The independent director is required to consider only the interests of the Electricity Supplier and its creditors in acting or voting on certain material actions that require the unanimous consent of the directors. No resignation or removal of the independent director will be effective until a successor independent director has been appointed.
The Electricity Supplier’s limited liability company agreement includes provisions that enable the director appointed by CCCFA to obtain proposals on behalf of the Electricity Supplier from the Funding Recipient and other qualified funding recipients for a funding agreement to replace the Funding Agreement upon the maturity date of the Funding Agreement (which coincide with the end of the Initial Interest Rate Period). CCCFA has agreed under the Re-Pricing Agreement to cooperate in good faith with the Electricity Supplier and to take all steps reasonably within its control to cause the Bonds to be remarketed or refunded for the Interest Rate Period that corresponds to each Reset Period.
Attachment Staff Report Item 17L
64 The Electricity Supplier has market-based rate authority from FERC for energy, capacity and ancillary services sales at market-based rates.
_____________________
Under no circumstance is the Electricity Supplier, J. Aron or GSG obligated to pay any amounts owed in respect of the Bonds.
THE CLEAN ENERGY PURCHASE CONTRACT
Set forth below is a summary of certain provisions of the Clean Energy Purchase Contract during the Delivery Period. This summary does not purport to be a complete description of the terms and conditions of the Clean Energy Purchase Contract and is qualified by reference to the full text thereof.
General
Under the Clean Energy Purchase Contract, CCCFA has agreed to sell and deliver or cause to be delivered to the Project Participant, and the Project Participant has agreed to purchase and receive from CCCFA quantities of Electricity at the times set forth therein, which Electricity shall be comprised of Assigned Electricity delivered to J. Aron pursuant to the Assignment Agreements, and the Base Quantities, if any. The Project Participant is not required to purchase and receive or take any Base Quantities under the Clean Energy Purchase Contract, and CCCFA has agreed to cause the Electricity Supplier to remarket any Base Quantities that would otherwise be delivered under the Clean Energy Purchase Contract pursuant to the provisions of the Master Power Supply Agreement.
If the Delivery Period under the Master Power Supply Agreement is terminated, the Clean Energy Purchase Contract will terminate on the Electricity Delivery Termination Date, subject to the provisions thereof.
For information regarding the Project Participant, see APPENDIX A.
Pricing Provisions
Contract Price. For any Month, for each Assigned PPA, the Assigned Prepay Quantities for such Assigned PPA actually delivered to the Project Participant in such month is referred to herein as “Assigned Discounted Energy.”
For any Month with respect to each Assigned PPA, the amount, if any, by which (i) the total quantity of Assigned Electricity (in MWh) delivered under the Clean Energy Purchase Contract with respect to such Assigned PPA in such Month exceeds (ii) the Assigned Prepay Quantity for such Assigned PPA for such Month, together with any associated assigned RECs, is referred to herein as “Assigned PAYGO Electricity.”
The formula for calculating the Contract Price under the Clean Energy Purchase Contract is different for Base Quantities, Assigned Discounted Energy delivered from Initially Assigned PPAs, Assigned Discounted Energy delivered from Future Assigned PPAs, and Assigned PAYGO Electricity. In particular, the Contract Price for Assigned Discounted Energy delivered from the Initially Assigned PPAs will be based on the fixed APC Contract Price for each Initially Assigned PPA, and the Contract Price for Attachment Staff Report Item 17L
65 Assigned Discounted Energy delivered from a Future Assigned PPA will be based on the Day-Ahead Average Price. The “Contract Price” under the Clean Energy Purchase Contract means:
(i) with respect to Base Quantities for any Delivery Hour, the (a) the Day-Ahead Market Price for such Delivery Hour at the Base Delivery Point, less (b) the product of the fixed price under the CCCFA Commodity Swap for Base Quantities, multiplied by the Monthly Discount Percentage;
(ii) with respect to Assigned Discounted Energy delivered under the Initially Assigned PPAs, (a) the applicable APC Contract Price(s) multiplied by (b) the result of 100% less the Monthly Discount Percentage;
(iii) with respect to Assigned Discounted Energy delivered under a Future Assigned PPA, (a) the Day-Ahead Average Price less (b) the product of the fixed price under the CCCFA Commodity Swap for Assigned Prepay Quantities delivered under any Future Assigned PPAs, multiplied by the Monthly Discount Percentage; and (iv) with respect to Assigned PAYGO Electricity, the APC Contract Price(s).
If Base Quantities are required to be remarketed pursuant to the Master Power Supply Agreement, the Electricity Supplier will remarket Base Quantities that would have otherwise been delivered as described in “THE MASTER POWER SUPPLY AGREEMENT – Electricity Remarketing.” Ava Monthly Payments. Pursuant to the Clean Energy Purchase Contract, for each Month in which an EPS Energy Period is in effect during the Delivery Period, the Project Participant will pay CCCFA the product of the Assigned Electricity actually delivered for such Month and the Contract Price therefor, provided that CCCFA shall owe a payment to the Project Participant to the extent that the Contract Price for Assigned Prepay Quantities is negative.
Assignment of Power Purchase Agreements
General. The Project Participant expects to assign, pursuant to limited assignment agreements, [four (4)] power purchase agreements to J. Aron for delivery beginning [__] 1, 2025 *
.
Commencing one year prior to the expiration of any EPS Energy Period, or otherwise immediately upon the early termination or anticipated early termination of an EPS Energy Period or failure to assign any portion of the Initial Assigned Rights and Obligations, the Project Participant is required to exercise Commercially Reasonable Efforts and cooperate with J. Aron in good faith to assign Assigned Rights and Obligations under one or more Assigned PPAs, and J. Aron has the right to consent to, pursuant to which the Project Participant is purchasing EPS Compliant Energy and associated attributes, and J. Aron will be obligated to sell and deliver Assigned Electricity it receives under all Assigned Rights and Obligations to the Electricity Supplier pursuant to the Electricity Purchase, Sale and Service Agreement, and the Electricity Supplier will be obligated to deliver such Electricity to CCCFA pursuant to the Master Power Supply Agreement.
* Preliminary, subject to change.
Attachment Staff Report Item 17L
66 Under certain circumstances described in the Electricity Purchase, Sale and Service Agreement, J.
Aron is obligated to exercise Commercially Reasonable Efforts to obtain EPS Compliant Energy for ultimate redelivery to the Project Participant pursuant to the Clean Energy Purchase Contract. The delivery period for such EPS Compliant Energy (any such period, a “J. Aron EPS Energy Period”) obtained during the Initial Interest Rate Period shall not exceed the length of the Initial Interest Rate Period.
Failure to Obtain EPS Compliant Energy. To the extent an EPS Energy Period terminates or expires and the Project Participant and J. Aron have been unable to obtain EPS Compliant Energy for delivery, then the Electricity Supplier shall remarket the Base Quantities pursuant to the Master Power Supply Agreement. The obligations of the Project Participant and J. Aron described under this heading shall continue to apply, and the Project Participant may not make any new commitment to purchase Priority Electricity during such a remarketing.
Adjustments to Base Quantities. Base Quantity Reductions under the Clean Energy Purchase Contract have been calculated to reflect any replacement of the Assigned Rights and Obligations under an Assigned PPA or other commencement of a subsequent Assignment Period or a delivery period for any EPS Compliant Energy procured by J. Aron. Effective upon the first day of the [second] month following the early termination of an EPS Energy Period, the Base Quantity Reductions will be revised as described under the heading “THE MASTER POWER SUPPLY AGREEMENT – Assignment of Power Purchase Agreements – Adjustments to Base Quantities and Assigned Quantities.” Failure to Schedule, Take, or Deliver Assigned Energy. CCCFA and the Project Participant will have no payment obligation to each other under the Clean Energy Purchase Contract with respect to any portion of the Assigned Prepay Quantities that is not delivered in any Month. If Assigned Electricity less than the Assigned Prepay Quantities is delivered under an Assigned PPA in any Month for reasons other than Force Majeure, or if an Assigned PPA FM Remarketing Event is in effect, Assigned Electricity not delivered and corresponding amounts paid will be reconciled between the Electricity Supplier and CCCFA as described under the heading “THE MASTER POWER SUPPLY AGREEMENT – Assignment of Power Purchase Agreements – Reconciling Insufficient Deliveries of Assigned Energy” and “– Electricity Remarketing – Assigned Electricity” herein.
J. Aron Non-Payment to APC Party. To the extent that J. Aron fails to pay when due any J. Aron Prepay Payment, and the Project Participant makes such payment to the applicable APC Party, upon notice CCCFA shall pay such amount to the Project Participant.
Billing and Payment
No later than the fifth day of each month during the Delivery Period (excluding the first month of the Delivery Period) and the first Month following the end of the Delivery Period, the Project Participant shall deliver to CCCFA a statement (a “Purchaser’s Statement”) listing (i) in respect of any Shortfall Quantity in the prior month, the Replacement Price applicable to such Shortfall Quantity, and (ii) any other amounts due to the Project Participant in connection with the Clean Energy Purchase Contract with respect to the prior Months.
Not later than 20 days following the end of the month during the Delivery Period, and the first month following the end of the Delivery Period, CCCFA must provide a monthly billing statement (a “Billing Statement”) to the Project Participant indicating (i) the total amount due to CCCFA for Electricity delivered in the prior month, (ii) any other amounts due to CCCFA or the Project Participant in connection Attachment Staff Report Item 17L
67 with the Clean Energy Purchase Contract with respect to the prior months, and (iii) the net amount due to CCCFA or the Project Participant; provided that the Electricity Supplier’s delivery of a Billing Statement to CCCFA or the Project Participant pursuant to the Master Power Supply Agreement shall be deemed to satisfy CCCFA’s obligation to deliver a Billing Statement under the Clean Energy Purchase Contract. If the Billing Statement indicates an amount due from the Project Participant, then the due date for payment by the Project Participant will be the 23rd day of the month following the most recent month to which such Billing Statement relates (or if such day is not a Business Day, the preceding Business Day). If the Billing Statement indicates an amount due from CCCFA, then the due date for payment by CCCFA will be the 28th day of the month following the most recent month to which such Billing Statement relates (or if such day is not a Business Day, the following Business Day). If the Project Participant disputes the appropriateness of any charge or calculation in any billing statement, the Project Participant, within two years after the applicable month of product delivery, must notify CCCFA of the existence of and basis for such dispute and must pay all amounts billed by CCCFA, including any amounts in dispute. To the extent it is ultimately determined that the Project Participant did not owe the disputed amount, CCCFA must pay the Project Participant the disputed amount plus interest.
Annual Refunds
CCCFA has agreed to provide an annual refund, if any, to the Project Participant from amounts available for distribution pursuant to the Indenture, which amount shall be credited to the next amount due from the Project Participant following the release of funds to CCCFA under the terms of the Indenture. In determining the amount of such refund, if any, CCCFA may reserve such funds (i) as may be required under the terms of the Indenture or (ii) with the prior written consent of the Project Participant, (a) to fund or maintain the Minimum Discount Percentage for any future Reset Period, (b) to fund or maintain any rate stabilization or working capital reserve, (c) to reserve or account for unfunded liabilities and expenses, or (d) for other costs of the Clean Energy Project.
Covenants of the Project Participant
Operating Expenses. The Project Participant covenants (a) to make the payments on its part due under the Clean Energy Purchase Contract from the revenues of its electric utility system, and only from such revenues, as a charge against such receivables, as an item of operating expenses and a cost of purchased Electricity, and (b) that in any future bond issue, swap, or other financial transaction undertaken in connection with its electric system, it will not pledge or encumber the revenues of its electric system through a gross revenue pledge or in any other way which creates a prior or superior obligation to its obligation to make payments under the Clean Energy Purchase Contract.
Maintenance of Rates and Charges. The Project Participant has covenanted and agreed that it will establish, maintain, and set rates and charges for its electric system so as to provide revenues sufficient, together with all available electric system revenues, to enable it to pay to CCCFA all amounts payable under its Clean Energy Purchase Contract, and to pay all other amounts payable from the revenues of the Project Participant’s electric system, and to maintain required reserves.
Qualifying Use. The Project Participant has agreed that it will (a) provide such information with respect to its community choice aggregation program as may be requested by CCCFA in order to establish the tax-exempt status of the Bonds, and (b) act in accordance with such written instructions as tax counsel to CCCFA may provide from time to time that are reasonably necessary to enable CCCFA to maintain the tax-exempt status of interest on the Bonds. Without limiting the foregoing, the Project Participant has Attachment Staff Report Item 17L
68 further agreed to sell or otherwise use the Electricity purchased under the Clean Energy Purchase Contract (a) in a “qualifying use” as defined in the applicable U.S. Treasury Regulation, (b) in a manner that will not result in any private business use of that Electricity within the meaning of Section 141 of the Code, and (c) consistent with its Federal Tax Certificate (collectively, the “Qualifying Use Requirements”).
In the event that the Project Participant remarkets the Electricity it receives under the Clean Energy Purchase Contract in a manner that does not comply with the Qualifying Use Requirements due to fluctuations in its commodity needs, the Project Participant agrees to exercise Commercially Reasonable Efforts to use the proceeds of such remarketing to purchase Electricity (other than Priority Electricity, which is described below) for use in compliance with such Qualifying Use Requirements. The Project Participant further agrees to provide quarterly reports to CCCFA with respect to the quantity of proceeds from sales of Electricity that were sold in a transaction that does not comply with the Qualifying Use Requirements and that have not been remediated by applying such proceeds to purchase Electricity that are used in compliance with the Qualifying Use Requirements. The amount of any such unremediated proceeds will be entered on the ledger system maintained by J. Aron under the Electricity Purchase, Sale and Service Agreement.
Priority Electricity. The Project Participant agrees to purchase and receive Base Quantities and Assigned Quantities to be delivered under the Clean Energy Purchase Contract (a) in priority over and in preference to all other Electricity available to it that are not Priority Electricity; and (b) on at least a pari passu and non-discriminatory basis with other Priority Electricity. For purposes of this covenant and during the Delivery Period, “Priority Electricity” means Base Quantities and Assigned Quantities, together with any other Electricity that (a) the Project Participant is obligated to take under a long-term agreement, which Electricity either has been purchased by the Project Participant or a joint action agency pursuant to a long-term prepaid power purchase agreement using the proceeds of tax-exempt bonds, notes or other obligations or (b) with respect to Energy, Energy that is generated using capacity that was constructed using the proceeds of tax-exempt bonds, notes, or other obligations.
Delivery Points; Title and Risk of Loss
Assigned Electricity. Assigned Electricity delivered under the Clean Energy Purchase Contract shall be scheduled for delivery to and receipt at the applicable Assigned Delivery Point specified in the applicable Assignment [Schedule]. All other Assigned Electricity will be delivered pursuant to the terms of the applicable Assignment Agreement. Scheduling and transmission of Assigned Electricity shall be in accordance with the applicable Assignment [Schedule].
Base Electricity. CCCFA is required to deliver Base Electricity to the Base Delivery Points, and is responsible for arranging transmission and scheduling services with its Transmission Providers to deliver Base Electricity to the Base Delivery Point. The Project Participant is responsible for arranging transmission and scheduling with its Transmission Providers in accordance with their practices, to receive the Base Electricity at the Base Delivery Point (or, if the Electricity Supplier arranges and is responsible for transmission and scheduling services, then the Project Participant’s obligations as described in this paragraph shall be relieved pro tanto.)
Title. Title to and risk of loss of the Energy delivered under the Clean Energy Purchase Contract shall pass from CCCFA to the Project Participant at the applicable Delivery Point. The transfer of title and risk of loss for Assigned Electricity shall be in accordance with the applicable Assignment Agreement.
Attachment Staff Report Item 17L
69 Failure to Perform
To the extent that (i) the Assigned Prepay Quantities of Electricity under an Assigned PPA are not delivered to the Project Participant in any Month for any reason other than Force Majeure or (ii) an Assigned PPA FM Remarketing Event has occurred and is in effect, the remarketing provisions of the Master Power Supply Agreement will apply. See “THE MASTER POWER SUPPLY AGREEMENT – Electricity Remarketing” and “– Remarketing of Energy” below.
Neither the Project Participant nor CCCFA has any liability to one another for any failure to Schedule, take or deliver Assigned Electricity.
Remarketing of Energy
In the event (a) a quantity of Assigned Electricity less than the Assigned Prepay Quantity is delivered under an Assigned PPA in any Month (for any reason other than Force Majeure events), (b) an Assigned PPA FM Remarketing Event has occurred and is in effect, or (c) CCCFA is required to cause Base Quantities (which are not EPS compliant under California law) that otherwise would be delivered under the Clean Energy Purchase Contract to be remarketed, the Project Participant will be deemed to have requested for the Electricity Supplier to remarket the portion of the Assigned Electricity or Base Quantities (as applicable) not delivered. Any such remarketing will be treated as a purchase by the Electricity Supplier for its own account and will constitute a private business use sale.
In the event the Project Participant does not require all or any portion of the Assigned Prepay Quantities delivered to meet its requirements for Energy for any Month that it is obligated to purchase under the Clean Energy Purchase Contract as a result of (i) insufficient demand by its retail customers, or (ii) a change in law, the Project Participant may request that the Electricity Supplier sell such portion of the Assigned Electricity to (a) another Municipal Utility or (b) if necessary, another purchaser. If the Project Participant makes such a request, J. Aron has the right to terminate the Assignment Period applicable to such Assigned Quantities and remarket Base Quantities.
