ed)” means Purchaser’s receipt of Delivery of the REC from Seller, without Purchaser’s rejection. If a Tracking System is designated in the Confirmation, Purchaser shall receive a transfer in accordance with the rules and procedures of the Tracking System, and Acceptance (or rejection) shall be made within five (5) Business Days following the date the Tracking System gives electronic notice to Purchaser that it has initiated transfer (this deadline applies regardless of any different period stated in the Tracking System’s rules and procedures) and if timely rejection is not made, then the Delivery is Accepted. If a Tracking System is not designated in the Confirmation, Acceptance occurs upon Purchaser’s Acceptance, ATTACHMENT 1
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without rejection within five (5) Business Days of delivery, of the Attestation delivered by Seller.
R-3.1.3 Passage of Title. Title to the REC shall pass from Seller to Purchaser upon Delivery and Acceptance.
R-3.2 Bundled REC Transactions. This Section R-3.2 applies if the REC Product is a Firm Bundled REC, Resource Contingent Bundled REC, or Facility As-Run Bundled REC.
R-3.2.1 Delivery. “Delivery(y)(ed)” occurs upon completion of Seller’s transfer to Purchaser of the Contract Quantity of the REC and the Contract Quantity of the Energy. Delivery of the REC shall be completed in accordance with Section R-3.1.1. Delivery of Energy shall be completed in accordance with the terms and conditions of the Confirmation and the Agreement.
R-3.2.2 Acceptance. “Acceptance” of the REC occurs in the manner specified in Section R-3.1.2, and of the Energy upon receipt at the delivery point in accordance with the Confirmation.
R-3.2.3 Passage of Title. If the Vintage of the REC is prior to the Effective Date, title to the REC passes from Seller to Purchaser on the Effective Date or other date to which the Parties agree. If the REC is to be generated on or after the Effective Date, title to the REC passes upon the generation of each megawatt hour of energy required for production of the REC, and Seller shall hold the REC in trust for Purchaser until Delivery. Passage of title to Energy occurs pursuant to the Agreement.
R-3.3 Actions Required of Parties to Assure Delivery.
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R-3.3.1 Provision of Generation Information; Required Actions. No less than monthly, Seller shall provide Purchaser with a written statement setting forth for applicable periods the quantities of Seller’s generation of energy for production of the REC. Seller shall promptly take all actions and do all things necessary and appropriate to cause the designated Tracking System, if any, to transfer the REC to Purchaser, including promptly providing all required information and documents in the required forms, and paying any and all fees the Tracking System imposes on Seller. If the Confirmation provides for a designated Tracking System to expedite issuance of certificates (for example, forward transfer certificates in WREGIS), Seller shall promptly take all actions required to cause such expedition. If no Tracking System is designated in the Confirmation, then upon creation of the REC Seller shall promptly deliver the Attestation to Purchaser.
R-3.3.2 Failure to Issue REC. Seller is responsible for transfer and issuance of RECs by the Tracking System; Purchaser’s sole responsibilities are maintenance of an account with the Tracking System and Acceptance of conforming RECs pursuant to Section R-3.1.2. Without prejudice to the immediately preceding sentence, in the event a Tracking System designated in the Confirmation declines to issue an electronic credit or physical certificate to document the attempted transfer, Delivery, or Acceptance of a REC, each Party will provide the other Party with all documents, communications, and information sent to or received from the Tracking System that pertain thereto. The Parties will cooperate, ATTACHMENT 1
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and each Party will complete any uncompleted items for which it is responsible, each at its own expense. If following such efforts, and due to no failure of Seller to take all required actions, the Tracking System does not issue the electronic credit or physical certificate to document the attempted transfer, Delivery, or Acceptance of the REC, Seller may, upon Purchaser’s agreement (which Purchaser may decline in its discretion), provide an Attestation to Purchaser to effect Delivery. The obligations under this Section R-3.3.2 shall not be construed to diminish the Seller or the Purchaser’s respective rights and obligations under the Agreement, Service Schedule R, and the Confirmation.
R-3.4 Conveyance and Transfer. As of both Delivery and passage of title, Seller shall transfer and convey to Purchaser all right, title, and interest in and to the REC and all Environmental Attributes underlying the REC pursuant to the Confirmation, and the exclusive right to any and all Reporting Rights Seller may have in or to the REC and the Environmental Attributes, free and clear of any liens, security interests, or other encumbrances.
R-4 Charges; Credit. The charge shall be an amount equal to the Contract Price multiplied by the Delivered and Accepted quantity, without prejudice to the right to recover damages owed in accordance with Section R-9. The Parties may state any credit terms and conditions to which they agree in the Confirmation; Section 27 of the Agreement applies unless otherwise agreed.
R-5 Governing Law; Change in Law.
R-5.1 Governing Law. Section 24 of the Agreement applies except as follows. If an Applicable Program is designated in the Confirmation, all performance obligations ATTACHMENT 1
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pursuant to the REC Transaction concerning the creation, issuance, transfer, tracking and retirement of the REC shall be governed as follows:
R-5.1.1 If the Applicable Program was created by the laws of a Governmental Authority, then by the laws, rules, regulations, orders, and judicial precedent of such Governmental Authority;
R-5.1.2 If the Applicable Program was not created by the laws of a Governmental Authority, but is a voluntary program, then Section 24 of the Agreement applies without modification, and the Parties shall be bound contractually to comply with the standards and criteria of the voluntary Applicable Program.
R-5.2 Change in Law.
R-5.2.1 Applicability. Section R-5.2 applies only to REC Transactions for which an Applicable Program is designated in the Confirmation. In a REC Transaction for which no Applicable Program is designated, Seller makes no representation or warranty concerning compliance with any particular Applicable Program and any such representation or warranty is expressly disclaimed.
R-5.2.2 Definitions.
(a) “Change in Law” means any addition or amendment, by a Governmental Authority, to any laws, rules, regulations, orders, or judicial precedent, that applies to an Applicable Program designated in the Confirmation, that is enacted or issued after the Effective Date and nullifies compliance of the REC with the Applicable Program. An addition or amendment that is enacted ATTACHMENT 1
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or issued before the Effective Date but effective on or after the Effective Date is not a Change in Law.
(b) “Regulatorily Continuing” means a REC Transaction in which the REC and Environmental Attributes conform to the
requirements of an Applicable Program designated in the Confirmation as such requirements exist on the Effective Date and the Transfer Date, including requirements modified or added by a Change in Law.
(c) “Not Regulatorily Continuing” means a REC Transaction in which the REC and Environmental Attributes conform to the requirements of an Applicable Program designated in the Confirmation as such requirements exist on the Effective Date only, and the REC and Environmental Attributes are not
required to conform to requirements modified or added by a Change in Law.
R-5.2.3 Default Designation as Regulatorily Continuing. A REC Transaction as to which an Applicable Program is designated in the Confirmation shall be Regulatorily Continuing unless the Parties specify in the Confirmation that the REC Transaction is Not Regulatorily Continuing.
R-5.2.4 Effect of Change In Law in Regulatorily Continuing REC Transaction.
(a) If a Change in Law occurs in a Regulatorily Continuing REC Transaction, Seller shall be obligated to make reasonable efforts to attain compliance with the designated Applicable Program, ATTACHMENT 1
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the costs of which shall not be required to exceed any cost cap specified in the Confirmation. If despite such efforts to attain compliance, including reasonable expenditures, Seller cannot obtain compliance and Purchaser refuses to accept Delivery of the REC due to the Change in Law, Seller shall not be liable for damages under Section R-9.
(b) In the event Purchaser refuses to accept Delivery of the REC under Section 5.2.4(a), and Seller has Delivered energy to Purchaser in the REC Transaction, Purchaser shall not be relieved of its obligation to pay for such energy, which payment shall be either at the price allocated to energy in the Confirmation, if any, and if no allocation is made, then at an amount equal to the Replacement Price.
R-5.2.5 Amendment to Address Change In Law. Nothing in this Section R-
5.2 shall be construed to preclude the Parties from agreeing to amend the Confirmation to permit a Seller to perform its obligations in a REC Transaction as to which a Change in Law has occurred.
R-6 Seller Representations and Warranties. In each REC Transaction, Seller represents and warrants to Purchaser the following:
R-6.1 As of both Delivery and passage of title, Seller has and conveys to Purchaser all right, title, interest in and to the REC and all Environmental Attributes underlying the REC as required by the Confirmation, and the exclusive right to any and all Reporting Rights Seller may have in or to the REC and Environmental Attributes, free and clear of any liens, security interests, or other encumbrances.
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R-6.2 As of both Delivery and passage of title, the REC and Environmental Attributes conform to the requirements of the REC Transaction.
R-6.3 If the REC Transaction is Regulatorily Continuing (and an Applicable Program is designated in the Confirmation), subject to any limits upon Seller’s obligations under Section R-5.2.4, as of both Delivery and passage of title, that the REC and Environmental Attributes conform to the requirements of the designated Applicable Program as such requirements exist on the Effective Date and the Transfer Date.
R-6.4 If the REC Transaction is Not Regulatorily Continuing (and an Applicable Program is designated in the Confirmation), as of both Delivery and passage of title, that the REC and Environmental Attributes conform to the requirements of the designated Applicable Program as such requirements exist on the Effective Date.
R-6.5 With respect to deliveries of Energy in REC Transactions for Firm Bundled REC, Contingent Resource Bundled REC, and Facility As-Run Bundled REC, that Seller has complied with the representations and warranties stated in Section 33 of the Agreement.
SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
R-7 Records; Confidentiality
R-7.1 Correction of Records. If any statement, charge or computation concerning a REC Transaction is inaccurate, the Parties promptly shall make any adjustments to records as reasonably necessary to correct such inaccuracy, and make any adjustment of payments required to correspond to the corrected records, provided, ATTACHMENT 1
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that Purchaser shall not be required to pay a higher Contract Price or accept a lower Contract Quantity than the Confirmation requires.
R-7.2 Exception to Confidentiality. Purchaser has the right to disclose to any Governmental Authority having jurisdiction over Purchaser, or to any voluntary Applicable Program and the person or entity specified by the rules of procedures of the voluntary Applicable Program to perform certification, any information necessary to demonstrate Purchaser’s compliance with an Applicable Program (whether or not designated in the Confirmation); provided, however, that Purchaser shall use reasonable efforts to minimize the scope of any such disclosure and shall require, as may be feasible, that the recipient maintain the confidentiality of any documents or confidential information governed by the provisions of Section 30.1 of the Agreement, including, if permitted under applicable procedures of the Governmental Authority or such administrator, and subject to any applicable public records laws, seeking a protective order or similar protective mechanism in connection with any disclosure. With respect to a REC, Purchaser also has the right to disclose the following to any customer or affiliate of Purchaser that is participating in any voluntary or mandatory Applicable Program: the Renewable Energy Source, the location of any Renewable Energy Facility designated in the Confirmation, and monthly generation quantities of energy underlying the REC.
R-8 Uncontrollable Force. The following is substituted for the first sentence of the second paragraph of Section 10 of the Agreement:
The following shall not be considered “Uncontrollable Forces”: (i) Seller’s cost of producing or obtaining the REC or energy (or ability to sell the REC or energy at a price exceeding the Contract Price); (ii) the loss or failure of Seller’s supply, ATTACHMENT 1
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including materials or equipment; or (iii) Purchaser’s inability economically to use or resell the REC or energy.
The following is added at the end of the second paragraph of Section 10 of the Agreement:
If production of energy at a Renewable Energy Facility designated in the Confirmation is curtailed due to an Uncontrollable Force, any production during the period of such curtailment shall be allocated as follows: first, among all purchasers of Firm RECs, Firm Bundled RECs, Resource Contingent RECs, Resource Contingent Bundled RECs, and energy purchased under Service Schedules B and C, proportionately to such purchasers’ contract quantities under contracts with Seller during such period and subject to any priorities or shares stated in the Confirmation, and second, to all purchasers of Facility As-Run RECs, Facility As-Run Bundled RECs and energy purchased under Service Schedule A, proportionately to such purchasers’ contract quantities under contracts with Seller during such period and subject to any priorities or shares stated in the Confirmation.
R-9 Remedies for Non-Performance.
R-9.1 Damages. Section 21.3 of the Agreement, as modified in this Section 9, applies to REC Transactions.
R-9.1.1 Failure to Receive or Deliver in Unbundled REC Transactions. This Section R-9.1.1 applies to REC Transactions for Firm REC, Resource Contingent REC, and Facility As-Run REC. Section 21.3(a)(3) and (5) of the Agreement are inapplicable. Section 21.3(a)(1) of the Agreement is modified as follows:
If Purchaser refuses to Accept Delivery of RECs Delivered by Seller in accordance with the Confirmation, then Purchaser shall ATTACHMENT 1
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be liable to Seller for the product of (i) and (ii) where (i) is the amount, if any, by which the Contract Price exceeded the Resale Price and (ii) is the amount by which the quantity of RECs Purchaser refused to Accept was less than the Contract Quantity, subject to any limitations stated in the Confirmation.
21.3(a)(2) is modified as follows:
If Seller fails to Deliver RECs to Purchaser in accordance with the Confirmation, then Seller shall be liable to Purchaser for: (a) the product of (i) and (ii) where (i) is the amount, if any, by which the Replacement Price exceeded the Contract Price and (ii) is the amount by which the quantity of RECs Seller Delivered was less than the Contract Quantity; plus (b) if an Applicable Program is specified, the amount, if any, of penalties and alternative compliance payments a Governmental Authority required Purchaser to pay due to Seller’s non-performance, and which penalties or alternative compliance payments are no longer subject to judicial review, subject to any limitations stated in the Confirmation.
R-9.1.2 Failure to Receive or Deliver in Bundled REC Transactions. (a) Price Not Allocated between REC and Energy. This Section R-9.1.2(a) applies to REC Transactions for Firm Bundled REC, Resource Contingent Bundled REC, and Facility As-Run
Bundled REC, and in which the Confirmation does not allocate ATTACHMENT 1
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the Contract Price between the REC and Energy. Section
21.3(a)(1) of the Agreement is modified as follows:
If Purchaser refuses to Accept Delivery from Seller in
accordance with the Confirmation, then Purchaser shall be liable to Seller for: (a) the product of (i) and (ii) where (i) is the amount, if any, by which the Contract Price exceeded the Resale Price, and (ii) is the amount by which the quantity of RECs and Energy Purchaser refused to Accept was less than the Contract Quantity, plus (b) the amount of transmission charge(s), if any, for firm transmission service upstream of the delivery point, which Seller incurred to achieve the Resale Price, less the reduction, if any, in transmission charge(s) achieved as a result of the reduction in Purchaser’s schedule or receipt of Energy (based on Seller’s
commercially reasonable efforts to achieve such reduction), subject to any limitations stated in the Confirmation. If the Purchaser refused to Accept Delivery of RECs but Accepted Delivery of Energy, then Purchaser shall pay Seller for such received Energy at the Resale Price of the Energy; if the Purchaser refused to Accept Delivery of Energy but
Accepted Delivery of RECs, the Purchaser shall pay Seller for Accepted RECs at an amount equal to the Contract Price less the Resale Price of the Energy.
Section 21.3(a)(2) of the Agreement is modified as follows:
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If Seller fails to Deliver to Purchaser in accordance with the Confirmation, then Seller shall be liable to the Purchaser for:
(a) the product of (i) and (ii) where (i) is the amount, if any, by which the Replacement Price exceeded the Contract
Price, and (ii) is the amount by which the quantity of RECs and Energy Delivered was less than the Contract Quantity; plus (b) the amount of transmission charge(s), if any, for firm transmission service downstream of the delivery point,
which Purchaser incurred to achieve the Replacement Price, less the reduction, if any, in transmission charge(s) achieved as a result of the reduction in Seller’s schedule or delivery of Energy (based on Purchaser’s commercially reasonable
efforts to achieve such reduction), plus (c) if an Applicable Program is specified, the amount, if any, of penalties and alternative compliance payments a Governmental Authority required Purchaser to pay due to Seller’s non-performance, and which penalties or alternative compliance payments are no longer subject to judicial review, subject to any
limitations on such amounts stated in the Confirmation. In the event Seller Delivers Energy but not RECs, and
regardless of Purchaser’s receipt of Energy, Purchaser shall not be required to pay Seller for such Energy.
(b) Price Allocated between REC and Energy. This Section R-
9.1.2(b) applies to REC Transactions for Firm Bundled REC, ATTACHMENT 1
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Resource Contingent Bundled REC, and Facility As-Run
Bundled REC, in which the Confirmation sets forth an allocation of the Contract Price between the REC and energy.
(i) If Purchaser refuses to Accept Delivery of RECs in
accordance with the Confirmation, then Purchaser shall
be liable to Seller as set forth in Section R-9.1.1.
(ii) Subject to part (v) of this Section, if Seller fails to Deliver RECs in accordance with the Confirmation, then
the Seller shall be liable to Purchaser as set forth in Section R-9.1.1.
(iii) If Purchaser refuses to receive Delivery of Energy in accordance with the Confirmation, then Section 21.3(a)
of the Agreement shall apply as set forth in the
Agreement without modification by this Service
Schedule R.
(iv) If Seller fails to Deliver Energy in accordance with the Confirmation, then Section 21.3(a) of the Agreement
shall apply as set forth in the Agreement without
modification by this Service Schedule R.