Under the Clean Energy Purchase Contract, the Project Participant is not required to purchase and receive any Base Quantities and has no payment obligations with respect thereto, and CCCFA will cause all Base Quantities that would otherwise be delivered under the Clean Energy Purchase Contract to be remarketed.
CCCFA arranges for sales through the Electricity Supplier in accordance with the remarketing provisions and procedures set forth in the Master Power Supply Agreement. See “THE MASTER POWER SUPPLY AGREEMENT – Electricity Remarketing” and “THE ELECTRICITY PURCHASE, SALE AND SERVICE AGREEMENT – J. Aron as Agent – Electricity Remarketing.” Force Majeure
Either party will be excused from the performance of its obligations under the Clean Energy Purchase Contract to the extent such failure was caused by an event of Force Majeure (as defined in APPENDIX C) and the claiming party serves notice and details thereof, other than its obligation to make payments under the Clean Energy Purchase Contract then due or becoming due with respect to performance prior to the Force Majeure. The declaration of Force Majeure by an APC Party under an Assigned PPA shall constitute Force Majeure under the Clean Energy Purchase Contract. The declaration of Force Majeure by the Electricity Supplier under the Master Power Supply Agreement will constitute Force Attachment Staff Report Item 17L
70 Majeure in respect of CCCFA to the extent the conditions of Force Majeure set forth in the Clean Energy Purchase Contract have been satisfied with respect to the Electricity Supplier. To the extent that an Assignment Agreement is terminated early, such termination will constitute Force Majeure with respect to CCCFA until the earlier of (a) the commencement of an Assignment Period under a replacement Assignment Agreement, (b) the commencement of a J. Aron EPS Energy Period, or (c) the end of the [first] month following the month in which such early termination of the Assignment Agreement occurs.
Defaults and Termination Events
Defaults Each of the following is a default under the Clean Energy Purchase Contract with respect to a party:
(a) Any representation or warranty made by such party in the Clean Energy Purchase Contract shall prove to have been incorrect in any material respect when made; and (b) Such party fails to perform, observe or comply with any covenant, agreement or term contained in the Clean Energy Purchase Contract, and such failure continues for more than 30 days following receipt of written notice thereof.
In addition, each of the following is a default by the Project Participant under the Clean Energy Purchase Contract:
(a) Failure by the Project Participant to pay when due any amounts owed to CCCFA under the Clean Energy Purchase Contract, subject to certain grace periods; (b) The insolvency or bankruptcy of the Project Participant; and (c) The Project Participant’s failure to perform, observe, or comply with any material covenant, agreement or term in the Clean Energy Purchase Contract, including any failure to establish, maintain, or collect rates or charges adequate to provide revenues sufficient to enable the Project Participant to pay all amounts due to CCCFA under the Clean Energy Purchase Contract, and any such failure continues for more than 30 days following the earlier receipt of written notice thereof.
Remedies and Termination
Upon the occurrence of a default by the Project Participant described in (b) above, the Clean Energy Purchase Contract will automatically terminate and all amounts due to CCCFA will be immediately due and payable. Upon the occurrence of the other defaults described above, the non-defaulting party may terminate the Clean Energy Purchase Contract and/or declare all amounts due to it to be immediately due and payable. During the existence of a default, the non-defaulting party may exercise all other rights and remedies available to it at law or in equity, including without limitation mandamus, injunction and action for specific performance, to enforce any covenant, agreement or term of the Clean Energy Purchase Contract.
In addition to the remedies described above, during the existence of any default by the Project Participant, CCCFA may suspend its performance under the Clean Energy Purchase Contract and discontinue the supply of all or any portion of the Electricity otherwise to be delivered to the Project Participant under the Clean Energy Purchase Contract.
Attachment Staff Report Item 17L
71 If CCCFA exercises its right to discontinue Electricity deliveries to the Project Participant, such service may only be reinstated, as determined by CCCFA, upon (a) payment in full by the Project Participant of all amounts then due and payable under its Clean Energy Purchase Contract and (b) unless otherwise agreed to by CCCFA, payment in advance by the Project Participant at the beginning of each month (for such time period as CCCFA deems appropriate) of amounts estimated by CCCFA to be due from the Project Participant for the future delivery of Electricity for such month. If the Project Participant fails to accept the Electricity tendered for delivery under the Clean Energy Purchase Contract, CCCFA has the right to sell the Electricity to third parties.
Assignment
The provisions of the Clean Energy Purchase Contract are binding on the successors and assigns of such contract. Neither party may assign the Clean Energy Purchase Contract to another party without the prior written consent of the other party, except that CCCFA may assign its interests to secure its obligations under the Indenture. Prior to assigning all or any part of its interest in the Clean Energy Purchase Contract, the Project Participant is required to deliver to CCCFA a Rating Confirmation from each rating agency then rating the Bonds. CCCFA shall terminate any applicable Assignment Agreement concurrently with the assignment of the Clean Energy Purchase Contract.
Project Participant Credit Enhancement
Debt Service Reserve Account. Upon the failure of the Project Participant to make a payment under the Clean Energy Purchase Contract, the Trustee shall, on the last Business Day of the month, withdraw from the Debt Service Reserve Account and deposit into the Debt Service Account an amount equal to any deficiency that exists therein as a result of such nonpayment. The Debt Service Reserve Requirement is approximately equal to the largest two consecutive monthly Scheduled Debt Service Deposits during the Initial Interest Rate Period. Upon such a transfer, the Trustee will notify the Electricity Supplier to remarket Electricity, and the Electricity Supplier will then have the option, but not the requirement, to purchase Receivables from CCCFA.
Purchase of Call Receivables. Under the Electricity Purchase, Sale and Service Agreement, the Electricity Supplier may transfer Call Receivables purchased by the Electricity Supplier to J. Aron, and J.
Aron has agreed to accept the transfer of any such Call Receivables purchased by the Electricity Supplier as a credit against amounts owed by the Electricity Supplier thereunder; provided that (x) regardless of whether or not the Electricity Supplier Put Receivables Account is funded, J. Aron’s obligation to purchase and accept the transfer of Swap Deficiency Call Receivables is subject to it having provided its prior written consent to the purchase of such Swap Deficiency Call Receivables by the Electricity Supplier and (y) upon funding of the Electricity Supplier Put Receivables Account J. Aron’s obligation to purchase and accept the transfer of Elective Call Receivables is subject to it having provided its prior written consent to the purchase of such Elective Call Receivables by the Electricity Supplier. To the extent J. Aron has purchased Call Receivables for amounts owed by the Project Participant under the Clean Energy Purchase Contract for the purchase of Assigned Electricity, J. Aron may transfer all or a portion of such Receivables to the relevant PPA Seller to which such non-payment by the Project Participant for the Assigned Electricity delivered under the Clean Energy Purchase Contract relates.
Purchase of Put Receivables. If the Electricity Supplier Put Receivables Account has been funded, then upon final maturity of the Bonds or the occurrence of an Early Termination Payment Date under the Master Power Supply Agreement, the Trustee will put to the Electricity Supplier sufficient Put Receivables, Attachment Staff Report Item 17L
72 which the Electricity Supplier is required to purchase, to ensure the amounts in the Debt Service Reserve Account equal the Debt Service Reserve Requirement and the amounts in the Commodity Reserve Account equal the Minimum Amount. The Electricity Supplier Put Receivables Account is established with the Master Custodian under the Master Electricity Supplier Custodial Agreement, and if J. Aron elects to fund the Electricity Supplier Put Receivables Account, it must do so in an amount equal to the Put Receivables Funding Requirement. Any amount on deposit in the Electricity Supplier Put Receivables Account may be used only to pay any amounts due from the Electricity Supplier under the Receivables Purchase Provisions in respect of Put Receivables. The provisions described in this caption are collectively referred to herein as “Project Participant Credit Enhancement.”
CALIFORNIA COMMUNITY CHOICE FINANCING AUTHORITY
General
CCCFA is a joint powers authority formed pursuant to the Act and the joint powers agreement (the “JPA Agreement”) made among those public agencies which are its members. CCCFA was incorporated and organized in 2021. As of the date of this Official Statement the members of CCCFA are the Project Participant, Central Coast Community Energy, Clean Power Alliance of Southern California, Marin Clean Energy, and Silicon Valley Clean Energy Authority (each, a “Founding Member”) and Peninsula Clean Energy Authority, Pioneer Community Energy, San Diego Community Power, the City of San José through its community choice aggregator program known as San José Clean Energy, Sonoma Clean Power Authority and Valley Clean Energy Alliance (each an “Associate Member” and, together with the Founding Members and any additional members which may later be added as parties to the JPA Agreement, a “Member”).
Each Member is a community choice aggregator, and a public agency as defined in the Act, which operates a community choice aggregation program with the authority to group retail electricity customers to solicit bids, broker, and contract for electricity and energy services for those customers, and to enter into agreements for services to facilitate the sale and purchase of electricity and other related services, and to study, promote, develop, conduct, operate and manage energy-related programs.
CCCFA was formed for, among other purposes, the purpose of financing energy prepayments which can be financed with tax advantaged bonds for the benefit of its Members.
Powers and Authority
Under the provisions of the Act, CCCFA has all of the powers common to the Members, and any and all power in connection with the financing or refinancing of energy prepayments that can be financed with tax advantaged bonds and other obligations, including: (i) the purchase and sale of electric energy and associated capacity and environmental attributes, (ii) the design, acquisition, maintenance, or operation of any Public Capital Improvement (as defined in the Act) or other facility or improvement, or the leasing thereof, (iii) the provision of working capital, and (iv) any other project, program, public capital improvement or purpose authorized by the Act or other law to be undertaken, financed, or refinanced by CCCFA, in connection with the financing or refinancing of energy prepayments that can be financed with tax advantaged bonds and other obligations (a “Prepayment Project”). CCCFA shall have the power to issue, incur, sell and deliver bonds in accordance with the provisions of the Act and other applicable laws for the purpose of acquiring, undertaking, financing, or refinancing one or more Prepayment Projects.
Attachment Staff Report Item 17L
73 Under the provisions of the JPA Agreement and the Act, CCCFA has (among others) the following powers:
(a) to acquire, purchase, finance, operate, maintain, utilize and/or dispose of one or more Prepayment Projects and any facilities, programs or other authorized costs relating thereto; (b) to make and enter contracts (including without limitation interest rate, commodity, basis and similar hedging contracts intended to hedge payment, rate, cost or similar exposure); (c) to employ agents and employees;
(d) to acquire, manage, maintain or operate any building, works or improvements; (e) to acquire, hold, lease or dispose of property;
(f) to incur debts (including without limitation through the issuance or incurrence of bonds), liabilities or obligations (which shall not constitute debts, liabilities, or obligations of any of the Members); (g) to sue and be sued in its own name;
(h) to receive gifts, contributions and donations of real or personal property, funds, services and other forms of assistance from any source;
(i) to receive, collect, invest and disburse moneys;
(j) to apply for, accept, and receive all licenses, permits, grants, loans or other aids from any federal, state, or local public agency;
(k) to make and enter into service agreements relating to the provision of services necessary to plan, implement, operate and administer energy-related programs; (l) to defend, hold harmless, and indemnify, to the fullest extent permitted by law, each Member from any liability, claims, suits, or other actions; (m) to exercise any other power and take any other action permitted by law to accomplish the purposes of the JPA Agreement.
The JPA Agreement shall continue in full force and effect until terminated as provided in therein; provided, however, the JPA Agreement cannot be terminated while either (a) any bonds of CCCFA, including the Bonds, remain outstanding, or (b) CCCFA is the owner, lessor or lessee of any real or personal property financed from the proceeds of any bonds.
Governance and Management
Board of Directors. CCCFA is governed by a Board of Directors (the “Board”) consisting of one director for each Founding Member. The Board shall have the authority to provide for the general management and oversight of the affairs, property and business of CCCFA. The Board may appoint a part-time or full-time General Manager and may appoint one or more part-time or full-time Assistant General Managers. The General Manager would be responsible for the day-to-day operation and management of Attachment Staff Report Item 17L
74 CCCFA. The names of the current directors of CCCFA are listed on the roster page at the front of this Official Statement.
Management. The Board has not appointed a General Manager or Assistant General Manager.
CCCFA’s current management team consists of Garth Salisbury as Treasurer-Controller and David Ruderman of Colantuono, Highsmith & Whatley, PC as General Counsel.
CCCFA Projects
CCCFA previously issued its bonds (a) on September 23, 2021 to purchase prepaid electricity from Morgan Stanley Energy Structuring, L.L.C. (“MSES”), which is delivered to its Members, Ava Community Energy Authority (formerly East Bay Community Energy Authority) and Silicon Valley Clean Energy Authority, (b) on November 24, 2021 to purchase prepaid electricity from Aron Energy Prepay 5 LLC, which is delivered to its Member, Marin Clean Energy, (c) on July 12, 2022 to purchase prepaid electricity from MSES, which is delivered to its Member, Ava Community Energy Authority, (d) on January 4, 2023 to purchase prepaid electricity from Aron Energy Prepay 15 LLC, which is delivered to its Member, Pioneer Community Energy, (e) on January 27, 2023 to purchase prepaid electricity from MSES, which is delivered to its Member, Silicon Valley Clean Energy Authority, (f) on February 23, 2023 to purchase prepaid electricity from Aron Energy Prepay 14 LLC, which is delivered to its Member, Clean Power Alliance of Southern California, (g) on June 15, 2023 to purchase prepaid electricity from Aron Energy Prepay 16 LLC, which is delivered to its Member, Clean Power Alliance of Southern California, (h) on August 16, 2023 to purchase prepaid electricity from MSES, which is delivered to its Member, Ava Community Energy Authority, (i) on October 26, 2023 to purchase prepaid electricity from Aron Energy Prepay 22 LLC, which is delivered to its Member, Central Coast Community Energy, (j) on December 15, 2023 to purchase prepaid electricity from Aron Energy Prepay 21 LLC, which is delivered to its Member, Marin Clean Energy, (k) on January 25, 2024 to purchase prepaid electricity from MSES, which is delivered to its Member, Silicon Valley Clean Energy Authority, (l) on August 27, 2024 to purchase prepaid electricity from Aron Energy Prepay 41 LLC, which is delivered to its Member, Clean Power Alliance of Southern California, and (m) on October 10, 2024 to purchase prepaid electricity from Aron Energy Prepay 43 LLC, which is delivered to its Member, Peninsula Clean Energy Authority, (n) on November 4, 2024 to purchase prepaid electricity from MSES, which is delivered to its Member, the City of San José, (o) on November 14, 2024 to purchase prepaid electricity from Royal Bank of Canada, which is delivered to its Member, Clean Power Alliance of Southern California, (p) on November 20, 2024 to purchase prepaid electricity from Energy Prepay IV, LLC, which is delivered to its Member, San Diego Community Power, (q) on November 27, 2024 to purchase prepaid electricity from Aron Energy Prepay 45 LLC, which is delivered to its Member, Sonoma Clean Power Authority, (r) on December 20, 2024 to purchase prepaid electricity from Aron Energy Prepay 46 LLC, which is delivered to its Member, Clean Power Alliance of Southern California, and (s) on March 13, 2025 to purchase prepaid electricity from Aron Energy Prepay 44 LLC, which is delivered to its Member, Valley Clean Energy Alliance [ADD APPLICABLE TRANSACTIONS]. Each series of bonds is secured by a separate bond indenture. CCCFA may issue future bonds to purchase prepaid electricity supplies for sale to participating municipal utilities, with the revenues from such sales pledged to the payment of such bonds. Such revenues will not be pledged, nor may such revenues be used, to pay amounts due with respect to the Bonds.
In furtherance of its corporate and public purposes, CCCFA intends to acquire and finance supplies of electricity on a prepaid basis for sale to other community choice aggregators. CCCFA is currently developing additional Clean Energy Projects under transaction and financing structures that are expected to be generally similar to the structure of the Clean Energy Project. CCCFA can give no assurance as to Attachment Staff Report Item 17L
75 the timing or terms of these projects or that they will be completed. A range of factors that are outside of the control of CCCFA, including the final negotiation of transaction documents, the approval of commodity supply contracts by the prospective project participants, changes in market prices and rates, the receipt of bond ratings, and other factors could result in these transactions not being completed.
Any additional Clean Energy Projects that may be undertaken by CCCFA will be separate and distinct transactions, and the bonds issued to finance these projects will be payable solely from the commodity sales and other revenues pledged for their payment. In no event will the Revenues and Trust Estate pledged to the payment of the Bonds be used to pay any other bonds of CCCFA.
Separate Obligations
THE BONDS, ANY FUTURE BONDS THAT MAY BE ISSUED BY CCCFA AND ANY
FUTURE CONTRACTS THAT CCCFA MAY ENTER INTO TO ACQUIRE ADDITIONAL ENERGY OR ELECTRICITY ARE AND WILL BE SEPARATE AND DISTINCT OBLIGATIONS OF CCCFA.
ANY FUTURE BONDS OR CONTRACTS WILL NOT BE SECURED BY OR PAYABLE FROM THE
REVENUES PLEDGED BY THE INDENTURE TO THE PAYMENT OF THE BONDS, AND THE
BONDS WILL NOT BE SECURED BY OR PAYABLE FROM THE REVENUES DERIVED FROM ANY FUTURE PROJECT, CLEAN ENERGY PROJECT OR CONTRACT OF CCCFA.
Limited Liability
CCCFA DOES NOT HAVE THE POWER TO LEVY AD VALOREM PROPERTY TAXES.
ALL BONDS ISSUED BY CCCFA ARE PAYABLE SOLELY FROM THE REVENUES AND
RECEIPTS DERIVED FROM ITS ACTIVITIES PURSUANT TO ITS STATUTORY PURPOSES AND POWERS AND IN ACCORDANCE WITH THE APPLICABLE FINANCING DOCUMENTS. THE
BONDS ARE PAYABLE SOLELY FROM AND SECURED SOLELY BY THE TRUST ESTATE PLEDGED PURSUANT TO THE INDENTURE.
COMMUNITY CHOICE AGGREGATORS
General
Section 331.1 of the Public Utilities Code provides for the establishment of “community choice aggregators” (a “CCA”). A CCA may be established by any city, county, or city and county whose governing board elects to combine the loads of its residents, businesses, and municipal facilities in a community-wide electricity buyers’ program, and by any group of cities, counties, or cities and counties whose governing boards have elected to combine the loads of their programs, through the formation of a joint powers agency established under Joint Powers Act, provided in either case that the entity is not within the jurisdiction of a local publicly owned electric utility that provided electrical service as of January 1, 2003. “Local publicly owned electric utility” means a municipality or municipal corporation operating as a “public utility” and certain municipal utility districts, public utility districts, irrigation districts, or joint powers authorities that include one or more of these agencies and that owns generation or transmission facilities or furnishes electric services over its own or its members’ electric distribution systems.
Community Choice Service Model
Once a community forms or joins a CCA, the CCA is the default energy provider in that community. The CCA procures energy for customers in that community, but the investor-owned utility for Attachment Staff Report Item 17L
76 that community continues to provide transmission, distribution and billing services to customers. Revenues from the sale of energy by the CCA are delivered by the investor-owned utility to the CCA as they are received over the course of the billing period.
Service Contract Requirements and Registration with the Public Utilities Commission CCAs are required to have an operating service agreement with the applicable investor-owned utility prior to furnishing electric service to consumers within its jurisdiction. The service agreement must include performance standards that govern the business and operational relationship between the CCA and the investor-owned utility. CCAs are also required to register with the California Public Utilities Commission (the “PUC”), which may require additional information to ensure compliance with basic consumer protection rules and other procedural matters. Once notified of a CCA program, the applicable investor-owned utility is required to transfer all applicable accounts to the CCA within a 30-day period from the date of the close of the utility’s normally scheduled monthly metering and billing process.
Customer Participation and Opt-out Rights
Participation in a CCA is voluntary. Each local government seeking to form or join a CCA must adopt an appropriate authorizing resolution or ordinance. When a community forms or joins a CCA, customers are given advance notice and have the choice to opt-out of the CCA program prior to or after transition to the CCA, and instead receive electricity from the applicable investor-owned utility. Customers that do not opt-out are automatically enrolled in the program. Customers have the option to opt out of the program subject to a fee.
Regulatory Compliance
CCAs are “load-serving entities” and as such are required to comply with the renewable portfolio standards and reliability standards established by the PUC and the California Energy Commission (the “CEC”) and file integrated resource plans and other periodic reports with the PUC and the CEC.
Cost Recovery Related to Transfer of Customers to a CCA Although investor-owned utilities do not purchase power for CCA customers, they continue to deliver the power. Investor-owned utilities also have the obligation to provide electric service to customers that opt out of CCA service as the “provider of last resort.” In order to compensate investor-owned utilities for investments in power generation and long-term power purchase contracts associated with the loss of customers to CCAs, the PUC has established a “power charge indifference adjustment” (the “PCIA”) applicable to CCA customers. The PCIA is calculated by taking the difference between (i) the “actual portfolio cost” related to utility’s power procurement (e.g., utility-owned generation and purchased power), and (ii) the “market value of the portfolio,” which is measured by the Market Price Benchmark (the “MPB”) and the megawatt hours of generation.
The MPB is based on a PUC approved methodology for calculating the current market cost of renewables and natural gas-fueled power. If the investor-owned utility’s actual portfolio cost is above-market value, the departing load customers pay their share of the difference in the form of a PCIA based on their power consumption. The amount of the PCIA applicable to a CCA customer depends on when a customer left the investor-owned utility and what the investor-owned utility’s portfolio was at the time.
Each departing load customer pays the assigned “vintage PCIA.” For example, a customer who departed Attachment Staff Report Item 17L
77 in 2019 pays the “2019 vintage PCIA” which only includes the above market costs of pre-2020 vintage power procured by the investor-owned utility.
In addition to PCIA charges, CCA customers are required to pay certain other “non-bypassable departing load charges,” including a nuclear decommissioning charge, a public purpose charge and a cost allocation charge to pay for new resources needed for ongoing system reliability.
THE COMMODITY SWAPS
Set forth below is a summary of certain provisions of the Commodity Swaps. This summary does not purport to be a complete description of the terms and conditions of the Commodity Swaps and accordingly is qualified by reference to the full text of the Commodity Swaps.
Payments of fixed and floating amounts under the Commodity Swaps described herein are not made until and unless either (a) the Assignment Agreements terminate, the Assigned Rights and Obligations under the Assigned PPAs revert to the Project Participant, and Base Quantities are delivered by the Electricity Supplier or (b) the Project Participant assigns a Future Assigned PPA to J. Aron. Base Quantities are not expected to be delivered during the Initial Interest Rate Period and the Initially Assigned PPAs are expected to be in effect for the entire Initial Interest Rate Period, and as such, payments under the Commodity Swaps are not expected to be made during the Initial Interest Rate Period.
General
CCCFA has entered into the CCCFA Commodity Swap under which, if the Commodity Swaps become active upon the delivery of Base Quantities or Assigned Quantities from Future Assigned PPAs, CCCFA will pay a market-based index price at a specified pricing point and will receive a fixed electricity price for notional quantities that correspond to the quantities of electricity and the related delivery point under the Master Power Supply Agreement. Under the CCCFA Commodity Swap, if active, for each calendar month that the relevant floating price of electricity at the delivery point is greater than the fixed price specified in the CCCFA Commodity Swap on an aggregate net basis for all delivery hours in such month and all delivery points, CCCFA will be obligated to pay to the Commodity Swap Counterparty (on an aggregate net basis for all hours in such month) an amount equal to the product of (x) the difference between the floating price and the fixed price for each such hour multiplied by (y) a notional quantity equal to the quantity of electricity scheduled to be delivered at the delivery point during such hour by the Electricity Supplier under the Master Power Supply Agreement. If the fixed price specified in the CCCFA Commodity Swap is greater than the relevant floating price of electricity on an aggregate net basis for all delivery hours in such month and all delivery points, the Commodity Swap Counterparty will be obligated to pay CCCFA (on an aggregate net basis for all hours in such month) an amount equal to the product of (x) the difference between the fixed price and floating price for each such hour multiplied by (y) a notional quantity equal to the quantity of electricity scheduled to be delivered at the delivery point during such hour by the Electricity Supplier under the Master Power Supply Agreement. If the relevant floating price for a calendar month is equal to the specified fixed price, no payment will be owed by either party to the other under the CCCFA Commodity Swap.
The Electricity Supplier has entered into the Electricity Supplier Commodity Swap with the same Commodity Swap Counterparty under which, if the Commodity Swaps become active upon the delivery of Base Quantities or Assigned Quantities under Future Assigned PPAs, the Electricity Supplier pays a fixed Attachment Staff Report Item 17L
78 electricity price and receives a floating electricity price for the same notional quantities at the same pricing points.
Each of the Commodity Swaps will become active upon the commencement of deliveries of Base Quantities under the Master Power Supply Agreement, and, in such case, the Commodity Swaps will remain in effect so long as deliveries of Base Quantities remain in effect under the Master Power Supply Agreement, unless a Commodity Swap is terminated earlier in accordance with the terms thereof. Likewise, each of the Commodity Swaps will become active upon assignment by the Project Participant of a Future Assigned PPA to J. Aron, and, in such case, the Commodity Swaps will remain in effect so long as deliveries of Assigned Quantities remain in effect under such Future Assigned PPA, unless either such Commodity Swap is terminated earlier in accordance with the terms thereof.
Form of Commodity Swaps
Each of the Commodity Swaps has been entered into as a contingent price agreement under a 2002 ISDA Master Agreement with certain amendments and elections under such Master Agreement that have been agreed to by the parties. The Commodity Swaps have an initial term of two calendar months, and thereafter rolling one-month terms that renew automatically upon the payment due date of each monthly net settlement amount due thereunder through the term of the Delivery Period under the Master Power Supply Agreement unless an early termination date occurs under the Commodity Swaps.
Payment
If such Commodity Swaps become active, for each month of scheduled deliveries and notional amounts, each party with a net obligation under a Commodity Swap (based on the relative values of the fixed price and relevant index prices) will pay that net obligation to the other party. Payments, if any, under the Commodity Swaps are due in the calendar month following the month to which the applicable day-ahead market prices relate, on the 24th day of the month (or preceding business day) in the case of the Electricity Supplier Commodity Swap and on the 25th day of the month (or next business day) in the case of the CCCFA Commodity Swap.
Early Termination
Each of the Commodity Swaps will be subject to early termination under certain circumstances.
Early termination can be triggered automatically or upon the election by the non-defaulting party or non-affected party as summarized below.
No settlement or other termination payment (other than Unpaid Amounts as defined in the Commodity Swaps) will be due to any party as a result of any early termination of any Commodity Swap.
Automatic Termination of Commodity Swaps. Each of the following events would result in the automatic termination of the CCCFA Commodity Swap and the Electricity Supplier Commodity Swap:
• the occurrence of an Electricity Delivery Termination Date under the Master Power Supply Agreement for any reason, in which case the Commodity Swaps will terminate automatically on such date;
• delivery by CCCFA or the Commodity Swap Counterparty of a notice of termination of the CCCFA Commodity Swap results in the automatic termination of the Electricity Attachment Staff Report Item 17L
79 Supplier Commodity Swap, and delivery by the Electricity Supplier or the Commodity Swap Counterparty of a notice of termination of the Electricity Supplier Commodity Swap results in the automatic termination of the CCCFA Commodity Swap, in each case on the Early Termination Date specified in such notice (as defined in the respective Commodity Swap); and
• in the case of the CCCFA Commodity Swap only, a party’s failure to pay any amount when due thereunder (notwithstanding any payments made by the Custodian under the Custodial Agreements) that is not remedied within three business days after notice, in which case the CCCFA Commodity Swap will terminate automatically on such date.
Elective Termination of the CCCFA Commodity Swap. Each of the following events of default and termination events would provide the non-defaulting party or the non-affected party the right to terminate the CCCFA Commodity Swap if it is not cured within the applicable cure period:
• a party becomes subject to certain insolvency events in the manner specified in the CCCFA Commodity Swap;
• a credit support default with respect to the Commodity Swap Counterparty; • a reduction below certain specified minimum ratings in the credit rating assigned by a specified rating agency to (a) the senior, unsecured long-term debt obligations (not supported by third party credit enhancements) of BPNA (defined below), or (b) if there is no such rating, then BPNA’s issuer rating (“Counterparty’s Credit Rating”); • amendment of the Indenture in breach of the Commodity Swap Counterparty’s consent rights thereunder;
• the amendment, without the Commodity Swap Counterparty’s consent, of certain provisions of the Master Power Supply Agreement relating to the termination or assignment thereof, or that would have certain effects on the terminations of the Commodity Swaps; and
• CCCFA fails to promptly exercise its right to suspend all commodity deliveries under the Clean Energy Purchase Contract to the Project Participant in the event it fails to pay when due any amounts owed to CCCFA thereunder.
Elective Termination of the Electricity Supplier Commodity Swap. Each of the following events of default and termination events would provide the non-defaulting party or the non-affected party the right to terminate the Electricity Supplier Commodity Swap if it is not cured within the applicable cure period:
• if a party becomes subject to certain insolvency events in the manner specified in the Electricity Supplier Commodity Swap;
• a credit support default with respect to the Commodity Swap Counterparty or the Electricity Supplier;
• any reduction in the Counterparty’s Credit Rating (as defined above) below certain specified minimum ratings;
Attachment Staff Report Item 17L
80 • the amendment, without the Commodity Swap Counterparty’s consent, of (a) certain provisions of the Master Power Supply Agreement relating to the termination or assignment thereof, or that would have certain effects on the termination of the Commodity Swaps or (b) certain provisions of the Receivables Purchase Provisions relating to the purchase of any Swap Deficiency Call Receivables Amount by the Electricity Supplier; • a party’s failure to pay amounts when due under the Electricity Supplier Commodity Swap (notwithstanding any payments made by the Custodian under the Custodial Agreements) that is not remedied within one business day after notice; and • Electricity Supplier’s failure to make, when due, any payment to CCCFA under the remarketing provisions of the Master Power Supply Agreement that results in a Swap Payment Deficiency with respect to the CCCFA Commodity Swap.
Other Listed Events. The Commodity Swaps contain other listed events (including breach or repudiation, misrepresentation, illegality and certain tax and credit events) that do not give CCCFA, the Electricity Supplier or the Commodity Swap Counterparty the right to designate an early termination date, but which permit the non-defaulting party or the non-affected party to pursue such equitable remedies, including specific performance, as may be available.
Replacement of Commodity Swaps. See “THE MASTER POWER SUPPLY AGREEMENT – Replacement of Commodity Swaps” for a description of certain provisions of the Indenture and the Master Power Supply Agreement regarding the replacement of a Commodity Swap that is terminated or subject to termination.
Commodity Swap Custodial Agreements
The Electricity Supplier will enter into a Custodial Agreement, dated as of the Initial Issue Date (the “Electricity Supplier Custodial Agreement”), with the Commodity Swap Counterparty and U.S. Bank Trust Company, National Association, as Trustee and as custodian (in such capacity, the “Custodian”), to administer payments under the Electricity Supplier Commodity Swap. CCCFA will enter into a Custodial Agreement, dated as of the Initial Issue Date (the “CCCFA Custodial Agreement,” and together with the Electricity Supplier Custodial Agreement, the “Custodial Agreements”), with the Commodity Swap Counterparty, the Trustee and the Custodian, to administer payments under the CCCFA Commodity Swap.
The Custodial Agreements contain provisions designed to mitigate risks to CCCFA and Bondholders resulting from a failure of the Commodity Swap Counterparty to make payments to CCCFA under the CCCFA Commodity Swap in the event the Commodity Swaps become active, and mitigate risks to the Electricity Supplier resulting from a failure of the Commodity Swap Counterparty to make payments to the Electricity Supplier under the Electricity Supplier Commodity Swap.
Payments made by the Electricity Supplier under the Electricity Supplier Commodity Swap, if any, will be made to a custodial account maintained by the Custodian under the Electricity Supplier Custodial Agreement. Such amounts will not be released until the Custodian has confirmed that the amount payable to CCCFA by the Commodity Swap Counterparty under the CCCFA Commodity Swap for such month has been paid. If the Commodity Swap Counterparty does not make a required payment under the CCCFA Commodity Swap and such payment remains unpaid after the expiration of any grace period, the Custodian will pay the amount that the Electricity Supplier paid under the Electricity Supplier Commodity Swap (which such amount is held in custody) to the Trustee for deposit in the Revenue Fund and that payment Attachment Staff Report Item 17L
81 will be treated as a Commodity Swap Receipt. Additionally, if the Electricity Supplier Commodity Swap terminates, the Electricity Supplier will continue to make payments to the custodial account as if the Electricity Supplier Commodity Swap were still in effect until the earlier of (i) replacement of the Commodity Swaps in accordance with the requirements of the Master Power Supply Agreement and (ii) the occurrence of an Electricity Delivery Termination Date under the Master Power Supply Agreement, and such payments will be used to ensure that CCCFA receives deposits in the Revenue Fund as described in the preceding sentence in the event that the Commodity Swap Counterparty does not make a required payment under the CCCFA Commodity Swap.
Payments made by CCCFA under the CCCFA Commodity Swap, if any, will be made to a custodial account maintained by the Custodian under the CCCFA Custodial Agreement. Such amounts will be paid to the Commodity Swap Counterparty on each date when due, provided that, if prior to any such date, the Electricity Supplier has provided written notice to the Custodian to hold such payment (a “Hold Notice”) the Custodian shall withdraw such amounts only upon written confirmation from the Electricity Supplier that the amount payable to the Electricity Supplier by the Commodity Swap Counterparty under the Electricity Supplier Commodity Swap for such month has been paid. If the Commodity Swap Counterparty does not make a required payment under the Electricity Supplier Commodity Swap and the Custodian has received a Hold Notice, and such payment remains unpaid after the expiration of any grace period, the Custodian will pay the amount that CCCFA paid under the CCCFA Commodity Swap (which such amount is held in custody) to the Electricity Supplier. Additionally, if the CCCFA Commodity Swap terminates, CCCFA will continue to make payments to the custodial account as if the CCCFA Commodity Swap were still in effect until the earlier of (i) replacement of the Commodity Swaps in accordance with the requirements of the Master Power Supply Agreement and (ii) the occurrence of an Electricity Delivery Termination Date under the Master Power Supply Agreement, and such payments will be withdrawn by the Custodian and paid to the Electricity Supplier.