(v) In the event Seller Delivers Energy but fails to Deliver RECs, and regardless of Purchaser’s receipt of Energy,
Purchaser shall not be required to pay Seller for such
Energy.
R-10 Other Modifications of the Agreement for REC Transactions.
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R-10.1 Revised Agreement Definitions. For purposes of REC Transactions, the following revisions to definitions contained in Section 4 of the Agreement shall apply:
R-10.1.1 Contract Quantity: The amount of RECs and, if applicable, Energy, to be supplied for a transaction under the Agreement.
R-10.1.2 Power Marketer: An entity which buys, sells, and takes title to RECS, electric energy, transmission and/or other services from traditional utilities and other suppliers.
R-10.1.3 Physically Settled Option: Includes (i) a call option which is the right, but not the obligation, to buy an underlying REC and/or power product as defined under Service Schedule R according to the price and exercise terms set forth in the Confirmation; and (ii) a put option which is the right, but not the obligation, to sell an underlying REC or power product as defined under Service Schedule R according to the price and exercise terms set forth in the Confirmation.
R-10.1.4 Replacement Price: The price at which the Purchaser, acting in a commercially reasonable manner, effects a purchase of substitute REC(s), capacity and/or energy in place of the REC(s), capacity and/or energy not Delivered (for REC(s) and/or energy) or made available (for capacity only) by the Seller or, absent such a purchase, the market price for such quantity of REC(s), capacity and/or energy, as determined by the Purchaser in a commercially reasonable manner, for Energy at the delivery point specified in the Confirmation. Substitute REC(s) must ATTACHMENT 1
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be similar in all material respects to the REC(s) specified in the Confirmation.
R-10.1.5 Resale Price: The price at which the Seller, acting in a commercially reasonable manner, effects a resale of the REC(s), capacity and/or energy not received by the Purchaser or, absent such a resale, the market price for such quantity of REC(s), capacity and/or energy, as determined by the Seller in a commercially reasonable manner, for Energy at the delivery point specified for the transaction in a Confirmation.
R-10.2 Notices. Section 12.2 of the Agreement is revised by inserting “RECs or” before the phrase “capacity and/or energy.”
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SERVICE SCHEDULE R
ANNEX 1 - DEFINITIONS
“Acceptance” has the meaning given in Sections R-3.1.2 or R-3.2.2, as applicable. “All Attributes” has the meaning given in Section R-2.4.1. “Applicable Program” means (a) a program adopted by a Governmental Authority that requires the sale, purchase, or use of energy generated or produced by a facility that converts renewable natural resources such as wind, sunlight, rain, tides, geothermal heat, hydro, or biomass into electric energy, including any Renewable Portfolio Standard (RPS) adopted by a Governmental Authority and all Governing Law that pertains thereto, or (b) a voluntary program for reporting, crediting or attributing RECs and all rules, standards and procedures adopted by the administering organization that pertain thereto.
“Attestation” means (a) the Seller’s written statement, certified as true and correct by an authorized officer of Seller, that the REC is Delivered and title to the REC has been transferred to the Purchaser, and that the Seller has taken all steps to effect transfer of the REC required by any Tracking System designated in the Confirmation, and (b) that satisfies the requirements of any Applicable Program designated in the Confirmation or is a generation information system record of ownership transfer. Annex 2 Exhibit 1 is a template for use of the Parties; an agreed form of Attestation should be included as a part of the Confirmation, and the agreed form will suffice as an Attestation regardless of whether or not it meets the criteria of this definition.
“Change in Law” has the meaning given in Section R-5.2.2(a).
“Deliver” has the meaning given in Sections R-3.1.1 or 3.2.1, as applicable.
“Effective Date” means the date both Parties have executed the Confirmation, or which the Parties otherwise specify in the Confirmation.
“Environmental Attribute” means the following, unless a Tracking System is designated in the Confirmation, and such Tracking System defines “Environmental Attribute,” in which case the Tracking System’s definition of “Environmental Attribute” shall control: a characteristic concerning or affecting the environment created by or resulting from the generation of electric energy by a Renewable Energy Source, and which capable of measurement, verification, or calculation. The term does not include tax credits or other tax benefits under any law or other direct third-party subsidies for generation of electric energy by a Renewable Energy Source. The term includes “non-energy attributes” under Oregon law and “non-power attributes” under Washington law. By way of example, the term may include the following: avoided emissions of CO
2 or other gases, or avoided water use (but not water or other rights or credits required under an Applicable Program to site and develop the Renewable Energy Facility itself).
“Facility As-Run REC” has the meaning given in Section R-2.3.5.
“Facility As-Run Bundled REC” has the meaning given in Section R-2.3.6(a).
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“Firm Bundled REC” has the meaning given in Section R-2.3.2.
“Energy” in the case of a Firm Bundled REC refers to Firm Capacity/Energy Sale or Exchange Service under Service Schedule C as may be modified by Service Schedule R, in the case of a Resource Contingent Bundled REC refers to Unit Commitment Service under Service Schedule B as may be modified by Service Schedule R, and in the case of Facility As-Run Bundled REC refers to Economy Energy Service under Service Schedule A as may be modified by Service Schedule R.
“Firm REC” has the meaning given in Section R-2.3.1.
“Fuel Impediment” means the reduction or lack of wind or sunlight, excessive wind, or other insufficiency or excess of a Renewable Energy Source (excluding biomass), that causes a reduction or cessation of generation of electric energy by a Renewable Energy Facility.
“Forced Outage” means the removal from service availability of a generating unit, transmission line, or other facility for emergency reasons, or the condition in which the equipment is unavailable due to unanticipated failure (such unanticipated failure does not include a Fuel Impediment).
“Governing Law” has the meaning given in Section 24 of the Agreement as that Section may be modified by Section R-5.1.
“Governmental Authority” means the United States, a State thereof, any political subdivision or governmental body thereof, including any department or agency, with jurisdiction over a Party or an Applicable Program.
“Not Regulatorily Continuing” has the meaning given in Section R-5.2.2(b).
“Program Attributes” has the meaning given in Section R-2.4.2.
“Regulatorily Continuing” has the meaning given in Section R-5.2.2(a).
“REC” refers to a renewable energy certificate and means a credit or certificate representing Environmental Attributes created by or resulting from the generation of one (1) megawatt hour of electric energy by a Renewable Energy Source, subject to the terms and conditions stated in the Confirmation.
“REC Product” has the meaning given in Section R-2.2.
“REC Transaction” has the meaning given in Section R-2.1.
“Resource Contingent REC” has the meaning given in Section R-2.3.3.
“Resource Contingent Bundled REC” has the meaning given in Section R-2.3.4(a).
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“Renewable Energy Facility” means an electric generation unit or other facility or installation capable of producing or emitting electric energy using a Renewable Energy Source.
“Renewable Energy Source” means (a) a resource that is recognized as a renewable energy source under an Applicable Program designated in the Confirmation, or (b) if no Applicable Program is designated in the Confirmation, a natural resource from or through which electric energy can be generated, including wind, solar, geothermal, landfill gas, wave, tidal, thermal ocean technologies, and hydroelectric power, and excluding fossil carbon-based, non-renewable, or radioactive fuel.
“Reporting Rights” means the right to report and register the exclusive ownership of the REC or Environmental Attributes under Governing Law or any other laws, regulations, orders or judicial precedents of the government of the United States of America or any department or agency thereof, or any State or political subdivision thereof, including mandatory and voluntary reporting, and including reporting under section 1605(b) of the Energy Policy Act of 1992 and any foreign or international emissions trading or reporting program.
“Scheduled Maintenance” means an outage or partial outage scheduled to perform the necessary normal maintenance on a generating unit, transmission line, or other facility to preserve the reliability of the unit or overall system reliability, including scheduled outages for such maintenance.
“Tracking System” means the entity, if any, the Parties designated in the Confirmation that will perform REC tracking and accounting functions, including receiving evidence of generation of the REC and crediting the resulting REC to the Purchaser’s account.
“Transfer Date” means the date specified in the Confirmation, no later than which Seller must make Delivery as defined in Sections R-3.1.1 or R-3.2.1, as applicable.
“Vintage” means the period in which the REC was or will be created.
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SERVICE SCHEDULE R ANNEX 2
FORM OF
REC TRANSACTION CONFIRMATION
IDENTIFICATION OF PARTIES
Name of Seller: Name of Purchaser:
_______________________________ ____________________________________
Seller Information: Purchaser Information:
_______________________________ _______________________________ Contact Contact
Tel (O): _____________________ Tel (O): ___________________
Tel (Cell): _____________________ Tel (Cell): ___________________
E-mail: ________________________ E-mail: ________________________
Fax: ________________________ Fax: ________________________
Contact information is subject to change by notice.