THE COMMODITY SWAP COUNTERPARTY
Set forth below is certain information regarding the Commodity Swap Counterparty. CCCFA assumes no responsibility for such information and cannot guarantee the accuracy thereof. Under no circumstance is the Commodity Swap Counterparty obligated to pay any amount owed in respect of the Bonds.
[SWAP COUNTERPARTY]
[__]
CONTINUING DISCLOSURE
CCCFA. CCCFA will enter into a Continuing Disclosure Undertaking (the “Undertaking”) for the benefit of the beneficial owners of the Bonds to send certain information annually and to provide notice of certain events to the MSRB’s EMMA system for municipal securities disclosures, pursuant to the requirements of Section (b)(5) of Rule 15c2-12 (“Rule 15c2-12”) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.
A failure by CCCFA to comply with the Undertaking will not constitute an event of default under the Indenture or the Bonds and Beneficial Owners of the Bonds shall only be entitled to the remedies for any such failure described in the Undertaking. A failure by CCCFA to comply with the Undertaking must be reported in accordance with Rule 15c2-12 and must be considered by any broker, dealer or municipal Attachment Staff Report Item 17L
82 securities dealer before recommending the purchase or sale of the Bonds in the secondary market.
Consequently, such a failure may adversely affect the transferability and liquidity of the Bonds and their market price.
The Undertaking and commitments of CCCFA described under this heading and in APPENDIX E hereto to furnish the above-described documents and information are agreements and commitments solely of CCCFA, and the Underwriter has no responsibility to ensure that CCCFA complies with any such Undertaking or commitment. In addition, the Underwriter makes no representation that any such documents or information will be furnished, or that any such documents or information so furnished will be accurate or complete, or sufficient for the purposes for which they may be used.
CCCFA has previously entered into continuing disclosure undertakings pursuant to Rule 15c2-12.
CCCFA has adopted a written policy that sets forth procedures for compliance with the federal tax and continuing disclosure requirements applicable to its bonds. The policy includes, among other things, procedures that are intended to promote CCCFA’s compliance with the Undertaking.
During the five-year period preceding the date of this Official Statement, CCCFA has determined that certain financial information relating to one of its project participants for its fiscal year ended June 30, 2021 and unaudited financial statements for its fiscal year ended December 31, 2023 were filed late.
CCCFA subsequently filed such information and unaudited financial statements on the Municipal Securities Rulemaking Board Electronic Municipal Market Access System (“EMMA”). CCCFA has engaged BLX Group to assist with its continuing disclosure obligations.
Project Participant. Pursuant to its Clean Energy Purchase Contract, the Project Participant has agreed to provide to CCCFA certain annual operating and financial information, which information will enable CCCFA to comply with the Undertaking. Failure of the Project Participant to provide such information is not a default under the Clean Energy Purchase Contract, but any such failure entitles CCCFA to take such actions and to initiate such proceedings as shall be necessary to cause the Project Participant to comply with its undertaking as set forth in the Clean Energy Purchase Contract.
LITIGATION
There are no legal proceedings pending against CCCFA relating to the issuance, sale or delivery of the Bonds which could adversely affect the Clean Energy Project. In addition, there is no litigation pending or, to the knowledge of CCCFA, threatened against or affecting CCCFA or in any way questioning or in any manner affecting the validity or enforceability against CCCFA of the Bonds, the Clean Energy Purchase Contract, the Master Power Supply Agreement, the CCCFA Commodity Swap, the Receivables Purchase Provisions, the Investment Agreements, the Custodial Agreements, the Indenture, or the pledge of the Trust Estate under the Indenture.
The Project Participant reports that there is no litigation pending or, to its knowledge, threatened against it questioning or in any manner affecting the validity or enforceability of the Clean Energy Purchase Contract.
FINANCIAL STATEMENTS
CCCFA’s audited financial statements for the fiscal year ended December 31, 2024 are available on the MSRB’s EMMA system described above, and are hereby incorporated by reference into this Official Statement.
Attachment Staff Report Item 17L
83 The Project Participant’s audited financial statements for the [fiscal year ended December 31, 2023] are attached hereto as APPENDIX B. [James Marta & Company LLP has provided its consent for the inclusion of the Project Participant’s audited financial statements for the fiscal year ended December 31, 2023 in this Official Statement.]
Pursuant to the Undertaking described under “CONTINUING DISCLOSURE” above, CCCFA has agreed to file its audited financial statements and the audited financial statements of the Project Participant, commencing with its audited financial statements for its fiscal year ended December 31, 2024 and the Project Participant’s audited financial statements for its fiscal year ended [June 30, 2025], on the MSRB’s EMMA system described above.
FINANCIAL ADVISOR
[PFM Financial Advisors LLC, Los Angeles, California (the “Financial Advisor”), has served as financial advisor to the Project Participant in connection with Clean Energy Project and the Bonds. Among other responsibilities, the Financial Advisor has provided advice and recommendations to the Project Participant with respect to the structure, timing, terms of and similar matters relating to the Bonds, bond market conditions, costs of issuance and other matters relating to the Bonds and the Clean Energy Project.
The Financial Advisor has also provided advice and recommendations to CCCFA, and has served as CCCFA’s “qualified independent representative” with respect to the CCCFA Commodity Swap. The Financial Advisor has reviewed this Official Statement, but has not audited, authenticated or otherwise verified the information set forth herein, and makes no guaranty, warranty or representation with respect to the accuracy and completeness of the information contained in this Official Statement. The Financial Advisor’s fees are contingent upon the sale and delivery of the Bonds.]
UNDERWRITING
Goldman Sachs & Co. LLC (the “Underwriter”), pursuant to the purchase contract relating to the Bonds between CCCFA and the Underwriter, has agreed, subject to certain conditions, to purchase the Bonds from CCCFA at an aggregate purchase price of $_____________ (representing the principal amount of the Bonds, plus original issue premium of $_____________, less underwriter’s discount of $___________). The obligation of the Underwriter to purchase the Bonds is subject to certain terms and conditions set forth in the purchase contract. The Underwriter is obligated to purchase all the Bonds if any are purchased. The Bonds may be offered and sold to certain dealers and others at prices lower than the initial offering prices, and such initial offering prices may be changed from time to time by the Underwriter.
The Underwriter has no obligations other than those that are set forth in the purchase contract. The payment of the Bonds is not guaranteed by the Underwriter.
Goldman Sachs & Co. LLC (together with its affiliates) is a full service financial institution engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. Goldman Sachs & Co. LLC and its affiliates have provided, and may in the future provide, a variety of these services to CCCFA and to persons and entities with relationships with CCCFA, for which they received or will receive customary fees and expenses.
In the ordinary course of its various business activities, Goldman Sachs & Co. LLC and its affiliates, officers, directors and employees may purchase, sell or hold a broad array of investments and Attachment Staff Report Item 17L
84 actively trade securities, derivatives, loans, Electricity, currencies, credit default swaps and other financial instruments for their own accounts and for the accounts of their customers, and such investment and trading activities may involve or relate to assets, securities and/or instruments of CCCFA (directly, as collateral securing other obligations or otherwise) and/or persons and entities with relationships with CCCFA.
Goldman Sachs & Co. LLC and its affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients that they should acquire, long and/or short positions in such assets, securities and instruments.
CERTAIN RELATIONSHIPS
The Electricity Supplier, which is also the depositor under the Funding Agreement, the Receivables Purchaser and a party to the Electricity Purchase, Sale and Service Agreement and the Electricity Supplier Commodity Swap, is wholly owned by J. Aron. J. Aron is the sole member of the Electricity Supplier, the electricity seller under the Electricity Purchase, Sale and Service Agreement, and is a wholly-owned subsidiary of GSG. The payment obligations of J. Aron to the Electricity Supplier under the Electricity Purchase, Sale and Service Agreement are unconditionally guaranteed by GSG under the EPSSA Guaranty.
The Underwriter of the Bonds, Goldman Sachs & Co. LLC, is also a wholly owned subsidiary of GSG.
None of the Electricity Supplier, J. Aron nor GSG has guaranteed or is responsible for the payment of the Bonds. The obligations of the Electricity Supplier are limited to those set forth in the Master Power Supply Agreement, the Receivables Purchase Provisions and the Electricity Supplier Commodity Swap.
The obligations of J. Aron are limited to those set forth in the Electricity Purchase, Sale and Service Agreement. None of the Electricity Supplier, J. Aron nor GSG takes any responsibility for the information set forth in this Official Statement other than the information set forth under the caption “GSG, J. ARON AND THE ELECTRICITY SUPPLIER.”
RATING
Moody’s Investors Service, Inc. is expected to assign a municipal bond rating of “[A1]” to the Bonds.
CCCFA has furnished to each rating agency that is expected to rate the Bonds certain information, including information not included in this Official Statement, about CCCFA and the Bonds. Generally, a rating agency bases its ratings on that information and on independent investigations, studies and assumptions made by each rating agency. A securities rating is not a recommendation to buy, sell or hold securities. There is no assurance that a rating, once obtained, will continue for any given period of time or that it will not be revised downward or withdrawn entirely if, in the opinion of the rating agency, circumstances so warrant. Any such downward revision or withdrawal could have an adverse effect on the marketability or market price of the Bonds. CCCFA has not undertaken any responsibility after issuance of the Bonds to assure the maintenance of the ratings applicable thereto or to oppose any revision or withdrawal of such ratings.
TAX MATTERS
In the opinion of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, based upon an analysis of existing laws, regulations, rulings and court decisions, and assuming, among other matters, the accuracy of certain representations and compliance with certain covenants, interest on the Bonds is excluded from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the Attachment Staff Report Item 17L
85 “Code”) and is exempt from State of California personal income taxes. Bond Counsel is of the further opinion that interest on the Bonds is not a specific preference item for purposes of the federal individual alternative minimum tax. Bond Counsel observes that interest on the Bonds included in adjusted financial statement income of certain corporations is not excluded from the federal corporate alternative minimum tax. Bond Counsel expresses no opinion regarding any other tax consequences related to the ownership or disposition of, or the amount, accrual or receipt of interest on, the Bonds. A complete copy of the proposed form of opinion of Bond Counsel is set forth in APPENDIX F hereto.
To the extent the issue price of any maturity of the Bonds is less than the amount to be paid at maturity of such Bonds (excluding amounts stated to be interest and payable at least annually over the term of such Bonds), the difference constitutes “original issue discount,” the accrual of which, to the extent properly allocable to each Beneficial Owner thereof, is treated as interest on the Bonds which is excluded from gross income for federal income tax purposes and exempt from State of California personal income taxes. For this purpose, the issue price of a particular maturity of the Bonds is the first price at which a substantial amount of such maturity of the Bonds is sold to the public (excluding bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers).
The original issue discount with respect to any maturity of the Bonds accrues daily over the term to maturity of such Bonds on the basis of a constant interest rate compounded semiannually (with straight-line interpolations between compounding dates). The accruing original issue discount is added to the adjusted basis of such Bonds to determine taxable gain or loss upon disposition (including sale, redemption, or payment on maturity) of such Bonds. Beneficial Owners of the Bonds should consult their own tax advisors with respect to the tax consequences of ownership of Bonds with original issue discount, including the treatment of Beneficial Owners who do not purchase such Bonds in the original offering to the public at the first price at which a substantial amount of such Bonds is sold to the public.
Bonds purchased, whether at original issuance or otherwise, for an amount higher than their principal amount payable at maturity (or, in some cases, at their earlier call date) (“Premium Bonds”) will be treated as having amortizable bond premium. No deduction is allowable for the amortizable bond premium in the case of bonds, like the Premium Bonds, the interest on which is excluded from gross income for federal income tax purposes. However, the amount of tax-exempt interest received, and a Beneficial Owner’s basis in a Premium Bond, will be reduced by the amount of amortizable bond premium properly allocable to such Beneficial Owner. Beneficial Owners of Premium Bonds should consult their own tax advisors with respect to the proper treatment of amortizable bond premium in their particular circumstances.
The Code imposes various restrictions, conditions and requirements relating to the exclusion from gross income for federal income tax purposes of interest on obligations such as the Bonds. CCCFA has made certain representations and covenanted to comply with certain restrictions, conditions and requirements designed to ensure that interest on the Bonds will not be included in federal gross income.
Inaccuracy of these representations or failure to comply with these covenants may result in interest on the Bonds being included in gross income for federal income tax purposes, possibly from the date of original issuance of the Bonds. The opinion of Bond Counsel assumes the accuracy of these representations and compliance with these covenants. Bond Counsel has not undertaken to determine (or to inform any person) whether any actions taken (or not taken), or events occurring (or not occurring), or any other matters coming to Bond Counsel’s attention after the date of issuance of the Bonds may adversely affect the value of, or the tax status of interest on, the Bonds. Accordingly, the opinion of Bond Counsel is not intended to, and may not, be relied upon in connection with any such actions, events or matters.
Attachment Staff Report Item 17L
86 Although Bond Counsel is of the opinion that interest on the Bonds is excluded from gross income for federal income tax purposes and is exempt from State of California personal income taxes, the ownership or disposition of, or the accrual or receipt of amounts treated as interest on, the Bonds may otherwise affect a Beneficial Owner’s federal, state or local tax liability. The nature and extent of these other tax consequences depends upon the particular tax status of the Beneficial Owner or the Beneficial Owner’s other items of income or deduction. Bond Counsel expresses no opinion regarding any such other tax consequences.
Current and future legislative proposals, if enacted into law, clarification of the Code or court decisions may cause interest on the Bonds to be subject, directly or indirectly, in whole or in part, to federal income taxation or to be subject to or exempted from state income taxation, or otherwise prevent Beneficial Owners from realizing the full current benefit of the tax status of such interest. The introduction or enactment of any such legislative proposals, or clarification of the Code or court decisions may also affect, perhaps significantly, the market price for, or marketability of, the Bonds. Prospective purchasers of the Bonds should consult their own tax advisors regarding the potential impact of any pending or proposed federal or state tax legislation, regulations or litigation, as to which Bond Counsel expresses no opinion.
The opinion of Bond Counsel is based on current legal authority, covers certain matters not directly addressed by such authorities, and represents Bond Counsel’s judgment as to the proper treatment of the Bonds for federal income tax purposes. It is not binding on the Internal Revenue Service (“IRS”) or the courts. Furthermore, Bond Counsel cannot give and has not given any opinion or assurance about the future activities of CCCFA, or about the effect of future changes in the Code, the applicable regulations, the interpretation thereof or the enforcement thereof by the IRS. CCCFA has covenanted, however, to comply with the requirements of the Code.
Bond Counsel’s engagement with respect to the Bonds ends with the issuance of the Bonds, and, unless separately engaged, Bond Counsel is not obligated to defend CCCFA or the Beneficial Owners regarding the tax-exempt status of the Bonds in the event of an audit examination by the IRS. Under current procedures, the Beneficial Owners would have little, if any, right to participate in the audit examination process. Moreover, because achieving judicial review in connection with an audit examination of tax-exempt bonds is difficult, obtaining an independent review of IRS positions with which CCCFA legitimately disagrees may not be practicable. Any action of the IRS, including but not limited to selection of the Bonds for audit, or the course or result of such audit, or an audit of bonds presenting similar tax issues, may affect the market price for, or the marketability of, the Bonds, and may cause CCCFA or the Beneficial Owners to incur significant expense.
Payments on the Bonds generally will be subject to U.S. information reporting and possibly to “backup withholding.” Under Section 3406 of the Code and applicable U.S. Treasury Regulations issued thereunder, a non-corporate Beneficial Owner of Bonds may be subject to backup withholding with respect to “reportable payments,” which include interest paid on the Bonds and the gross proceeds of a sale, exchange, redemption, retirement or other disposition of the Bonds. The payor will be required to deduct and withhold the prescribed amounts if (i) the payee fails to furnish a U.S. taxpayer identification number (“TIN”) to the payor in the manner required, (ii) the IRS notifies the payor that the TIN furnished by the payee is incorrect, (iii) there has been a “notified payee underreporting” described in Section 3406(c) of the Code or (iv) the payee fails to certify under penalty of perjury that the payee is not subject to withholding under Section 3406(a)(1)(C) of the Code. Amounts withheld under the backup withholding rules may be refunded or credited against a Beneficial Owner’s federal income tax liability, if any, provided that the required information is timely furnished to the IRS. Certain Beneficial Owners (including among others, Attachment Staff Report Item 17L
87 corporations and certain tax-exempt organizations) are not subject to backup withholding. The failure to comply with the backup withholding rules may result in the imposition of penalties by the IRS.
APPROVAL OF LEGAL MATTERS
The validity of the Bonds and certain other legal matters are subject to the approving opinion of Orrick, Herrington & Sutcliffe LLP, Bond Counsel. A complete copy of the proposed form of the opinion of Bond Counsel is contained in APPENDIX F to this Official Statement.
Certain legal matters will be passed upon for CCCFA by its General Counsel; for the Project Participant by [Orrick, Herrington & Sutcliffe LLP]; for the Electricity Supplier by its counsel, Sheppard, Mullin, Richter & Hampton LLP; for GSG by its counsel, Sullivan & Cromwell LLP; for the Funding Recipient by its counsel, [__]; and for the Underwriter by its counsel, Nixon Peabody LLP.
CCCFA will receive legal opinions on the date of original delivery of the Bonds, to the effect that the resolution authorizing the Project Participant to execute the Clean Energy Purchase Contract has been duly adopted, and that the Clean Energy Purchase Contract has been duly executed and delivered by the Project Participant and constitutes the valid and binding obligation of the Project Participant. The enforceability of the Clean Energy Purchase Contract may be limited by or subject to applicable bankruptcy, insolvency, moratorium, reorganization, other laws affecting creditors’ rights generally and by general principles of equity, public policy and commercial reasonableness.
MISCELLANEOUS
Any statements in this Official Statement involving matters of opinion, estimates or forecasts, whether or not expressly so stated, are intended as such and not as representations of fact. The Appendices attached hereto are an integral part of this Official Statement and must be read in conjunction with the foregoing material. This Official Statement is not to be construed as a contract or agreement between CCCFA and the purchasers or owners of the Bonds.
The delivery of this Official Statement has been duly authorized by the Board of Directors of CCCFA.
CALIFORNIA COMMUNITY CHOICE FINANCING
AUTHORITY
By: __________________________________________
Attachment Staff Report Item 17L
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APPENDIX A
THE PROJECT PARTICIPANT
AVA COMMUNITY ENERGY AUTHORITY
[To be inserted]
Attachment Staff Report Item 17L
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APPENDIX B
AUDITED FINANCIAL STATEMENTS OF THE PROJECT PARTICIPANT FOR [FISCAL YEAR ENDED JUNE 30, 2024]
Attachment Staff Report Item 17L
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APPENDIX E
FORM OF CONTINUING DISCLOSURE UNDERTAKING
FOR THE PURPOSE OF PROVIDING
CONTINUING DISCLOSURE INFORMATION
UNDER SECTION (b)(5) OF RULE 15c2-12
[closing date]
This Continuing Disclosure Undertaking (the “Agreement”) is executed and delivered by California Community Choice Financing Authority (“CCCFA”) in connection with the issuance of its $_____________ Clean Energy Project Revenue Bonds Series 2025[_] (Green Bonds) (the “Bonds”). The Bonds are being issued pursuant to a Trust Indenture, dated as of _______ 1, 2025 (the “Indenture”), between CCCFA and U.S. Bank Trust Company, National Association, as trustee.
In consideration of the issuance of the Bonds by CCCFA and the purchase of such Bonds by the beneficial owners thereof, CCCFA covenants and agrees as follows:
1. Purpose of This Agreement. This Agreement is executed and delivered by CCCFA as of the date set forth below, for the benefit of the beneficial owners of the Bonds and in order to assist the Participating Underwriter in complying with the requirements of the Rule (as defined below). CCCFA represents that it will be the only “obligated person” within the meaning of the Rule with respect to the Bonds at the time the Bonds are delivered to the Participating Underwriter and that no other person is expected to become so committed at any time after the issuance of the Bonds.
2. Definitions. (a) The terms set forth below shall have the following meanings in this Agreement, unless the context clearly otherwise requires. “Annual Financial Information” means the financial information and operating data described in Exhibit I.
“Annual Financial Information Disclosure” means the dissemination of disclosure concerning Annual Financial Information and the dissemination of the Audited Financial Statements as set forth in Section 4.
“Audited Financial Statements” means collectively, the audited financial statements of CCCFA and the Project Participant, each prepared pursuant to the standards and as described in Exhibit I. “Business Day” means any day other than (a) a Saturday or Sunday, or (b) a day on which commercial banks in New York, New York or the cities in which are located the designated corporate trust offices of the Dissemination Agent or the designated operational office of CCCFA are authorized by law or executive order to close.
“Commission” means the Securities and Exchange Commission.
Attachment Staff Report Item 17L
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“Dissemination Agent” means any agent designated as such in writing by CCCFA and which has filed with CCCFA a written acceptance of such designation, and such agent’s successors and assigns. “Electricity Supplier” means Aron Energy Prepay [__] LLC and its successors and permitted assigns.
“EMMA” means the MSRB through its Electronic Municipal Market Access system for municipal securities disclosure or through any other electronic format or system prescribed by the MSRB for purposes of the Rule.
“Exchange Act” means the Securities Exchange Act of 1934, as amended. “Final Official Statement” means the Final Official Statement dated _______, 2025, relating to the Bonds.
“Financial Obligation” means (a) a debt obligation, (b) a derivative instrument entered into in connection with, or pledged as security or a source of payment for, an existing or planned debt obligation, or (c) a guarantee of an obligation or instrument described in clause (a) or (b) of this definition; provided however, the term Financial Obligation does not include municipal securities as to which a final official statement has been provided to the MSRB consistent with the Rule. “Ledger Event” has the meaning assigned to such term in Exhibit C to the Master Power Supply Agreement.
“Master Power Supply Agreement” means the Master Power Supply Agreement dated as of ____________, 2025 between the Electricity Supplier and CCCFA. “Monthly Ledger Report” means the copies of the ledgers maintained by the Electricity Supplier pursuant to Exhibit C of the Master Power Supply Agreement and delivered each month to CCCFA pursuant to Section 9(b)(i) of such Exhibit.
“MSRB” means the Municipal Securities Rulemaking Board. “Non-Private Business Sales Ledger” and “Private Business Sales Ledger” have the meanings assigned to such terms in Exhibit C to the Master Power Supply Agreement. “Participating Underwriter” means each broker, dealer or municipal securities dealer acting as an underwriter in the primary offering of the Bonds.
“Reportable Event” means the occurrence of any of the Events with respect to the Bonds set forth in Exhibit II.
“Reportable Events Disclosure” means dissemination of a notice of a Reportable Event as set forth in Section 5.
Attachment Staff Report Item 17L
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“Rule” means Rule 15c2-12 adopted by the Commission under the Exchange Act, as the same may be amended from time to time.
“Undertaking” means the obligations of CCCFA pursuant to Sections 4 and 5. (b) Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
3. CUSIP Numbers. The CUSIP Numbers of the Bonds are as follows:
MATURITY
([_________] 1)
AMOUNT CUSIP
NUMBER
CCCFA will include the CUSIP Numbers (or applicable CUSIP Number) in all disclosure described in Sections 4 and 5 of this Agreement.
4. Annual Financial Information Disclosure. Subject to Section 9 of this Agreement, CCCFA hereby covenants that it will disseminate or cause to be disseminated on its behalf its Annual Financial Information and the Audited Financial Statements (in the form and by the dates set forth in Exhibit I) to EMMA in such manner and format and accompanied by identifying information as is prescribed by the MSRB or the Commission at the time of delivery of such information and by such time so that such entities receive the information by the dates specified. If any part of the Annual Financial Information can no longer be generated because the operations to which it is related have been materially changed or discontinued, CCCFA will disseminate a statement to such effect as part of the Annual Financial Information for the year in which such event first occurs.
If any amendment or waiver is made to this Agreement, the Annual Financial Information for the year in which such amendment is made (or in any notice or supplement provided to EMMA) shall contain a narrative description of the reasons for such amendment and its impact on the type of information being provided.
5. Reportable Events Disclosure. Subject to Section 8 of this Agreement, CCCFA hereby covenants that it will disseminate in a timely manner (not in excess of ten business days after the occurrence of the Reportable Event) Reportable Events Disclosure to EMMA in such manner and format and accompanied by identifying information as is prescribed by the MSRB or the Commission at the time of delivery of such information. References to “material” in Exhibit II refer to materiality as it is interpreted under the Exchange Act. MSRB Rule G-32 requires all EMMA filings to be in word-searchable PDF format. Notwithstanding the foregoing, notice of optional or unscheduled redemption of any Bonds or Attachment Staff Report Item 17L
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defeasance of any Bonds need not be given under this Agreement any earlier than the notice (if any) of such redemption or defeasance is given to the Bondholders pursuant to the Indenture.
6. Consequences of Failure of CCCFA to Provide Information. CCCFA shall give notice in a timely manner to EMMA of any failure to provide Annual Financial Information Disclosure when the same is due hereunder.
In the event of a failure of CCCFA to comply with any provision of this Agreement, the beneficial owner of any Bond may seek mandamus or specific performance by court order, to cause CCCFA to comply with its obligations under this Agreement. The beneficial owners of 25% or more in principal amount of the Bonds outstanding may challenge the adequacy of the information provided under this Agreement and seek specific performance by court order to cause CCCFA to provide the information as required by this Agreement. A default under this Agreement shall not be deemed an Event of Default under the Indenture, and the sole remedy under this Agreement in the event of any failure of CCCFA to comply with this Agreement shall be an action to compel performance.
7. Amendments; Waiver. Notwithstanding any other provision of this Agreement, CCCFA by resolution authorizing such amendment or waiver, may amend this Agreement, and any provision of this Agreement may be waived, if:
(a) (i) The amendment or waiver is made in connection with a change in circumstances that arises from a change in legal requirements, including without limitation pursuant to a “no-action” letter issued by the Commission, change in law, or change in the identity, nature, or status of CCCFA, or type of business conducted; or
(ii) This Agreement, as amended, or the provision, as waived, would have complied with the requirements of the Rule at the time of the primary offering, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and
(b) The amendment or waiver does not materially impair the interests of the beneficial owners of the Bonds, as determined either by parties unaffiliated with CCCFA (such as the Trustee), or by approving vote of Bondholders pursuant to the terms of the Indenture at the time of the amendment.
In the event that the Commission, the MSRB or other regulatory authority shall approve or require Annual Financial Information Disclosure or Reportable Events Disclosure to be made to a central post office, governmental agency or similar entity other than EMMA or in lieu of EMMA, CCCFA shall, if required, make such dissemination to such central post office, governmental agency or similar entity without the necessity of amending this Agreement.
8. Termination of Undertaking. The Undertaking of CCCFA shall be terminated hereunder if CCCFA no longer has any legal liability for any obligation on or relating to repayment of the Bonds under the Indenture. CCCFA shall give notice to EMMA in a timely manner if this Section is applicable.
9. Dissemination Agent. CCCFA may, from time to time, appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this Agreement, and may discharge any such Dissemination Agent with or without appointing a successor Dissemination Agent.
Attachment Staff Report Item 17L
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10. Additional Information. Nothing in this Agreement shall be deemed to prevent CCCFA from disseminating any other information, using the means of dissemination set forth in this Agreement or any other means of communication, or including any other information in any Annual Financial Information Disclosure or notice of occurrence of a Reportable Event, in addition to that which is required by this Agreement. If CCCFA chooses to include any information from any document or notice of occurrence of a Reportable Event in addition to that which is specifically required by this Agreement, CCCFA shall have no obligation under this Agreement to update such information or include it in any future disclosure or notice of occurrence of a Reportable Event. If the name of CCCFA is changed, CCCFA shall disseminate such information to EMMA.
11. Beneficiaries. This Agreement has been executed in order to assist the Participating Underwriter in complying with the Rule; however, this Agreement shall inure solely to the benefit of CCCFA, the Dissemination Agent, if any, and the beneficial owners of the Bonds, and shall create no rights in any other person or entity.
12. Recordkeeping. CCCFA shall maintain records of all Annual Financial Information Disclosure and Reportable Events Disclosure, including the content of such disclosure, the names of the entities with whom such disclosure was filed and the date of filing such disclosure.
13. Assignment. CCCFA shall not transfer its obligations under the Indenture unless the transferee agrees to assume all obligations of CCCFA under this Agreement or to execute an Undertaking under the Rule.
14. Governing Law. This Agreement shall be governed by the laws of the State of California.
CALIFORNIA COMMUNITY CHOICE FINANCING
AUTHORITY
By
Its
Attachment Staff Report Item 17L
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EXHIBIT I
ANNUAL FINANCIAL INFORMATION AND TIMING AND AUDITED
FINANCIAL STATEMENTS
“Annual Financial Information” means financial information and operating data with respect to the Clean Energy Project, including:
(a) with respect to the Project Participant updated information under the headings [“Customers – General,” “Customers – Cumulative Opt-Out Rate and Customer Retention,” “Service Rates – Current and Historical Rate Information,” “Sources of Energy – Energy Purchases,” and “Financial Information – Revenues from Energy Sales and Operating Expenses”] set forth in APPENDIX A to the Official Statement [update]; (b) the quantities of Electricity from the Clean Energy Project sold by CCCFA, whether to Project Participant or others; and
(c) such other information and data as CCCFA may deem necessary in order to comply with the requirements of the Rule.
“Audited Financial Statements” means the audited financial statements of CCCFA and the Project Participant, in each case for the most recent fiscal year (commencing with the fiscal year ended December 31, 2024 for CCCFA, and commencing with the fiscal year ended [June 30, 2025] for the Project Participant), in each case prepared in accordance with generally accepted accounting principles as promulgated to comply with governmental entities from time to time (or such other accounting principles as may be applicable to CCCFA and the Project Participant, as the case may be, in the future pursuant to applicable law).
All or a portion of the Annual Financial Information and the Audited Financial Statements set forth above may be included by reference to other documents which have been submitted to EMMA or filed with the Commission. If the information included by reference is contained in a final official statement, the final official statement must be available on EMMA. The final official statement need not be available from the Commission. CCCFA shall clearly identify each such item of information included by reference.
Annual Financial Information with respect to the Project Participant will be submitted to EMMA by 200 days after end of the Project Participant’s fiscal year.
Annual Financial Information with respect to CCCFA (i.e., the information described in clauses (b) and (c) of the definition of Annual Financial Information) will be submitted to EMMA by 200 days after end of CCCFA’s fiscal year.
Audited Financial Statements as described above should be filed at the same times as the Annual Financial Information for the Project Participant and CCCFA. If Audited Financial Statements are not available when such Annual Financial Information is filed, unaudited financial statements shall be included.
Audited Financial Statements will be submitted to EMMA no later than 30 days after availability to CCCFA.
Attachment Staff Report Item 17L
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If any change is made to the Annual Financial Information as permitted by Section 4 of the Agreement, CCCFA will disseminate a notice of such change as required by Section 4. [Remainder of Page Intentionally Left Blank]
Attachment Staff Report Item 17L
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EXHIBIT II
EVENTS WITH RESPECT TO THE BONDS
FOR WHICH REPORTABLE EVENTS DISCLOSURE IS REQUIRED
1. Principal and interest payment delinquencies
2. Non-payment related defaults, if material
3. Unscheduled draws on debt service reserves reflecting financial difficulties
4. Unscheduled draws on credit enhancements reflecting financial difficulties
5. Substitution of credit or liquidity providers, or their failure to perform
6. Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the security, or other material events affecting the tax status of the security
7. Modifications to the rights of security holders, if material
8. Bond calls, if material, and tender offers
9. Defeasances
10. Release, substitution or sale of property securing repayment of the securities, if material
11. Rating changes
12. Bankruptcy, insolvency, receivership or similar event of CCCFA.
13. The consummation of a merger, consolidation, or acquisition involving CCCFA or the sale of all or substantially all of the assets of CCCFA, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material
14. Appointment of a successor or additional trustee or the change of name of a trustee, if material This event is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent or similar officer for CCCFA in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of CCCFA, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of CCCFA.
Attachment Staff Report Item 17L
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15. Incurrence of a Financial Obligation of CCCFA, if material, or agreement to covenants, events of default, remedies, priority rights, or other similar terms of a Financial Obligation of CCCFA, any of which affect security holders, if material
16. Default, event of acceleration, termination event, modification of terms, or other similar events under the terms of a Financial Obligation of CCCFA, any of which reflect financial difficulties
17. The receipt by CCCFA of a Monthly Ledger Report that includes a credit to any Non-Private Business Sales Ledger or any Private Business Sales Ledger that has not been reversed within twelve months of the date of such credit
18. The receipt by CCCFA of a Monthly Ledger Report that shows that a Ledger Event has occurred Attachment Staff Report Item 17L
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APPENDIX F
FORM OF OPINION OF BOND COUNSEL
__________, 2025
California Community Choice Financing Authority
San Rafael, California
California Community Choice Financing Authority
Clean Energy Project Revenue Bonds, Series 2025[_] (Term Rate) (Final Opinion)
Ladies and Gentlemen:
We have acted as bond counsel in connection with the issuance by the California Community Choice Financing Authority (the “Issuer”) of $_____________ aggregate principal amount of California Community Choice Financing Authority Clean Energy Project Revenue Bonds, Series 2025[_] (Term Rate) (the “Bonds”), issued pursuant to a Trust Indenture, dated as of __________ 1, 2025 (the “Indenture”), between the Issuer and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). The Indenture provides that the Bonds are issued for the purpose of financing the Cost of Acquisition of the Clean Energy Project. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
In such connection, we have reviewed the Indenture, the Master Power Supply Agreement, the Clean Energy Purchase Contract, the Commodity Swap, the Seller Swap (as defined in the Master Power Supply Agreement), the Tax Certificate and Agreement, dated the date hereof (the “Tax Certificate”), of the Issuer, opinions of counsel to the Issuer and the Trustee, certificates of the Issuer, the Trustee and others, and such other documents, opinions and matters to the extent we deemed necessary to render the opinions set forth herein.