ADDRESSES FOR FORMAL NOTCES:
Purchaser: Seller
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
INCORPORATED DOCUMENTATION (any “long form” or other bilateral agreements between the Parties applicable to this Confirmation and incorporated herein)
________________________________________________________________
REC TRANSACTION TERMS
REC Product (e.g., Firm REC, Firm Bundled REC, etc.) (see Section R-2.3):
__________________________________________________________ ATTACHMENT 1
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Vintage of REC already created or period of generation for REC to be created (mm/yyyy)
__________________________________________________________
Contract Quantity (stated either on a megawatt hour basis or percentage of output of a designated Renewable Energy Facility)
____________________
Transfer Date (generally the Effective Date of this Confirmation for REC that already exists, and future date for REC to be generated after Effective Date)
____________________
Contract Price:
___________________
Allocation, if agreed:
REC:
_________________________
Energy:
_________________________
Environmental Attributes (Check One)
□ All Attributes (this designation is effective only if a Renewable Energy Source or Renewable Energy Facility is designated below)
□ Program Attributes (this designation is effective only if an Applicable Program is identified below) (Note: WREGIS and possibly other Tracking Systems will not recognize a Program Attributes REC, or may treat it as an All Attributes REC)
Applicable Program (required for Program Attributes; not required for All Attributes, but designation establishes the minimum Environmental Attributes required by a designated Applicable Program). Also required for recovery of penalties and alternative compliance payments (Section R-9.1). Designation should include detailed information, including any applicable legal citations, to assure adequate description of the program. ______________________________________________________________
Designation of Renewable Energy Source or Renewable Energy Facility (required for All Attributes).
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Renewable Energy Source: ___________________________________________
Renewable Energy Facility
Name: _______________________
Location: ___________________________________
Generation Information System number: _________________
Tracking System number: ________________________
Fuel (wind, solar, etc.: __________________
Change in Law Provisions (Check One)
□ Regulatorily Continuing (Section R-5.2.2(b), requiring that Seller make commercial reasonable efforts to obtain compliance with Changes in Law in the designated Applicable Program. If checked, state any agreed maximum costs of such efforts (if no maximum is stated, then no maximum applies):
$______________
□ Not Regulatorily Continuing (Section R-5.2.2(c)).
Tracking System(s) if any: (if none specified, then Delivery occurs by Attestation and not by Tracking System crediting)
Damages. Damages include reimbursement for penalties and alternative compliance payments, subject to any agreed cap on this damages component, which can be zero (Section R-9.1):
$ __________________
Any agreements concerning forward certificates in WREGIS or other Tracking System Expedition ) (Section R-3.3.1):
_______________________________________________________________
TERMS APPLICABLE TO ENERGY IF INCLUDED IN REC PRODUCT
Period (Schedule) of Delivery: From __\__\__ To __\__\__ Schedule (Days and Hours): __________________
Delivery Rate:________________________________
Delivery Point(s): __________________________
Contract Quantity (specify all details): _______________ ATTACHMENT 1
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Transmission Path for the Transaction (If Applicable):__________________
EFFECTIVE DATE AND OTHER PROVISIONS
Effective Date (no earlier than mutual execution of this Confirmation) ______________________________
Other provisions: ________________________________________________ [generally stated in attachment to the Confirmation]
The Parties agree to the REC Transaction set forth herein as of the Effective Date
Seller Purchaser
Signed: __________________________
Name: ___________________________
Signed: ____________________________
Name: ____________________________
Date: _______________________ Date: _____________________
ATTACHMENT 1
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ANNEX 2, Exhibit 1
Form of Attestation To Be Included As Exhibit To Confirmation
Attestation Of [Seller] (“REC Generator”)
Of Sale, Transfer, and Delivery Of Renewable Energy Certificate to [Purchaser] “Purchaser”
Party and Contact Information:
[Insert names and addresses of Parties, address, and contact information] Attestation:
I, [name of attesting officer], the [title] of Seller, declare and certify that Seller sold and delivered
Elect one:
___ Environmental Attributes Only
___ Bundled with electricity
to Purchaser, and further, that
1. Was generated by the Renewable Energy Facility (“REF”) designated below and sold, transferred and delivered, subject to receipt of payment, to Purchaser.
2. Is associated with electricity delivered into the [insert delivery area] in compliance with applicable energy delivery rules.
REF
Generator
Name and
Number
Technology
Type
Fuel Type
(Renewable
Energy
Source)
Generation
Period
(mm/yy)
Generator First
Day of Operation
The above statements are true and correct to the best of my knowledge, and based on my duly diligent inquiry. This Attestation may serve as a Bill of Sale to document, in accordance with the Confirmation, the transfer from Generator to Purchaser of all of Seller’s right, title and interest in and to the REC and environmental attributes it represents, as set forth above.
Either Party may disclose this Attestation to others, including a Tracking System, public utility commissions and other regulatory bodies having jurisdiction over Purchaser, and administrators of voluntary green energy programs, to substantiate and verify the accuracy of the Parties’ compliance, advertising and public claims.
Signature:
___________________________ Date ____________________
Print Name: ___________________________
ATTACHMENT 1
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SCHEDULE Q
FERC ACCEPTED SELLER-SPECIFIC COST-BASED RATE SCHEDULES
Note: Each rate schedule included in this Schedule Q is applicable solely to the Member which submitted that rate schedule to FERC, and not to any other Member.
INDEX
Name of Member FERC Order Re Underlying Rate Schedule
Arizona Public Service Company Letter Order, Docket No. ER16-1877-000 (July 15, 2016)
Nevada Power Company Letter Order, Docket No. ER11-1832-000 (Nov. 23, 2010)
PacifiCorp Letter Order, Docket No. ER16-1964-000 (Aug. 16, 2016)
Public Service Company Letter Order, Docket No. ER15-678-000 (Feb. 4, 2015) of Colorado
Sierra Pacific Power Company Letter Order, Docket No. ER14-1420-000 (Apr. 15, 2014)
Southwestern Public Service Letter Order, Docket No. ER08-857-001 (Aug. 28, 2008) Company
Westar Energy, Inc. Letter Order, Docket No. ER11-3233-000 (May 26, 2011)
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WSPP AGREEMENT SCHEDULE Q FOR ARIZONA PUBLIC SERVICE COMPANY
Determination of Ceiling Rates Applicable to Sales Made by Arizona Public Service Company Under the WSPP Agreement
I. DEFINITIONS
The following terms shall have the specified meaning when used in any Transaction between Arizona Public Service Company (“APS”) and any Customer pursuant to this Cost-Based Tariff (“Tariff”):
1. APS: Arizona Public Service Company or any successor-in-interest to Arizona Public Service Company.
2. Commission: The Federal Energy Regulatory Commission, or any successor federal agency having jurisdiction over this tariff.
3. Customer: Any entity entering into a Transaction with APS under this Tariff.
4. System Incremental Cost: (“SIC”) System Incremental Cost means, with respect to a Transaction, all reasonably forecasted incremental generation, power purchase, and other, related costs that APS would not otherwise incur if such Transaction is not entered into. System Incremental Cost shall include, but not be limited to, costs associated with fuel, labor, variable operation and maintenance, start-up, shut- down, fuel handling, regulatory commission charges, emission allowance and other environmental compliance costs, transmission losses, wheeling charges, any applicable taxes or assessments based on the revenues received or quantities sold under the Transaction, and with respect to capacity and energy purchased from a third party, the total forecasted amount that would be paid for that capacity and energy by APS. For purchases of energy and capacity by APS, System Incremental Cost will also include, but not be limited to, regulatory commission charges, emission allowances, transmission losses, wheeling charges and taxes.
5. Tariff: This Cost-Based Tariff, as it may be amended and/or superseded from time to time.
6. Transaction: An individual transaction scheduled pursuant to this Tariff.
7. Party: References to a Party shall mean either APS or the Customer, who collectively shall be referred to as “Parties.”
II. AVAILABILITY
Service under this Tariff shall be available to Customers for Transactions that have a duration as agreed to by the Parties under the Service Agreement.
III. SALES OF ELECTRIC CAPACITY AND/OR ENERGY
APS and Customers may enter into Transactions under this Tariff from time-to-time. All ATTACHMENT 1
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such Transactions shall be voluntary on the part of APS and the Customer(s). APS at its sole discretion will determine the amounts of and times that electric capacity and/or energy is to be made available under this Tariff prior to entering into a Transaction.
IV. RATES
1. A Transaction will be priced at rates established by agreement between Seller and Buyer, provided that the sum of all charges with respect to each Transaction may be up to but shall not exceed the sum of:
a) A demand charge, equal to, as appropriate:
i. $9,233 /MW/month;
ii. $2,131 /MW/week;
iii. $426 /MW/day, provided the total demand charge in any week, pursuant to a sale of daily electric power, shall not exceed the weekly rate times the highest amount in
megawatts of purchased electric power in any day during such week; or
iv. $26.63 /MW/hour, provided that the total demand charge in any day, pursuant to a sale of hourly electric power, shall not exceed the daily rate times the highest amount in megawatts of purchased electric power in any hour
during such day, and the total demand charges in any
week, pursuant to a sale of hourly or daily electric power, shall not exceed the weekly rate times the highest
amount in megawatts of purchased electric power in any
such week; and
b) The System Incremental Cost, forecasted at the time the Transaction is executed, plus 10% of the forecasted System Incremental Cost; and c) The cost of transmission service and any ancillary services purchased by APS and resold to Customer, as known or forecasted at the time the Transaction is executed.
V. EXPANSION OF FACILITIES
APS will have no obligation under this Tariff to plan its system or modify its facilities in order to provide service hereunder.
VI. OTHER TERMS AND CONDITIONS
Except to the extent otherwise specifically agreed to by the Parties, all Transactions under APS’s Schedule Q shall be governed by the terms and conditions set forth in the WSPP Agreement.
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COST-BASED RATE SCHEDULE
FOR
PACIFICORP
Determination of Ceiling Rates Applicable to Cost-Based Sales Made by PacifiCorp
1. The following rates shall be applicable to any cost-based sale of power and/or energy made by PacifiCorp (1) pursuant to the applicable terms and conditions of the WSPP Agreement, including under Service Schedule A (Economy Energy Service), Service Schedule B (Unit Commitment Service), and Service Schedule C (Firm Capacity/Energy Sale or Exchange Service), and (2) for a term of less than one year.
2. The rates for any cost-based power and/or energy sale made by PacifiCorp pursuant to the applicable terms and conditions of the WSPP Agreement from PacifiCorp’s generating resources shall not exceed the following:
(i) Maximum Demand Charge:
The Maximum Demand Charge shall be capped using the following methodology:
Units Most Likely To Participate Methodology
Monthly Up to $11,317/MW
Weekly Up to $2,612/MW
Daily Up to $522/MW, provided, however, that the Daily rate of $522/MW shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $2,612/MW.
Hourly Up to $32.64/MW, provided, however, that the hourly rate of $32.64/MW shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum daily demand charge of $522/MW, and also not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $2,612/MW.
(ii) Energy Charge of 100% of SIC, plus up to 10% of SIC; and
(iii) All charges incurred for transmission service, ancillary services, and transmission losses.
3. If PacifiCorp enters into a purchased power transaction specifically for the purpose of reselling such power hereunder, the rates shall not exceed the sum of the following:
ATTACHMENT 1
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(i) PacifiCorp’s out-of-pocket costs of purchasing such capacity and/or energy, including all related charges incurred for transmission service, ancillary services, transmission losses and any applicable taxes or other similar governmental impositions; and
(ii) $1.00 per megawatt-hour multiplied by the total megawatt-hours scheduled.
4. System Incremental Costs (“SIC”) means all reasonably forecasted costs of such power and/or energy and which otherwise would not have been incurred by PacifiCorp including, but not limited to, costs associated with fuel, labor, variable operation and maintenance, start-up, shut-down, fuel handling, taxes or other similar governmental impositions, regulatory commission charges, emission allowances and other environmental compliance costs.
5. Purchasers in cost-based transactions shall also be responsible for any taxes, purchased power costs, and for any other costs incurred by PacifiCorp in fulfilling its obligations for the provision of power and/or energy under the WSPP Agreement, which cost would otherwise not have been incurred, had such service not been provided.
ATTACHMENT 1
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WSPP AGREEMENT SCHEDULE Q FOR NEVADA POWER COMPANY
Determination of Ceiling Rates Applicable to Cost-Based Sales Made by Nevada Power Company
1. The following rates shall be applicable to any cost-based sale of power and/or energy made by Nevada Power Company, d/b/a NV Energy (“Nevada Power”) (1) pursuant to the applicable terms and conditions of the WSPP Agreement, including under Service Schedule A (Economy Energy Service), Service Schedule B (Unit Commitment Service), and Service Schedule C (Firm Capacity/Energy Sale or Exchange Service), (2) at a delivery point located within the Nevada Power balancing authority area, and (3) for a term of less than one year.
2. The rates for any cost-based power and/or energy sale made by Nevada Power pursuant to the applicable terms and conditions of the WSPP Agreement from Nevada Power’s generating resources shall not exceed the following:
(i) Maximum Demand Charge:
The Maximum Demand Charge shall be capped using the following methodology:
Units Most Likely To Participate Methodology
Monthly Up to $8,390/MW
Weekly Up to $1,940/MW
Daily Up to $390/MW, provided, however, that the Daily rate of $390/MW shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $1,940/MW.
Hourly Up to $24.40/MW, provided, however, that the hourly rate of $24.40/MW shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum daily demand charge of $390/MW, and also not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $1,940/MW.
(ii) Energy Charge of 100% of SIC, plus up to 10% of SIC; and
(iii) All charges incurred for transmission service, ancillary services, and transmission losses.
3. If Nevada Power enters into a purchased power transaction specifically for the purpose of reselling such power hereunder, the rates shall not exceed the sum of the following:
(i) Nevada Power’s out-of-pocket costs of purchasing such capacity and/or energy, including all related charges incurred for transmission service, ancillary services, transmission losses and any applicable taxes or other similar governmental impositions; and
(ii) $1.00 per megawatt-hour multiplied by the total megawatt-hours scheduled.
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4. System Incremental Costs (“SIC”) means all reasonably forecasted costs of such power and/or energy and which otherwise would not have been incurred by Nevada Power including, but not limited to, costs associated with fuel, labor, variable operation and maintenance, start-up, shut-down, fuel handling, taxes or other similar governmental impositions, regulatory commission charges, emission allowances and other environmental compliance costs.
5. Purchasers in cost-based transactions shall also be responsible for any taxes, purchased power costs, and for any other costs incurred by Nevada Power Company in fulfilling its obligations for the provision of power and/or energy under the WSPP Agreement, which cost would otherwise not have been incurred, had such service not been provided.
ATTACHMENT 1
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WSPP AGREEMENT SCHEDULE Q FOR PUBLIC SERVICE COMPANY OF
COLORADO
Determination of Ceiling Rates Applicable to Sales Made by Public Service Company of Colorado under the WSPP Agreement
1. The following rates shall be applicable to any cost-based sale of power and/or energy made by Public Service Company of Colorado (“Public Service”) (1) pursuant to the WSPP Agreement, including under Service Schedule A (Economy Energy Service), Service Schedule B (Unit Commitment Service), and Service Schedule C (Firm Capacity/Energy Sale or Exchange Service) and (2) at a delivery point located within the Public Service balancing authority area.
2. The rates for any cost-based power and/or energy sale made pursuant to the WSPP Agreement from certain Public Service generation resources shall not exceed the following:
Maximum Demand Charge:
The Maximum Demand Charge shall be capped at either of the following methodologies:
Units Most Likely to Participate Methodology
Annual $123.73/kW
Monthly $10.62/kW
Weekly $2.45/kW
Daily $0.49/kW, provided, however, that the Daily rate of $0.49/kW shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $2.45/kW.
Hourly $0.0306/kW, provided, however, that the hourly rate of $0.0306/kW shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum daily demand charge of $0.49/kW, and also not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $2.45/kW.
Unit Revenue Constraint Methodology
Annual $265.72/kW
Monthly $22.14/kW
Weekly $5.11/kW
Daily $1.02/kW, provided, however, that the Daily rate of $1.02/kW shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $5.11/kW.
Hourly $0.0639/kW, provided, however, that the hourly rate of $0.0639/kW ATTACHMENT 1
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shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum daily demand charge of 1.02/kW, and also not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $5.11/kW.
Note: The total amount of Power available for cost-based sales by Public Service based on the costs of Comanche 3 under the WSPP Agreement and under other Public Service tariffs and arrangements, for which the agreed upon demand charge is determined based on Comanche 3, is limited to 500 MWs on an hourly basis.
Plus:
Energy Charge:
(a) no less than 100% of Public Service’s System Incremental Costs (SIC); plus (b) up to 10% of SIC, provided, however, that whenever the SIC for an hour is based on purchased power, the 10% mark up shall be limited to one mill/kWh.
Note: The total charges for any sale by Public Service using the Maximum Demand Charge as determined based on the Unit Revenue Constraint Methodology shall not exceed (1) the product of the requested demand (kW) multiplied by the applicable Maximum Demand Charge using the Unit Revenue Constraint Methodology as specified above, plus the variable costs of Comanche 3 (based on the most recent historical month where Comanche 3 was operational at least 80 percent of the time), and (2) be lower than a floor equal to 100% of Public Service’s System Incremental Cost.
3. When a cost-based sale of power and/or energy made by Public Service under the WSPP Agreement is conditioned upon Public Service acquiring purchased power, Purchaser shall pay the following amounts to Public Service for power and energy:
(a) Public Service’s actual purchased power costs; plus (b) a one mill adder for transactions of less than one year in duration.