The opinions expressed herein are based on an analysis of existing laws, regulations, rulings and court decisions and cover certain matters not directly addressed by such authorities. Such opinions may be affected by actions taken or omitted or events occurring after original delivery of the Bonds on the date hereof. We have not undertaken to determine, or to inform any person, whether any such actions are taken or omitted or events do occur or any other matters come to our attention after original delivery of the Bonds on the date hereof. Accordingly, this letter speaks only as of its date and is not intended to, and may not, be relied upon or otherwise used in connection with any such actions, events or matters. Our engagement with respect to the Bonds has concluded with their issuance, and we disclaim any obligation to update this letter. We have assumed the genuineness of all documents and signatures provided to us and the due and legal execution and delivery of each such document by each party thereto other than the Issuer and that each such document constitutes a valid and binding agreement of such party. We have assumed, without undertaking to verify, the accuracy of the factual matters represented, warranted or certified in the documents, and of the legal conclusions contained in the opinions, referred to in the second paragraph hereof. Furthermore, we have assumed compliance with all covenants and agreements contained in the Indenture, the Master Power Supply Agreement, the Clean Energy Purchase Contract, and the Tax Certificate, including (without limitation) covenants and agreements compliance with which is necessary to assure that future actions, omissions or events will not cause interest on the Bonds to be included in gross income for federal income tax purposes. We call attention to the fact that the rights and obligations under the Bonds, the Indenture, the Master Power Supply Agreement, the Clean Energy Purchase Contract, the Attachment Staff Report Item 17L
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Commodity Swap, the Seller Swap, and the Tax Certificate and their enforceability may be subject to bankruptcy, insolvency, receivership, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against governmental entities such as the Issuer in the State of California. We express no opinion with respect to any indemnification, contribution, liquidated damages, penalty (including any remedy deemed to constitute a penalty), right of set-off, arbitration, judicial reference, choice of law, choice of forum, choice of venue, non-exclusivity of remedies, waiver or severability provisions contained in the foregoing documents, nor do we express any opinion with respect to the state or quality of title to or interest in any of the property described in or as subject to the lien of the Indenture or the accuracy or sufficiency of the description contained therein of, or the remedies available to enforce liens on, any such property. Our services did not include financial or other non-legal advice. Finally, we undertake no responsibility for the accuracy, completeness or fairness of the Official Statement or other offering material relating to the Bonds and express no view with respect thereto.
Based on and subject to the foregoing, and in reliance thereon, as of the date hereof, we are of the following opinions:
1. The Bonds constitute the valid and binding limited obligations of the Issuer.
2. The Indenture has been duly executed and delivered by, and constitutes the valid and binding agreement of, the Issuer. The Indenture creates a valid pledge, to secure the payment of the principal of and interest on the Bonds, of the Trust Estate, subject to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth in the Indenture, including without limitation the pledge of the Commodity Reserve Account and the amounts and investments on deposit therein in favor of the Commodity Swap Counterparty and the Project Participant.
3. Interest on the Bonds is excluded from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 and is exempt from State of California personal income taxes. Interest on the Bonds is not a specific preference item for purposes of the federal individual alternative minimum tax. We observe that interest on the Bonds included in adjusted financial statement income of certain corporations is not excluded from the federal corporate alternative minimum tax. We express no opinion regarding other tax consequences related to the ownership or disposition of, or the amount, accrual or receipt of interest on, the Bonds.
Faithfully yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
Attachment Staff Report Item 17L
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APPENDIX G
BOOK-ENTRY SYSTEM
The Depository Trust Company (“DTC”), New York, New York, will act as securities depository for the Bonds. The Bonds will be issued as fully-registered securities registered in the name of Cede & Co. (DTC’s partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully-registered bond certificate will be issued for each maturity of the Bonds, each in the aggregate principal amount of such maturity, and will be deposited with DTC. If, however, the aggregate principal amount of any maturity of the Bonds exceeds $500 million, one certificate will be issued with respect to each $500 million of principal amount and an additional certificate will be issued with respect to any remaining principal amount of such maturity.
DTC, the world’s largest securities depository, is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity, corporate and municipal debt issues, and money market instruments (from over 100 countries) that DTC’s participants (“Direct Participants”) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). DTC has a Standard & Poor’s rating of AA+. The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com
Purchases of Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC’s records. The ownership interest of each actual purchaser of each Bond (“Beneficial Owner”) is in turn to be recorded on the Direct and Indirect Participants’ records.
Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership interests in Bonds, except in the event that use of the book-entry system for the Bonds is discontinued.
To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of Bonds with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership.
Attachment Staff Report Item 17L
G-2
DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC’s records reflect only the identity of the Direct Participants to whose accounts such Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of Bonds may wish to take certain steps to augment transmission to them of notices of significant events with respect to the Bonds, such as redemptions, tenders, defaults, and proposed amendments to the Bond documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of the notices be provided directly to them.
Redemption notices shall be sent to DTC. If less than all of the Bonds within a maturity of the Bonds are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each Direct Participant in such maturity to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to Bonds unless authorized by a Direct Participant in accordance with DTC’s MMI Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to CCCFA of securities as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts such Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Redemption proceeds and payments of principal and interest on the Bonds will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding detail information from CCCFA or the Trustee on the payable date in accordance with their respective holdings shown on DTC’s records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such Participant and not of DTC, CCCFA or the Trustee, subject to any statutory or regulatory requirements as may be in effect from time to time.
Payment of redemption proceeds and principal and interest to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of CCCFA or the Trustee, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to Beneficial Owners will be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as depository with respect to the Bonds at any time by giving reasonable notice to CCCFA or the Trustee. Under such circumstances, in the event that a successor depository is not obtained, Bond certificates are required to be printed and delivered.
CCCFA may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository). In that event, Bond certificates are required to be printed and delivered to DTC.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that CCCFA believes to be reliable, but CCCFA takes no responsibility for the accuracy thereof.
Attachment Staff Report Item 17L
H-1
APPENDIX H
REDEMPTION PRICE OF THE BONDS
The following table sets forth the Redemption Price of the Bonds (being the Amortized Value of the Bonds, but excluding accrued interest which is payable from the amounts required to be on deposit in the Debt Service Account) upon an extraordinary mandatory redemption following an Early Termination Payment Date under the Master Power Supply Agreement, as of the redemption dates shown below during the Initial Interest Rate Period.
REDEMPTION DATE REDEMPTION PRICE
1 REDEMPTION DATE REDEMPTION PRICE
1 ____________________
1 Amortized Value of the Bonds as of each Redemption Date.
Attachment Staff Report Item 17L
H-2
REDEMPTION DATE REDEMPTION PRICE
1 REDEMPTION DATE REDEMPTION PRICE
1 ____________________
1 Amortized Value of the Bonds as of each Redemption Date.
Attachment Staff Report Item 17L
I-1
APPENDIX I
SCHEDULE OF TERMINATION PAYMENTS
The following table sets forth the Schedule of Termination Payments under the Master Power Supply Agreement as of the specified Early Termination Payment Dates during the Initial Interest Rate Period. The Early Termination Payment Date is the Business Day preceding the date listed below.
DATE* TERMINATION PAYMENT DATE* TERMINATION PAYMENT
*
If any Early Termination Payment Date is not a Business Day, the Termination Payment is due on the preceding Business Day.
Attachment Staff Report Item 17L
I-2
DATE* TERMINATION PAYMENT DATE* TERMINATION PAYMENT
*
If any Early Termination Payment Date is not a Business Day, the Termination Payment is due on the preceding Business Day.
Attachment Staff Report Item 17L
J-1
APPENDIX J
SECOND PARTY OPINION REGARDING GREEN BONDS DESIGNATION
Attachment Staff Report Item 17L
K-1
[APPENDIX K]
[__]
Attachment Staff Report Item 17L
MEMORANDUM OF UNDERSTANDING (“MOU”)
Date: [___________], 2025
To: Garth Salisbury
Treasurer/Controller
California Community Choice Financing Authority
[email protected]
(707) 535-9779
From: Ava Community Energy
Re: California Community Choice Financing Authority Energy Prepayment Financing on behalf of Ava Community Energy
Overview
The California Community Choice Financing Authority (“CCCFA” or the “Issuer”) seeks to procure a 30-year supply of energy, through the issuance of Clean Energy Project Revenue Bonds (the "Bonds") to be issued by CCCFA. CCCFA will sell all the Prepaid Energy acquired from this transaction to Ava Community Energy (“Ava”), the “Project Participant.” Rating Agency Fee and Green Bond Second Party Opinion Fee The rating agency fee and expenses (“Rating Agency Fee”) is paid from the proceeds of the Bonds. However, unlike most of the other fees associated with the issuance of the Bonds, payment of the Rating Agency Fee is not contingent upon the issuance of the Bonds.
In the event the Bonds are not issued, and there remains a Rating Agency Fee payable to Moody’s Investors Service or S&P Global Ratings (the “Rating Agency”), the Project Participant agrees that it will be liable for such Rating Agency Fee and make direct payment to the Rating Agency therefor.
In the event a Green Bond Second Party Opinion (“SPO”) is obtained, and the Bonds are not issued, the fee payable to the SPO provider (the “SPO Fee”) shall be incurred by the Project Participant and in such event, to the extent the SPO Fee was already paid by CCCFA, the Project Participant agrees to reimburse CCCFA.
Attachment Staff Report Item 17M
Memorandum of Understanding
[___________], 2025
Sincerely,
AVA COMMUNITY ENERGY
__________________________
Russell Mills
Senior Vice President and Chief Financial Officer
Date: [___________], 2025
ACCEPTED AND AGREED
CALIFORNIA COMMUNITY CHOICE FINANCING AUTHORITY
By: __________________________
Name: Garth Salisbury, Treasurer/Controller
Date: [___________], 2025
Attachment Staff Report Item 17M
MEMORANDUM OF UNDERSTANDING (“MOU”)
Date: May [__], 2025
To: Russell Mills
Senior Vice President and Chief Financial Officer
Ava Community Energy
[email protected]
(916) 337-9704
Garth Salisbury
Treasurer – Controller
California Community Choice Financing Authority
[email protected]
(707) 535-9779
From: Morgan Stanley & Co. LLC (“Morgan Stanley”)
Re: California Community Choice Financing Authority Energy Prepayment Financing on behalf of Ava Community Energy
Overview
The California Community Choice Financing Authority (“CCCFA” or the “Issuer”) seeks to procure a 30-year supply of energy, through the issuance of Clean Energy Project Revenue Bonds (the "Bonds") to be issued by CCCFA. The CCCFA will sell all the Prepaid Energy acquired from this transaction to Ava Community Energy (“Ava”), the “Project Participant.” Rating Agency Fee and SPO Fee
The rating agency fee and expenses (“Rating Agency Fee”) is paid from the proceeds of the Bonds. However, unlike most of the other fees associated with the issuance of the Bonds, payment of the Rating Agency Fee is not contingent upon the issuance of the Bonds.
In the event the Bonds are not issued due to market conditions, and there remains a Rating Agency Fee payable to Moody’s Investors Service or S&P Global Ratings (the “Rating Agency”), Morgan Stanley and CCCFA agree to split this Rating Agency Fee on an equal basis. If the Bonds are not issued due to the CCCFA or the Project Participant’s unwillingness or inability to proceed, other than due to an inability to achieve a minimum established target discount, the Rating Agency Fee will be their sole responsibility. To the extent CCCFA incurs any Rating Agency Fee if the bonds are not issued, the Project Participant agrees that it will be liable for such Rating Agency Fee and make direct payment to the Rating Agency therefor.
The Project Participant has or plans to engage Kestrel to provide a green bond second party opinion (the “SPO”). In the event the SPO is obtained and the Bonds are not issued (unless the Bonds are not issued due to the CCCFA or the Project Participant’s unwillingness or inability to proceed, other than due to an inability to achieve a minimum established target discount), the fee payable to Kestrel (the “SPO Fee”) shall be the responsibility of Morgan Stanley, and in such Attachment Staff Report Item 17N
Memorandum of Understanding
May [__], 2025
event, to the extent the SPO Fee was already paid by the Project Participant or by CCCFA, Morgan Stanley agrees to reimburse the Project Participant or CCCFA, as appropriate. To the extent CCCFA incurs any SPO Fee if the bonds are not issued as a result of the Project Participant’s unwillingness or inability to proceed, other than due to an inability to achieve a minimum established target discount, the Project Participant agrees that it will be liable for such SPO Fee and make direct payment to Kestrel therefor, or to CCCFA if the SPO Fee was already paid by CCCFA.
Morgan Stanley shall have no responsibility for any fees or expenses incurred by CCCFA or the Project Participant, or their agents, employees, advisors or counsel, in connection with the issuance of the Bonds and the purchase of the Prepaid Energy, other than the Rating Agency Fee and SPO Fee as described in this MOU and as further described in the Bond Purchase Agreement (as defined herein).
Miscellaneous
CCCFA and Project Participant each acknowledge and agree that: (i) the transaction contemplated by this MOU is, in each case, an arm’s length, commercial transaction between the CCCFA and Morgan Stanley (in its role as “Underwriter” and/or the “Energy Supplier”, as applicable) in which the Underwriter and the Energy Supplier are each acting solely as a principal and not acting as a municipal advisor, financial advisor or fiduciary to CCCFA or the Project Participant; and (ii) CCCFA and the Project Participant will consult their own legal, accounting, tax, financial and other advisors, as applicable, to the extent each has deemed appropriate.
CCCFA acknowledges and agrees that Morgan Stanley is not making a commitment to extend credit, make a loan or otherwise fund the Bonds beyond the obligations contained in a mutually satisfactory bond purchase agreement (the “Bond Purchase Agreement”). CCCFA acknowledges that the services provided under this MOU involve professional judgment on Morgan Stanley’s part and that the results cannot be, and are not, guaranteed.
Nothing contained herein shall preclude the Underwriter from carrying on its customary and usual business activities. The Underwriter specifically reserves the right, but is not obligated, to bid for and maintain secondary markets on any of CCCFA’s outstanding bonds subject to appropriate information barriers. Services provided by the Underwriter in connection with this MOU shall not limit the Underwriter from providing services for CCCFA or the Project Participant in conjunction with other services requested by CCCFA or the Project Participant except as limited by rule of law or regulation.
In connection with the services agreed to herein, it is understood that the Underwriter will render professional services as an independent contractor. Neither the Underwriter nor any of its agents or employees shall be deemed an employee of CCCFA or the Project Participant for any purpose.
Except as described in this paragraph, this MOU is intended to be, and shall be construed only as, a non-binding MOU, intent on summarizing and evidencing discussions between CCCFA, the Project Participant, and Morgan Stanley, as of the date hereof. Except as described below, any legally binding obligation of the parties with respect to the transaction described herein shall exist only upon the execution and delivery of definitive agreements related thereto, into which this MOU Attachment Staff Report Item 17N
Memorandum of Understanding
May [__], 2025
and all prior discussions shall merge. It is expressly understood that this MOU is not a contract to execute any definitive agreements or to otherwise consummate the transactions described herein. The parties will cooperate in negotiating definitive agreements providing for the transactions contemplated by this MOU, but each party reserves the right of final approval or disapproval, for any reason, of the documentation relating to such agreements. Notwithstanding the foregoing, the provisions above under the headings “Rating Agency Fee and SPO Fee” shall be binding upon the parties.
Sincerely,
_________________________
Grant Fraunfelder, Executive Director
MORGAN STANLEY & CO. LLC
ACCEPTED AND AGREED:
AVA COMMUNITY ENERGY
By: ____________________________
Name: Russell Mills
Title: Senior Vice President and Chief Financial Officer Date: May [__], 2025
CALIFORNIA COMMUNITY CHOICE FINANCING AUTHORITY
By: ____________________________
Name: Garth Salisbury
Title: Treasurer – Controller
Date: May [__], 2025
Attachment Staff Report Item 17N
SM Draft 5 May 2025
RE-PRICING AGREEMENT
This RE-PRICING AGREEMENT, dated as of [____], 2025 (this “Agreement”), is entered into by and between Energy Prepay [__], LLC, a Delaware limited liability company (“Prepay LLC”) and California Community Choice Financing Authority (“Issuer”). Prepay LLC and Issuer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used herein shall have the meanings set forth in Section 1.
WHEREAS, Issuer is issuing the [Clean Energy Project Revenue Bonds, 2025 Series [X]] pursuant to the Indenture in order to provide funds to acquire the Energy Supply from Prepay LLC pursuant to the Prepaid Agreement; and
WHEREAS, in connection with its acquisition of the Energy Supply, Issuer has entered into the Power Supply Contract with the Project Participant providing for the sale of the Energy Supply by Issuer to the Project Participant; and
WHEREAS, the price payable by the Project Participant for the Energy Supply includes a discount to the price set forth in the Power Supply Contract, which discount has been established for the Initial Reset Period therein and will be re-established for each subsequent Reset Period under the terms and conditions set forth herein; and
WHEREAS, under the terms of the Power Supply Contract, prior to each Reset Period after the Initial Reset Period, the Project Participant may elect to have its Energy Supply remarketed if the Available Discount established for such Reset Period is less than the Minimum Discount specified in the Power Supply Contract;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Section 1. Definitions. When used herein, the following capitalized terms shall have the following meanings:
“Additional Reduction Amount” has the meaning set forth in Appendix A. “Available Discount” has the meaning specified in the Power Supply Contract and also means, for each Reset Period, the final amount determined by Prepay LLC as of the applicable Bond Pricing Date pursuant to Appendix A, expressed in cents per MWh (rounded down to the nearest one-half cent).
“Bond Closing Date” means the date on which the Bonds are issued pursuant to the Indenture.
“Bond Pricing Date” means, for any Reset Period, the date upon which the interest rate and yield on the Bonds is established pursuant to the applicable bond remarketing agreement or bond purchase agreement.
Attachment Staff Report Item 17O
2 “Bonds” has the meaning set forth in the Indenture.
“Business Day” has the meaning set forth in the Indenture. “Contract Quantity” has the meaning set forth in the Prepaid Agreement. “Delivery Period” has the meaning set forth in the Prepaid Agreement. “Delivery Period Implied Rate” has the meaning set forth in Appendix A. “Determination Month” has the meaning set forth in Appendix A. “Energy” has the meaning set forth in the Prepaid Agreement. “Energy Supply” means with respect to the Prepaid Agreement, the aggregate Contract Quantities of Energy to be delivered by Prepay LLC under the Prepaid Agreement. “Estimated Available Discount” has the meaning set forth in Section 5(a). “Excess Amount” is the positive difference, if any, of the Prior Remaining Energy Value less the New Remaining Delivery Cost.
“Fixed Price” means $[____]/MWh.
“Fixed Rate” has the meaning set forth in Appendix A.
“Funding Agreement” has the meaning set forth in the Prepaid Agreement. “Funding Bidder” has the meaning set forth in the LLC Agreement. “Funding Recipient” has the meaning set forth in the Prepaid Agreement. “Indenture” means the Trust Indenture, dated as of the first day of the month of the Bond Closing Date, between Issuer and the Trustee, as the same may be amended or supplemented from time to time pursuant to one or more Supplemental Indentures, or any other trust indenture under which refunding bonds are issued and secured.
“Initial Reset Period” means the period from [____], 2025 until [____], 20[__]. “Interest Rate Period” has the meaning set forth in the Indenture, provided that if the Bonds are Outstanding in two or more Series with separate, concurrent and co-terminus Interest Rate Periods, “Interest Rate Period” shall mean all such Interest Rate Periods collectively. “LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Prepay LLC, dated as of [____], 2025.
“Mandatory Purchase Date” has the meaning set forth in the Indenture. “Minimum Discount” has the meaning set forth in the Power Supply Contract.
Attachment Staff Report Item 17O
3 “Monthly Contract Quantity” means, for any month, the aggregate Contract Quantities scheduled to be delivered by Prepay LLC to Issuer under the Prepaid Agreement for such month. “Monthly Discount” has the meaning set forth in Section 6(b). “MWh” has the meaning set forth in the Prepaid Agreement. “Prepay LLC” has the meaning set forth in the preamble. “New Remaining Delivery Cost” has the meaning set forth in Appendix A. “New Reset Period” has the meaning set forth in Appendix A. “Old Reset Period” has the meaning set forth in Appendix A. “Outstanding” has the meaning set forth in the Indenture. “Participant Notification Deadline Day” means, with respect to each Reset Period, the last day on which Issuer is permitted to provide a notice of the Estimated Available Discount to the Project Participant under the Power Supply Contract.
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, or government agency.
“Power Supply Contract” has the meaning set forth in the Indenture. “Prepaid Agreement” means the Prepaid Energy Sales Agreement, dated as of [____], 2025, between Prepay LLC and Issuer, as the same may be amended or supplemented in accordance with its terms.
“Prior Remaining Energy Value” has the meaning set forth in Appendix A. “Project Participant” has the meaning set forth in the Indenture. “Re-pricing Date” means, for any Reset Period, any Business Day not earlier than ninety (90) days prior to the earlier of (i) the date on which the Bonds then Outstanding may be called for optional redemption in accordance with the Indenture and (ii) the day following the last day of the Reset Period then in effect.
“Re-pricing Firm Offer” means, for any Reset Period after the Initial Reset Period, a binding offer from a Funding Bidder on the Bond Pricing Date for such Reset Period to provide a Funding Agreement that reflects (i) a Reset Period Implied Rate that is sufficient to achieve the Minimum Discount for such Reset Period, and (ii) a Reset Period length that complies with the requirements of Section 3.
“Re-pricing Indicative Offer” means, for any Reset Period after the Initial Reset Period, indicative pricing from a Funding Bidder that would constitute a Re-pricing Firm Offer if made on the proposed Bond Pricing Date for such Reset Period.
Attachment Staff Report Item 17O
4 “Remaining Delivery Cost” has the meaning set forth in Appendix A. “Remaining Energy Value” has the meaning set forth in Appendix A. “Reset Period” means the Initial Reset Period and each period determined pursuant to Section 3.
“Reset Period Implied Rate” has the meaning set forth in Appendix A. “Series” means Bonds designated as a Series and authorized to be issued by Issuer pursuant to Section 2.01 of the Indenture.
“SOFR” means the Secured Overnight Financing Rate administered by the Federal Reserve Bank of New York (or a successor administrator) and provided on the New York Fed’s Website. “Supplemental Indenture” means any indenture supplemental to or amendatory of the Indenture executed and delivered by Issuer and the Trustee in accordance with Article X of the Indenture.
“Termination Payment Adjustment Schedule” has the meaning set forth in the Prepaid Agreement.
“Trustee” means the trustee under the Indenture and its successors and assigns.
Section 2. Purpose of Agreement and Intention of Parties. The Parties are entering into this Agreement in connection with the execution and delivery of the Indenture, the Prepaid Agreement and the other transaction documents for the purpose of establishing the methodology for determining the Available Discount for each Reset Period following the Initial Reset Period.
Section 3. Reset Periods. Each Reset Period shall commence on the next day that follows the last day of the Initial Reset Period or, subsequently, the immediately prior Reset Period.
The length of each Reset Period shall be the remaining term of the Delivery Period unless Prepay LLC elects, in its sole discretion following consultation with Issuer, a shorter period, which period may not be shorter than the lesser of (a) three (3) years or (b) the remaining term of the Delivery Period without Issuer’s consent; provided further that:
(i) The Initial Reset Period and each subsequent Reset Period (other than the final Reset Period) shall end the last day of the month preceding the end of the applicable Interest Rate Period. For example, if the Interest Rate Period ends October 31, the last day of the Reset Period would end September 30, and (ii) the final Reset Period shall end on the last day of the Delivery Period.
Section 4. Reserved.
Section 5. Estimated Available Discount.
Attachment Staff Report Item 17O
5 (a) On any Business Day not earlier than the 70th day prior to the earliest potential Re-pricing Date for any Reset Period and not later than ten (10) Business Days prior to the latest potential Re-pricing Date for any Reset Period, Prepay LLC (either on its own initiative or at Issuer’s request) shall provide to Issuer an estimate of the length of such Reset Period, the Reset Period Implied Rate and the Available Discount (the “Estimated Available Discount”) that are anticipated to apply to such Reset Period. In determining the Estimated Available Discount, Prepay LLC shall utilize the methodology set forth in Appendix A. After Prepay LLC provides an initial estimate for a Reset Period, Prepay LLC may provide updated estimates on its own initiative or upon a subsequent request from Issuer.
(b) Issuer shall notify the Project Participant of the Estimated Available Discount and any updates thereto under the relevant provisions of the Power Supply Contract. Unless Prepay LLC and Issuer otherwise agree, in any notice of Estimated Available Discount provided to a Project Participant prior to the Participant Notification Deadline Day, Issuer shall clearly indicate in such notice that the notice is provisional and is not intended to, and does not, trigger a Project Participant’s right to provide a Remarketing Election Notice (as defined in the Power Supply Contract).
(c) If, at any time during the re-pricing period for a Reset Period, a Funding Bidder provides a Re-pricing Firm Offer for such Reset Period that Prepay LLC accepts in accordance with the LLC Agreement, Issuer agrees that it will execute a bond purchase or remarketing agreement reflecting a Funding Agreement for such Reset Period between Prepay LLC and the Funding Bidder selected by Prepay LLC for such Reset Period. (d) Issuer agrees to cooperate in good faith with Prepay LLC and to take all steps reasonably within Issuer’s control that are necessary, in each case, to cause a Bond Pricing Date to occur for any Re-pricing Indicative Offer that Prepay LLC elects to pursue, which steps shall include retaining an underwriter or remarketing agent for the Bonds to be priced and participating in the Bond marketing or remarketing process.
(e) Issuer shall notify the Project Participant of the Estimated Available Discount and any updates thereto under the relevant provisions of the Power Supply Contract. Unless Prepay LLC and Issuer otherwise agree, in any notice of Estimated Available Discount provided to a Project Participant prior to the Participant Notification Deadline Day, Issuer shall clearly indicate in such notice that the notice is provisional and is not intended to, and does not, trigger a Project Participant’s right to provide a Remarketing Notice (as defined in the Power Supply Contract).
Section 6. Determination of Available Discount and Monthly Discount. (a) Prepay LLC shall determine on the Bond Pricing Date the Available Discount for such Reset Period (expressed in cents per MWh and rounded down to the nearest one-half cent) in accordance with the methodology set forth in Appendix A. (b) For each Reset Period after the Initial Reset Period, Prepay LLC shall determine the monthly discount portion of the Available Discount for such Reset Period (the “Monthly Discount”). Issuer and Prepay LLC then shall mutually agree upon the projected Annual Refund (as defined in the Power Supply Contract) for such Reset Period, which shall be determined Attachment Staff Report Item 17O
6 consistent with Section 3.2(b) of the Power Supply Contract and shall be the remaining portion of the Available Discount. Prepay LLC and Issuer acknowledge that the purpose of retaining a portion of the Available Discount for distribution in the Annual Refund is to mitigate the risk to bondholders of reduced or lost investment income on any investments held under the Indenture.
Section 7. Termination Payment Adjustment Schedule; Monthly Quantity Changes. (a) For any Reset Period, Prepay LLC may modify the Termination Payment Adjustment Schedule to reflect changes in the Remaining Energy Values set forth on Attachment 1 to Appendix A and otherwise, provided that such modifications are sufficient to meet the redemption requirements of the Bonds to be sold for such Reset Period. (b) Issuer and Prepay LLC agree that the Prepaid Agreement will be amended to reflect any reductions to Monthly Contract Quantities determined pursuant to Appendix A.
Section 8. Timing. The dates and time intervals stated in this Agreement may be waived or altered by the mutual agreement of the Parties.
Section 9. Termination. This Agreement shall terminate automatically upon the occurrence of an Early Termination Payment under and as defined in the Prepaid Agreement. For the avoidance of doubt, any such termination shall not be considered a failure by Prepay LLC to act in good faith hereunder, regardless of whether the Parties have previously discussed pricing that may apply to any Reset Period or otherwise taken the steps required under this Agreement.
Section 10. Communications.
(a) All notices, requests and other communications shall be in writing (including facsimile, electronic mail or other electronic means) provided to the address and/or electronic mail address set forth below:
Prepay LLC: As provided in the Prepaid Agreement
Issuer: As provided in the Prepaid Agreement
(b) Each Party may change the address for communications to it pursuant to the terms of the referenced agreement, which notice shall be effective when delivered at the address specified herein.
Section 11. Miscellaneous.
(a) Miscellaneous. Article X (Dispute Resolution) and Sections 18.3 (Entirety; Amendments), 18.4 (Governing Law), 18.5 (Non-Waiver), 18.6 (Severability), 18.7 (Exhibits),
18.9 (Relationship of Parties), 18.12 (Limitation of Liability) and 18.13 (Counterparts) of the Prepaid Agreement are incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein.
Attachment Staff Report Item 17O
7 (b) Amendments to Power Supply Contract and Indenture. Issuer shall not agree to or consent to any modification, supplement, amendment or waiver of any provision of the Power Supply Contract or the Indenture that affects the meaning of any defined term herein or the operation of any provision hereof.
(c) Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either Party hereto without the prior written consent of the other Party; provided that each Party acknowledges and agrees that the other Party shall assign all of its right, title and interest in, to and under this Agreement in connection with any assignment by either Party of its right, title and interest in, to and under the Prepaid Agreement to the assignee thereof, which assignment shall constitute a novation.
[Separate Signature Page(s) Attached]
Attachment Staff Report Item 17O
[Signature Page to Re-Pricing Agreement]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date first above written.
ENERGY PREPAY [__], LLC
By: Morgan Stanley Capital Group Inc., its
Manager
By:____________________________
Name:_________________________
Title:__________________________
CALIFORNIA COMMUNITY CHOICE
FINANCING AUTHORITY
By:____________________________
Name:_________________________
Title:__________________________
Attachment Staff Report Item 17O
Appendix A – Page 1
Appendix A
Prepay LLC will undertake the following steps in determining the Available Discount for any Reset Period (each, a “New Reset Period”):
• Step 1: Determine the “Prior Remaining Energy Value”
o Prepay LLC will determine the Remaining Energy Value for the last month of the current Reset Period (the “Old Reset Period”) based on Attachment 1 hereto, as such Attachment initially existed or was last updated at the beginning of the prior Reset Period (the “Prior Remaining Energy Value”). o “Remaining Energy Value” means, for any month, the amount set forth on Attachment 1 of Appendix A as the “Remaining Energy Value” for such month, as Attachment 1 may be updated pursuant to this Appendix A in connection with the establishment of any new Reset Period. • Step 2: Prepay LLC will specify the length of the New Reset Period pursuant to Section 3 of this Agreement
• Step 3: Prepay LLC will specify a Reset Period Implied Rate for the New Reset Period and a Delivery Period Implied Rate
o “Reset Period Implied Rate” means, for any Reset Period other than the Initial Reset Period, a fixed rate offered by the Funding Recipient for such Reset Period as of the Bond Pricing Date for such Reset Period, which rate the Parties acknowledge (i) will be determined by the Funding Recipient in its sole and absolute discretion based on the rate of the Funding Recipient, and (ii) for which the Funding Recipient may consider all relevant factors, including (w) the nature of the source of funding provided by the Funding Agreement, including any applicable regulatory or capital charges, (x) the tenor, (y) market interest for such funding at the time, and (z) any other unique attributes of the Funding Agreement funding relative to other sources available to the Funding Recipient. The Parties acknowledge that, for purposes of providing an Estimated Available Discount, Prepay LLC may rely on indicative pricing proposals from a Funding Bidder.
o “Delivery Period Implied Rate” means, for any portion of the Delivery Period that is not covered by a Reset Period, a fixed rate determined by Prepay LLC in its sole and absolute discretion as of the Bond Pricing Date for such Reset Period which Prepay LLC determines (in its sole discretion) that the Funding Recipient would be able to acquire, as of the date of determination, funding from other sources comparable to the funding provided by the Funding Agreement as of the date of determination if such Funding Agreement were extended for the entire Delivery Period. In determining such a rate, Prepay LLC may consider all relevant factors, including (w) the nature of the source of funding provided by the Funding Agreement, including any applicable regulatory or capital charges, (x) the length of the Delivery Period, (y) market interest for such funding at the time, and (z) any other unique attributes of the Attachment Staff Report Item 17O
Appendix A – Page 2
Funding Agreement funding relative to other sources available to the Funding Recipient.
• Step 4: Determine the “New Remaining Delivery Cost”
o Prepay LLC will determine the “Remaining Delivery Cost” for each month of the Delivery Period after the Old Reset Period. The Remaining Delivery Cost for the first month of the New Reset Period is the “New Remaining Delivery Cost”.
o “Remaining Delivery Cost” means, for the first month of any New Reset Period (the “Determination Month”), an amount calculated by Prepay LLC equal to the net present value of a stream of monthly payments equal to the Monthly Contract Quantities multiplied by the Fixed Price for the remainder of the Delivery Period (including such Determination Month), discounted at the Reset Period Implied Rate for the New Reset Period and the Delivery Period Implied Rate for the remainder of the Delivery Period after the New Reset Period.
• Step 5: Additional Reduction Amount or changing Monthly Contract Quantities o If the Prior Remaining Energy Value is less than the New Remaining Delivery Cost:
▪ If the Reset Period will go to the end of the Delivery Period, Prepay LLC will reduce the Monthly Contract Quantities to zero in as many months as necessary at the end of the Delivery Period (and, to the extent necessary, reduce the Monthly Contract Quantities in the last remaining month of the Reset Period to a quantity greater than zero) such that the Prior Remaining Energy Value is equal to the New Remaining Delivery Cost.