4. Purchasers in cost-based transactions shall also be responsible for any taxes, purchased power costs, and for any other costs incurred by Public Service in fulfilling its obligations for the provision of power and/or energy under the WSPP Agreement, which otherwise would not have been incurred, had such service not been provided.
5. For purposes of this Schedule Q, “Purchased Power” means the Power and Energy purchased from a third party by Public Service and shall consist of the total amount paid therefor by Public Service associated with such purchase, plus any cost which otherwise ATTACHMENT 1
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would not have been incurred, including, but not limited to, regulatory commission charges, transmission losses, third-party transmission charges, and taxes, fees or assessments related to such transactions. Tax expenses shall include the expenses that are incurred as taxes either in connection with the sale or production of such Power and Energy.
The term Purchased Power shall not apply to long-term purchases that are secured to supply Public Service’s obligation load requirements as a system resource or to meet other regulatory requirements.
6. For purposes of this Schedule Q, System Incremental Costs (“SIC”) 1 shall be determined
as follows:
SIC are any costs forecasted to be incurred by Public Service solely by reason of its provision of an incremental amount of coordination-type energy to supply to another company, including but not limited to, costs for fuel, reactant, labor, operation, maintenance, start-up, fuel handling, taxes, emission allowances, and services provided by RTOs, ISOs, or other transmission providers such as transmission and ancillary services and losses. Such costs may also include costs paid to third parties where Public Service has an existing contractual entitlement to purchase energy.
For intraday (real-time) transactions, incremental cost is determined through a review of hourly system characteristics.
For non-intraday transactions, incremental cost is determined by using a resource optimization model such as, but not limited to ProSym or GenTrader.
The forecasted incremental cost represents the relative increase in total variable cost, in comparison to the previously determined base variable cost. Public Service forecasts incremental costs on a monthly, daily and hourly basis in order to evaluate whether it would be economic to engage in a wholesale sale of coordination energy. 2 In order for
Public Service to transact, and sell power to another entity, the purchaser must be willing to pay no less than the forecasted incremental cost for the period during which the energy is sold. It is necessary to use forecasted costs because transactions are entered into in the market in advance. The forecast incremental costs for Public Service utilize its unique portfolio resources, applicable fuel costs and generation characteristics.
Monthly forecasted incremental variable costs are developed utilizing an optimization and unit commitment model. Generation characteristics such as forecasted fuel prices, effective heat rates, system penalty factors, start-up costs, unit parameters (e.g., minimum run time, dispatch minimum, dispatch maximum), variable O&M, and tolling costs are utilized in the model to establish the base cost to serve a forecasted amount of obligation (load and the net of applicable firm purchase and sales transactions). Planned and forced outages are also considered in the model. Additional obligations are added to the model (consistent with blocks traded in the market), and the optimized costs are returned. The difference in costs between the first and second run, i.e., with and without an incremental transaction or load addition, will represent the incremental cost to serve the additional obligation. The ATTACHMENT 1
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forecasted incremental cost to serve the additional obligation will establish the minimum price required in order to engage in a sale of similar energy volume.
Daily forecasted incremental costs are developed utilizing a unit commitment and optimization program. The best available generation characteristics are utilized in the model to forecast the base cost to serve the next-day obligation. Additional obligations are applied and system costs evaluated to establish the forecasted cost to serve a potential incremental sale.
On an hourly basis, the system operator forecasts the incremental cost to serve an additional obligation by evaluating current and short-term forecast system conditions and the resources that are not previously allocated to meet established obligations. If additional portfolio resources are available (not allocated for native load requirements), the system operator will evaluate the comprehensive cost to produce the quantity of energy needed for an incremental sale.
If the Parties to a transaction under this WSPP Agreement expressly agree in a transaction agreement, incremental costs may be determined in the same manner as specified above, but on an after-the-fact, actual basis.
Note 1: The Commission previously accepted this incremental rate methodology in Xcel Energy Services, Inc., et al., 117 FERC ¶ 61,180, at PP 45-49 (2006).
Note 2: The Commission has found this approach to be acceptable. See, e.g., Western Systems Power Pool , 55 FERC ¶ 61,495, at 62,718 (1991) (noting that incremental cost “may be forecasted hourly, weekly, or monthly”).
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WSPP AGREEMENT SCHEDULE Q FOR SIERRA PACIFIC POWER COMPANY
Determination of Ceiling Rates Applicable to Cost-Based Sales Made by Sierra Pacific Power Company
1. The following rates shall be applicable to any cost-based sale of power and/or energy made by Sierra Pacific Power Company, d/b/a NV Energy (“Sierra”) (1) pursuant to the applicable terms and conditions of the WSPP Agreement, including under Service Schedule A (Economy Energy Service), Service Schedule B (Unit Commitment Service), and Service Schedule C (Firm Capacity/Energy Sale or Exchange Service), (2) at a delivery point located within the Nevada Power Company balancing authority area (“NEVP”), and (3) for a term of less than one year.
2. The rates for any cost-based power and/or energy sale made by Sierra pursuant to the applicable terms and conditions of the WSPP Agreement from Sierra’s generating resources shall not exceed the following:
(i) Maximum Demand Charge:
The Maximum Demand Charge shall be capped using the following methodology:
Units Most Likely To Participate Methodology
Monthly Up to $9,810/MW
Weekly Up to $2,260/MW
Daily Up to $450/MW, provided, however, that the Daily rate of $450/MW shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $2,260/MW.
Hourly Up to $28.10/MW, provided, however, that the hourly rate of $28.10/MW shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum daily demand charge of $450/MW, and also not exceed the product of the number of kilowatts sold for a week multiplied by the maximum weekly demand charge of $2,260/MW.
(ii) Energy Charge of 100% of SIC, plus up to 10% of SIC; and
(iii) All charges incurred for transmission service, ancillary services, and transmission losses.
3. If Sierra enters into purchased power transaction specifically for the purpose of reselling such power hereunder, the rates shall not exceed the sum of the following:
(i) Sierra’s out-of-pocket costs of purchasing such capacity and/or energy, including all related charges incurred for transmission service, ancillary services, transmission losses and any applicable taxes or other similar governmental ATTACHMENT 1
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impositions; and
(ii) $1.00 per megawatt-hour multiplied by the total megawatt-hours scheduled.
4. System Incremental Costs (“SIC”) means all reasonably forecasted costs of such power and/or energy and which otherwise would not have been incurred by Sierra including, but not limited to, costs associated with fuel, labor, variable operation and maintenance, start- up, shut-down, fuel handling, taxes or other similar governmental impositions, regulatory commission charges, emission allowances and other environmental compliance costs.
5. Purchasers in cost-based transactions shall also be responsible for any taxes, purchased power costs, and for any other costs incurred by Nevada Power Company in fulfilling its obligations for the provision of power and/or energy under the WSPP Agreement, which cost would otherwise not have been incurred, had such service not been provided.
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WSPP AGREEMENT SCHEDULE Q FOR SOUTHWESTERN PUBLIC SERVICE
COMPANY
Determination of Ceiling Rates Applicable to Sales Made by Southwestern Public Service Company under the WSPP Agreement
1. The following rates shall be applicable to any cost-based sale of power and/or energy made by Southwestern Public Service Company (“SPS”) (1) pursuant to the WSPP Agreement, including under Service Schedule A (Economy Energy Service), Service Schedule B (Unit Commitment Service), and Service Schedule C (Firm Capacity/Energy Sale or Exchange Service and (2) at a delivery point located within the SPS balancing authority area.
2. The rates for any cost-based power and/or energy sale made pursuant to the WSPP Agreement from SPS generation resources shall not exceed the following:
Maximum Demand Charge:
Monthly $ 7.56/kW
Weekly $ 1.745/kW
Daily (On-peak) $ 0.349/kW, provided, however, that the Total Weekly charges for a customer paying the Daily rate of $0.349/kW (on-peak) or $0.249 (off-peak) shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum Weekly demand charge of $1.745/kW.
Daily (Off-peak) $ 0.249/kW
Hourly $ 21.813/MW, provided, however, that the Total Daily charges for a customer paying the Hourly rate of $21.813/MW shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum Daily (on-peak) demand charge, and total Weekly charges for such a customer shall not exceed the product of the number of kilowatts sold for a week multiplied by the maximum Weekly demand charge of $1.745/kW.
plus
Energy Charge:
(a) no less than 100% of SPS’s System Incremental Costs (SIC); plus (b) up to 10% of SIC, provided, however, that whenever the SIC for an hour is based on purchased power, the 10% mark up shall be limited to one mill/kWh.
Note A: The total charges for any cost-based sale under the WSPP Agreement shall not exceed the product of the requested demand (kW) multiplied by the applicable Maximum Demand Charge in this Section 1, plus the variable costs of Lea Power Partners (based on the second previous month’s cost data), and not withstanding ATTACHMENT 1
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the foregoing, a floor equal to 100% of SPS’s System Incremental Cost.
Note B: The total amount of Power available for cost-based sales by SPS under the WSPP Agreement and under other SPS tariffs and agreements for which the agreed upon demand charge is determined based on Lea Power Partners is limited to 600 MWs on an hourly basis.
3. When a cost-based sale of power and/or energy made by SPS under the WSPP Agreement is conditioned upon SPS acquiring Purchased Power, Purchaser shall pay the following amounts to SPS for power and energy:
(a) SPS’s actual Purchased Power costs; plus
(b) a one mill adder for transactions of less than one year in duration.
4. Purchasers in cost-based transactions shall also be responsible for any taxes, purchased power costs, and for any other costs incurred by SPS in fulfilling its obligations for the provision of power and/or energy under the WSPP Agreement, which otherwise would not have been incurred, had such service not been provided.
5. For purposes of the WSPP Agreement, System Incremental Costs (“SIC”) shall be determined as follows:
SIC are any costs forecasted to be incurred by SPS solely by reason of its provision of an incremental amount of coordination-type energy to supply to another company, including but not limited to costs for fuel, reactant, labor, operation, maintenance, start-up, fuel handling, taxes, emission allowances, and services provided by RTOs, ISOs, or other transmission providers such as transmission and ancillary services and losses. Such costs may also include costs paid to third parties where the SPS has an existing contractual entitlement to purchase energy.
For intraday (real-time) transactions, incremental cost is determined through a review of hourly system characteristics.
For non-intraday transactions, incremental cost is determined by using a resource optimization model such as, but not limited to ProSym, Couger or GenTrader.
The forecasted incremental cost represents the relative increase in total variable cost, in comparison to the previously determined base variable cost. SPS forecasts incremental costs on a monthly, daily and hourly basis in order to evaluate whether it would be economic to engage in a wholesale sale of energy.2 In order for SPS to transact, and sell power to another entity, the purchaser must be willing to pay no less than the forecasted incremental cost for the period during which the energy is sold. It is necessary to use forecasted costs because transactions are entered into in the market in advance. The forecast incremental costs for SPS
2 The Commission has found this approach to be acceptable. See, e.g., Western Systems Power Pool, 55 FERC ¶ 61,495 at 62,718 (1991) (noting that incremental cost “may be forecasted hourly, weekly, or monthly”).
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utilize its unique portfolio resources, applicable fuel costs and generation characteristics.
Monthly forecasted incremental variable costs are developed utilizing an optimization and unit commitment model. Generation characteristics such as forecasted fuel prices, effective heat rates, system penalty factors, start-up costs, unit parameters (e.g., minimum run time, dispatch minimum, dispatch maximum), variable O&M, and tolling costs are utilized in the model to establish the base cost to serve a forecasted amount of obligation (load and the net of applicable firm purchase and sales transactions). Planned and forced outages are also considered in the model. Additional obligations are added to the model (consistent with blocks traded in the market), and the optimized costs are returned. The difference in costs between the first and second run, i.e., with and without an incremental transaction or load addition, will represent the incremental cost to serve the additional obligation. The forecasted incremental cost to serve the additional obligation will establish the minimum price required in order to engage in a sale of similar energy volume.
Daily forecasted incremental costs are developed utilizing a unit commitment and optimization program. The best available generation characteristics are utilized in the model to forecast the base cost to serve the next-day obligation. Additional obligations are applied and system costs evaluated to establish the forecasted cost to serve a potential incremental sale.
On an hourly basis, the system operator forecasts the incremental cost to serve an additional obligation by evaluating current system conditions and the resources that are not previously allocated to meet established obligations. If additional portfolio resources are available (not allocated for native load requirements), the system operator will evaluate the comprehensive cost to produce the quantity of energy needed for an incremental sale.
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WSPP AGREEMENT SCHEDULE Q FOR WESTAR ENERGY
Determination of Ceiling Rates Applicable to Cost-Based Sales Made by Westar Energy under the WSPP Agreement
1. The following rates shall be applicable to any cost-based sale of power and/or energy made by Westar Energy (“Westar”) (1) pursuant to the applicable terms and conditions of the WSPP Agreement, including under Service Schedule A (Economy Energy Service), Service Schedule B (Unit Commitment Service), and Service Schedule C (Firm Capacity/Energy Sale or Exchange Service) and (2) at a delivery point located within the Westar Energy balancing authority area.
2. The rates for any cost-based power and/or energy sale made by Westar Energy pursuant to the applicable terms and conditions of the WSPP Agreement from Westar Energy's generating resources shall not exceed the following:
(i) Maximum Demand Charge:
The Maximum Demand Charge shall be capped at either of the following methodologies:
Units Most Likely To Participate Methodology
Monthly Up to $13,520/MW
Weekly Up to $3,120/MW
Daily Up to $624/MW, provided, however, that the Daily rate of $624/MW shall not exceed the product of the number of
kilowatts sold for a week multiplied by the maximum
weekly demand charge of $3,120/MW.
Hourly Up to $39.00/MW, provided, however, that the hourly rate of $39.00/MW shall not exceed the product of the number of kilowatts sold for a day multiplied by the maximum daily demand charge of $624/MW, and also not exceed the
product of the number of kilowatts sold for a week
multiplied by the maximum weekly demand charge of
$3,120/MW.
(ii) Energy Charge of no less than 100% of SIC, plus up to 10% of SIC; and
(iii) All charges incurred for transmission service, ancillary services, and transmission losses.
3. If Westar Energy enters into a purchased power transaction specifically for the purpose of reselling such power hereunder, the rates shall not exceed the sum of the following:
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(i) Westar Energy's out-of-pocket costs of purchasing such capacity and/or energy, including all related charges incurred for transmission service, ancillary services, transmission losses and any applicable taxes or other similar governmental impositions; and
(ii) $1.00 per megawatt-hour multiplied by the total megawatt-hours scheduled.
4. System Incremental Costs (“SIC”) means all reasonably forecasted costs of such power and/or energy and which otherwise would not have been incurred by Westar Energy including, but not limited to, costs associated with fuel, labor, variable operation and maintenance, start-up, shut-down, fuel handling, taxes or other similar governmental impositions, regulatory commission charges, emission allowances and other environmental compliance costs.
5. Purchasers in cost-based transactions shall also be responsible for any taxes, purchased power costs, and for any other costs incurred by Westar Energy in fulfilling its obligations for the provision of power and/or energy under the WSPP Agreement, which cost would otherwise not have been incurred, had such service not been provided.
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LIST OF MEMBERS
3 Phases Renewables Inc.
3PR Trading, Inc.
AEP Energy Partners, Inc.
AES Redondo Beach, LLC
Aha Macav Power Service
Alameda Municipal Power
Albertsons Companies, Inc.
Alcoa Power Marketing LLC
AltaGas Ripon Energy Inc.
American Electric Power Service Corporation as agent for Indiana Michigan Power Company American Electric Power Service Corporation as agent for Public Service Company of Oklahoma and Southwestern Electric Power Company
Anahau Energy, LLC
Arizona Electric Power Cooperative, Inc.
Arizona Public Service Company
Arkansas Electric Cooperative Corp.
Associated Electric Cooperative, Inc.
Avangrid Renewables, LLC
Avista Corporation
Basin Electric Power Cooperative
Black Hills Power Inc.
Black Hills Wyoming, Inc.
Black Hills/Colorado Electric Utility Company, L.P.
Blythe Energy Inc.
Bolt Energy Marketing, LLC
Bonneville Power Administration
Boston Energy Trading and Marketing LLC
BP Energy Company
Brookfield Renewable Trading and Marketing LP
California Choice Energy Authority
California Department of Water Resources
California Power Holdings, LLC
CalPeak Power LLC
Calpine Energy Services, L.P.
Calpine Energy Solutions, LLC
Cargill Power Markets, LLC
Castleton Commodities Merchant Trading L.P.
Central Arizona Water Conservation District
Central Coast Community Energy
CFE International LLC
Chevron Power Holdings Inc.
Cheyenne Light, Fuel and Power
Citigroup Energy Inc.
City and County of San Francisco
City of Anaheim, Public Utilities Dept.
City of Azusa, California
City of Banning, California
City of Burbank, California
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City of Cerritos (Cerritos Electric Utility)
City of Colton, California
City of Corona Department of Water and Power
City of Farmington, New Mexico
City of Gillette
City of Glendale, California
City of Independence, Missouri
City of Industry
City of Iola, Kansas
City of Lancaster
City of Lodi Electric Utility
City of Mesa, Arizona
City of Moreno Valley, California
City of Palo Alto, California
City of Pasadena, California
City of Rancho Cucamonga, California
City of Redding, California
City of Riverside, California
City of Roseville, California
City of San José
City of Shasta Lake
City of Sikeston, Board of Municipal Utilities
City of St. George Energy Service Department
City of Vernon, California
City of Wathena, Kansas
Clatskanie People’s Utility District
Clean Energy Alliance
Clean Power Alliance of Southern California
Cleco Power LLC
Coast Mountain Hydro Limited Partnership
Colorado River Commission of Nevada
Colorado Springs Utilities
Columbia Power Corporation
Comision Federal de Electricidad
Commercial Energy of Montana Inc.
ConocoPhillips Company
Constellation NewEnergy, Inc.
Cooperative Energy, a Mississippi electric cooperative
Coso Geothermal Power Holdings, LLC
Covanta Energy Marketing, LLC
CP Energy Marketing (US) Inc.
Credit Suisse Energy LLC
CWP Energy, Inc.
Deseret G&T
Desert Harvest II, LLC
Direct Energy Business Marketing, LLC
Direct Energy Business, LLC
DTE Energy Trading, Inc.
Dynasty Power Inc.
Dynegy Marketing and Trade, LLC
Dynegy Power Marketing, LLC
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East Bay Commuity Energy Authority
East Bay Municipal Utility District
East Texas Electric Cooperative, Inc.
EDF Trading North America, LLC
El Paso Electric Company
Elk Hills Power, LLC
Empire District Electric Company
Energy Keepers, Inc.
Energy Unlimited, Inc.
Enersponse Inc.
ENGIE Energy Marketing NA, Inc.
Englehart CTP (US) LLC
ENMAX Energy Corporation
ENMAX Energy Marketing Inc.
Entergy Services, Inc. (also Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New Orleans, Inc., Entergy Texas, Inc.)
ETC Endure Energy L.L.C.
Eugene Water & Electric Board
Evergy Kansas Central, Inc.
Evergy Metro, Inc.
Evergy Missouri West, Inc.
Exelon Generation Company, LLC
FortisBC Inc.
Freepoint Commodities LLC
Freeport-McMoRan Cooper & Gold Energy Services, LLC
GenOn Energy Management, LLC
Golden Spread Electric Cooperative, Inc.
Golden State Water Company
Goldman Sachs Renewable Power Marketing LLC
Grand River Dam Authority
Grays Harbor Energy LLC
Great River Energy
Guzman Energy Partners LLC
Guzman Energy, LLC
Heartland Generation Ltd.
Hermiston Generating Company, L.P.
High Desert Power Project, LLC
Hinson Power Company, Inc.
Holy Cross Electric Association d/b/a Holy Cross Energy Idaho Falls Power
Idaho Power Company
Illinois Power Marketing Company
Imperial Irrigation District
Inland Empire Energy Center LLC
J. Aron & Company
J.P. Morgan Ventures Energy Corporation
Jonesboro City Water and Light
Just Energy Solutions Inc.
Kansas City Board of Public Utilities
Kansas Power Pool
La Paloma Generating Company, LLC
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Lafayette Utilities System
Las Vegas Power Company, LLC
Leapfrog Power, Inc.
Lincoln Electric System
Los Alamos County
Los Angeles Department of Water and Power
Louisiana Energy and Power Authority
Louisville Gas & Electric Company
Luminant Energy Company LLC
Macquarie Energy LLC
MAG Energy Solutions Inc.
Malaga Power, LLC
Manitoba Hydro
Marin Clean Energy
Mariposa Energy, LLC
McMinnville Water & Light
Merced Irrigation District
Mercuria Energy America, LLC
Merrill Lynch Commodities, Inc.
Metropolitan Water District of Southern California
MidAmerican Energy Company
Midwest Energy, Inc.
Missouri Joint Municipal Electric Utility Comm.
Modesto Irrigation District
Mohave Electric Cooperative, Inc.
Morgan Stanley Capital Group, Inc.
MRP San Joaquin Energy LLC
M-S-R Public Power Agency
Municipal Energy Agency of Nebraska
NaturEner Power Watch, LLC
Navajo Tribal Utility Authority
Nebraska Public Power District
Nevada Power Company
New Harquahala Generating Company, LLC
New West Energy
Newmont Nevada Energy Investments
Nexen Energy Marketing U.S.A. Inc.
NextEra Energy Marketing, LLC
Noble Americas Gas & Power Corp.
Northern California Power Agency
Northern States Power Company
Northern Wasco County People’s Utility District
NorthPoint Energy Solutions Inc.
NorthWestern Corporation dba NorthWestern Energy
NRG Power Marketing LLC
Occidental Power Services, Inc.
OhmConnect Inc.
Oklahoma Gas & Electric Company
Oklahoma Municipal Power Authority
Omaha Public Power District
Ontario Power Generation Inc.
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Orange County Power Authority
Otter Tail Power Company
Pacific Gas & Electric Company
Pacific Summit Energy LLC
PacifiCorp
Patua Acquisition Company, LLC
Peninsula Clean Energy Authority
Pilot Power Group, Inc.
Pioneer Community Energy
Pittsburg Power Company
Placer County Water Agency
Platte River Power Authority
Plumas-Sierra Rural Electric Cooperative
PNGC Power
Port of Oakland
Portland General Electric
Power and Water Resources Pooling Authority
Power Company of America, L.P.
Power Resources Cooperative
Powerex Corp.
Public Service Company of Colorado
Public Service Company of New Mexico
Public Utility District No. 1 of Benton County
Public Utility District No. 1 of Chelan County
Public Utility District No. 1 of Clark County
Public Utility District No. 1 of Cowlitz County
Public Utility District No. 1 of Douglas County
Public Utility District No. 1 of Franklin County
Public Utility District No. 1 of Grays Harbor County
Public Utility District No. 1 of Klickitat County
Public Utility District No. 1 of Lewis County
Public Utility District No. 1 of Okanogan County
Public Utility District No. 1 of Pend Oreille County
Public Utility District No. 1 of Snohomish County
Public Utility District No. 2 of Grant County
Public Utility District No. 3 of Mason County
Puget Sound Energy
Rainbow Energy Marketing Corporation
Renewable Power Strategies LLC dba RPS Advisors
Rising Tree Wind Farm LLC
Royal Bank of Canada
RWE Trading Americas Inc.
Saavi Energy Solutions, LLC
Sacramento Municipal Utility District
Saguaro Power Company
Salt River Project Agricultural Improvement and Power District Salton Sea Power L.L.C.
San Diego Community Power
San Diego Gas & Electric Co.
San Gorgonio Farms, Inc.
Seattle City Light
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Sempra Gas & Power Marketing LLC
Sentinel Energy Center, LLC
Shell Energy North America (US), L.P.
Sierra Pacific Power Co.
Silicon Valley Clean Energy Authority
Silicon Valley Power
Silver State Energy Association
Skylar Energy Resources, LLC
Skylar Power Marketing, LLC
Skylar Resources, LP
Sonoma Clean Power Authority
Southern Calif. Edison Co.
Southern California Public Power Authority
Southern Company Services, Inc., as agent for: Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company and Southern Power Company Southern Illinois Power Cooperative
Southern Nevada Water Authority
Southwest Public Power Agency, Inc.
Southwestern Power Administration
Southwestern Public Service Company
Sulphur Springs Valley Electric Cooperative, Inc.
Suncor Energy Marketing Inc.
Sunflower Electric Power Corp.
Switched On, LLC
Tacoma Power
Talen Energy Marketing, LLC
Talen Montana, LLC
TEC Energy, Inc.
Teck Metals Ltd.
Tenaska Power Services Co.
Tennessee Valley Authority
TGP Energy Management, LLC
The Energy Authority, Inc.
Town of Apple Valley
Townsite Solar, LLC
Trafigura Trading LLC
TransAlta Energy Marketing (US) Inc.
TransCanada Energy Sales Ltd.
Trico Electric Cooperative, Inc.
Tri-State Generation and Transmission Association, Inc.
Tucson Electric Power Company
Turlock Irrigation District
Twin Eagle Resource Management, LLC
Umatilla Electric Cooperative
Union Electric Company d/b/a Ameren Missouri
Union Power Partners, L.P.
Uniper Global Commodities North America LLC
UNS Electric Inc.
Utah Associated Municipal Power Systems
Utah Municipal Power Agency
Valley Electric Association, Inc.
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Vantage Wind Energy LLC
Victorville Municipal Utility Services
Vitol Inc.
WAPA-Colorado River Storage Project
WAPA-Desert Southwest Region
WAPA – Rocky Mountain Region (LAP)
WAPA-Sierra Nevada Region
WAPA-Upper Great Plains Region
Wellhead Power EXchange, LLC
Western Community Energy
Western Farmers Electric Coop.
Western Power Services, Inc.
WTMPA/City of Lubbock (Lubbock Power & Light)
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