▪ If the Reset Period will end prior to the end of the Delivery Period, Prepay LLC in its sole discretion may reduce the Monthly Contract Quantities as provided above.
o If the Prior Remaining Energy Value is greater than the New Remaining Delivery Cost:
▪ Subject to the following bullet, Prepay LLC will pay to Issuer the amount, if any, by which (A) the Prior Remaining Energy Value exceeds (B) the New Remaining Delivery Cost (the “Additional Reduction Amount”) on the first day of the contemplated Interest Rate Period, which payment shall be applied by Issuer to the retirement of Bonds.
▪ Notwithstanding the immediately prior bullet, Prepay LLC may elect to retain a portion of the Excess Amount if (i) the Reset Period will end prior to the end of the Delivery Period, (ii) such retention does not reduce the Available Discount, and (iii) doing so is consistent with the amortization requirement of the Bonds. If Prepay LLC elects to retain a portion of such Excess Amount pursuant to the foregoing proviso, the Attachment Staff Report Item 17O
Appendix A – Page 3
Additional Reduction Amount shall be the portion of such Excess Amount that Prepay LLC elects to pay.
o Any Additional Reduction Amount or changes in Monthly Contract Quantities will then be included in calculating the New Remaining Delivery Cost. An Additional Reduction Amount will reduce the Prior Remaining Energy Value for this purpose.
o Once the New Reset Period goes into effect, Attachment 1 hereto will be amended such that the Remaining Energy Value for each month in the New Reset Period and the remainder of the Delivery Period is equal to the Remaining Delivery Cost for such month as determined under Step 4 and updated under this Step 5.
• Step 6: Determine the Fixed Rate for the Bonds for the term of such contemplated Interest Rate Period
o The remarketing agent or underwriter of the Bonds for such contemplated Interest Rate Period will specify the Fixed Rate.
o “Fixed Rate” means, for any New Reset Period, the fixed rate or rates of interest payable by Issuer with respect to a Series of Bonds or, in the case of a Series of Variable Rate Bonds (as defined in the Indenture), the fixed rate payable by Issuer under the related fixed rate swap transaction, which Fixed Rates will be determined on the Bond Pricing Date at a rate sufficient to enable all the Bonds to be sold or remarketed on such Bond Pricing Date in accordance with the Indenture (which sale price may include a premium or discount to par), as determined based on market information then available. • Step 7: Determine Monthly Discount Portion of Available Discount o Prepay LLC will determine the Monthly Discount portion of the Available Discount for the Reset Period based on the expected differences between monthly revenues and monthly debt service and other obligations of the Clean Energy Project (as defined in the Indenture).
• Step 8: Determine Annual Refund Portion of Available Discount o Prepay LLC and Issuer shall mutually agree upon the projected Annual Refund (as defined in the Power Supply Contract) for the Reset Period, which shall be determined consistent with Section 3.2 of the Power Supply Contract and shall be the remaining portion of the Available Discount applicable to such Project Participant.
Attachment Staff Report Item 17O
Attachment 1 to Appendix A
Attachment 1 to Appendix A
REMAINING ENERGY VALUES
[To be incorporated.]
Attachment Staff Report Item 17O
SM Draft 5 May 2025
LIMITED ASSIGNMENT AGREEMENT
This Limited Assignment Agreement (this “Agreement”) is entered into as of August 9, 2023 by and among Morgan Stanley Capital Group Inc., a Delaware corporation (“PPA Seller”), Ava Community Energy (formerly known as East Bay Community Energy Authority), a California joint powers authority (“PPA Buyer”), California Community Choice Financing Authority, a joint powers authority and a public entity of the State of California established pursuant to the provisions of the Joint Exercise of Powers Act (Article 1, Chapter 5, Division 7, Title 1, Section 6500 et seq. of the California Government Code, as amended) (“Issuer”), and Energy Prepay [__], LLC, a Delaware limited liability company (“Prepay LLC”).
RECITALS
WHEREAS, PPA Buyer and PPA Seller are parties to that certain Master Power Purchase and Sale Agreement dated February 12, 2018 and the [Confirmation] thereunder dated as of [____] (the “PPA”);
WHEREAS, in connection with a prepaid electricity transaction between Issuer and Prepay LLC, and with effect from and including the Assignment Period Start Date (as defined below), PPA Buyer wishes to transfer by limited assignment to Prepay LLC, and Prepay LLC wishes to accept the transfer by limited assignment of, the Assigned Rights and Obligations (as defined below) for the duration of the Assignment Period (as defined below); and WHEREAS, pursuant to this Agreement, Prepay LLC will receive the Assigned Product and Prepay LLC will deliver the Assigned Product to Prepay LLC, which will redeliver the Assigned Product to Issuer for ultimate redelivery to PPA Buyer; and WHEREAS, pursuant to this Agreement, Prepay LLC will assume responsibility for the Delivered Product Payment Obligation.
THEREFORE, in consideration of the premises above and the mutual covenants and agreements herein set forth, Issuer, PPA Seller, PPA Buyer and Prepay LLC (the “Parties” hereto; each is a “Party”) agree as follows:
AGREEMENT
1. Definitions.
The following terms, when used in this Agreement and identified by the capitalization of the first letter thereof, have the respective meanings set forth below, unless the context otherwise requires:
“Agreement” has the meaning specified in the first paragraph above. “Assigned Delivery Point” has the meaning specified in Appendix 1. “Assigned Products” means all Products under and as defined in the PPA.
Attachment Staff Report Item 17P
2 “Assigned Product Price” means the Energy Price (as defined in the PPA and specified in Appendix 1).
“Assigned Rights and Obligations” means (i) the rights of PPA Buyer under the PPA to receive the Assigned Products in each Month during the Assignment Period, as such rights may be limited or further described in Appendix 1, and (ii) the Delivered Product Payment Obligation, which right and obligation are transferred and conveyed to Prepay LLC hereunder. “Assignment Early Termination Date” has the meaning specified in Section 5(b). “Assignment Period” has the meaning specified in Section 5(a). “Assignment Period End Date” means 11:59:59 p.m. pacific prevailing time on [____]. “Assignment Period Start Date” means means 00:00 pacific prevailing time on [____]. “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a notice, or payment, or performing a specified action. “CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by the Federal Energy Regulatory Commission. “Claims” means all claims or actions, threatened or filed, and the resulting losses, damages, expenses, attorneys’ fees, experts’ fees, and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement, in each case arising under, in respect of or related in any way to the PPA or any transaction thereunder, except for the Delivered Product Payment Obligation. “Delivered Product Payment Obligation” has the meaning specified in Section 3(a). “Electricity” means three-phase, 60-cycle alternating current electric energy, expressed in megawatt hours (MWh).
“Government Agency” means the United States of America, any state thereof, any municipality, or any local jurisdiction, or any political subdivision of any of the foregoing, including, but not limited to, courts, administrative bodies, departments, commissions, boards, bureaus, agencies, or instrumentalities.
“Issuer” has the meaning specified in the first paragraph of this Agreement. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff.
Attachment Staff Report Item 17P
3 “Month” means a calendar month.
“Prepay LLC” has the meaning specified in the first paragraph of this Agreement. “Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, or Government Agency.
“PPA Buyer” has the meaning specified in the first paragraph of this Agreement. “PPA Seller” has the meaning specified in the first paragraph of this Agreement. “Prepaid Agreement” means that certain Prepaid Energy Sales Agreement dated as of the date hereof by and between Prepay LLC and Issuer.
“Prepay Power Supply Contract” means that certain Prepay Power Supply Contract dated as of the date hereof by and between PPA Buyer and Issuer. “Receivables” has the meaning given to such term in Section 3(e). “Retained Rights and Obligations” has the meaning specified in Section 3. “Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
2. Transfer and Undertakings.
(a) PPA Buyer hereby assigns, transfers and conveys to Prepay LLC all right, title and interest in and to the rights of PPA Buyer under the PPA to receive delivery of the Assigned Product during the Assignment Period. In connection with this assignment, PPA Buyer hereby delegates to Prepay LLC the Assigned Rights and Obligations during the Assignment Period. (b) PPA Seller hereby consents and agrees to PPA Buyer’s assignment, transfer and conveyance of all right, title and interest in and to the Assigned Product and Assigned Rights and Obligations to Prepay LLC and the exercise and performance by Prepay LLC of the Assigned Rights and Obligations during the Assignment Period.
(c) Prepay LLC hereby accepts such assignment, transfer and conveyance of the Assigned Rights and Obligations during the Assignment Period and agrees to perform any such Assigned Rights and Obligations due from it during the Assignment Period to the extent expressly set forth in this Agreement.
3. Limited Assignment.
The Parties acknowledge and agree that (i) the Assigned Rights and Obligations include only a portion of PPA Buyer’s rights and obligations under the PPA, and that all rights and obligations Attachment Staff Report Item 17P
4 arising under the PPA that are not expressly included in the Assigned Rights and Obligations shall be “Retained Rights and Obligations”, and (ii) the Retained Rights and Obligations include all rights and obligations of PPA Buyer arising during the Assignment Period except the rights and obligations expressly included in the Assigned Rights and Obligations. In this regard:
(a) Limited to Delivered Product Payment Obligation; Invoicing. Prepay LLC’s sole payment obligation hereunder will be to pay the Floating Price Payments into the Custodial Account as such terms are defined in and described on Appendix 1 (the “Delivered Product Payment Obligation”). Prepay LLC and PPA Buyer each agree to instruct the Custodian to pay PPA Seller for the Assigned Products delivered during each Month of the Assignment Period on each applicable payment date under the PPA. PPA Buyer shall remain responsible for any payment obligations under the PPA during the Assignment Period, including in the event that either (i) Prepay LLC does not make the payments into the Custodial Account as described above or (ii) the Custodian does not make the payments to the PPA Seller from the Custodial Account as described above.
(b) Retained Rights and Obligations. Any Claims (other than the Delivered Product Payment Obligation or a failure to perform the same) arising or existing in connection with or related to the PPA, whether related to performance by PPA Seller, PPA Buyer or Prepay LLC, and whether arising before, during or after the Assignment Period, in each case excluding the Delivered Product Payment Obligation, will be included in the Retained Rights and Obligations and any such Claims will be resolved exclusively between PPA Seller and PPA Buyer in accordance with the PPA.
(c) Scheduling. All scheduling of Electricity associated with Assigned Product and other communications related to the PPA shall take place between PPA Buyer and PPA Seller pursuant to the terms of the PPA; provided that (i) title to Assigned Product will pass to Prepay LLC upon delivery by PPA Seller at the Assigned Delivery Point in accordance with the PPA; (ii) immediately thereafter, title to such Assigned Product will pass to Prepay LLC, Issuer and then to PPA Buyer upon delivery by Prepay LLC at the same point where title is passed to Prepay LLC pursuant to clause (i) above; (iii) PPA Buyer will be deemed to be acting as Prepay LLC’s agent with regard to scheduling Assigned Products; provided, however, that PPA Buyer shall be entitled to retain for its own account all CAISO revenues associated with delivery of the Assigned Product to CAISO, including where PPA Buyer is acting as Scheduling Coordinator for the Facility (as defined in the PPA) and through scheduling of ISTs; and (iv) (A) PPA Buyer and PPA Seller will provide copies to Prepay LLC of (I) any notice of force majeure delivered under the PPA and (II) any notice of a default or of a breach or other event that, if not cured within an applicable grace period, could result in a default; (B) PPA Seller will provide copies to Prepay LLC of annual forecasts and monthly forecasts and generation reports delivered under the PPA; and (C) PPA Buyer and PPA Seller, as applicable, will provide copies to Prepay LLC of any other information reasonably requested by Prepay LLC relating to Assigned Product. (d) Amendments. PPA Buyer and PPA Seller will provide written notice (including copies thereof) of any amendment, waiver, supplement, modification, or other changes to the PPA to Prepay LLC relating to the Assigned Rights and Obligations, and the Parties hereby acknowledge and agree that an amendment, waiver, supplement, modification or other change will Attachment Staff Report Item 17P
5 not have any effect on Prepay LLC’s rights or obligations under this Agreement until and unless Prepay LLC receives written notice thereof.
(e) Setoff of Receivables. Pursuant to the Prepaid Agreement, Prepay LLC has agreed to purchase the rights to payment of the net amounts owed by PPA Buyer under the Prepay Power Supply Contract (“Receivables”) in the case of non-payment by PPA Buyer. To the extent any such Receivables relate to Assigned Product purchased by Prepay LLC pursuant to the Assigned Rights and Obligations, Prepay LLC may transfer such Receivables (excluding any penalties, late payment fees, late payment interest or other fees, costs or interest included in such Receivables) to PPA Seller and apply the face amount of such Receivables (excluding any penalties, late payment fees, late payment interest or other fees, costs or interest included in such Receivables) as a reduction to any Delivered Product Payment Obligations; provided, however, that at no time shall PPA Seller be required to pay Prepay LLC for any amounts by which such Receivables exceed any Delivered Product Payment Obligations then due and owed to PPA Seller. (f) Joinder to Intercreditor Agreement. In connection with the execution of this Agreement and as a condition precedent to the effectiveness hereof, Issuer shall execute a joinder to that certain Intercreditor and Collateral Agency Agreement, dated as of December 15, 2016, by and among River City Bank, as Collateral Agent, the PPA Providers from time to time party thereto and Silicon Valley Clean Energy Authority (the “Intercreditor and Collateral Agency Agreement”), which will provide Issuer with certain rights as a PPA Provider and Secured Creditor under the Intercreditor and Collateral Agency Agreement, the Security Agreement (as defined in the Intercreditor and Collateral Agency Agreement), and the Control Agreement (as defined in the Intercreditor and Collateral Agency Agreement) (collectively, the “Security Documents”) for the portion of the payments under the Prepay Power Supply Contract with respect to the Assigned Products. The Prepay Power Supply Contract shall have the same meaning as “Power Purchase Agreement” under the Intercreditor and Collateral Agency Agreement. PPA Buyer agrees that it shall make payments with respect to the Assigned Products to Issuer under the Prepay Power Supply Contract on the 20th or preceding business day of the month following deliveries consistent with the terms thereof, and such payments will not be made through the Lockbox Account (as defined in the Security Agreement) but will be made from PPA Buyer’s available funds not pledged as Collateral (as defined in the Security Agreement); provided that, in the event PPA Buyer fails to make any such payment when due under Prepay Power Supply Contract with respect to the Assigned Products, upon written request of Issuer, PPA Buyer shall cause such payment due to Issuer to be included as Regular Charges (as defined in the Security Agreement) on the first Distribution Date Certificate (as defined in the Security Agreement) to be issued at least ten (10) or more Business Days thereafter. If PPA Buyer fails to do so, Issuer may dispute such Distribution Date Certificate and otherwise pursue its rights to payment thereon pursuant to the terms of the Intercreditor and Collateral Agency Agreement. To the extent Issuer receives any amounts under the Security Documents or Intercreditor and Collateral Agency Agreement in respect of any Receivables purchased by Prepay LLC, Issuer shall (i) hold such amounts in trust for the benefit of Prepay LLC, (ii) promptly notify Prepay LLC thereof and (iii) promptly remit such amounts directly to an account specified by Prepay LLC. Issuer’s rights as a Secured Creditor and PPA Provider under the Security Documents (x) are limited to amounts owed in connection with the Assigned Products, (y) shall terminate automatically following the end of the Assignment Period, subject to payment of any amounts then owing to Issuer pursuant to the Prepay Power Supply Contract in connection with the Assigned Products, and (z) upon written Attachment Staff Report Item 17P
6 request from PPA Buyer, provided that PPA Buyer has no further obligations to Issuer, under the Prepay Power Supply Contract, Issuer shall provide a written termination statement as described under Section 7.12(d) of the Security Agreement consenting to termination of Issuer’s rights as a Secured Creditor under the Security Documents, including with respect to the Collateral, and Issuer agrees that such written termination statement shall not be unreasonably withheld, delayed or conditioned.
4. Forward Contract.
The Parties acknowledge and agree that this Agreement constitutes a “forward contract” and that the Parties shall constitute “forward contract merchants” within the meaning of the United States Bankruptcy Code.
5. Assignment Period; Assignment Early Termination.
(a) Assignment Period. The “Assignment Period” shall begin on the Assignment Period Start Date and extend until the Assignment Period End Date; provided that in no event shall the Assignment Period extend past an Assignment Early Termination Date. (b) Early Termination. An “Assignment Early Termination Date” will occur under the following circumstances and as of the dates specified below:
i. the assignment of the Prepay Power Supply Contract by PPA Buyer or Issuer pursuant to Article XIII thereof, which Assignment Early Termination Date shall occur immediately as of the time of such assignment;
ii. the suspension, expiration, or termination of performance of the PPA by either PPA Buyer or PPA Seller for any reason other than the occurrence of Force Majeure under and as defined in the PPA, which Assignment Early Termination Date shall occur immediately as of the time of PPA Seller’s last performance under the PPA following such suspension, expiration, or termination;
iii. the election of Prepay LLC in its sole discretion to declare an Assignment Early Termination Date as a result of (a) any event or circumstance that would give either PPA Buyer or PPA Seller the right to terminate or suspend performance under the PPA (regardless of whether PPA Buyer or PPA Seller exercises such right) or (b) the execution of an amendment, waiver, supplement, modification or other change to the PPA that adversely affects the Assigned Rights and Obligations or Prepay LLC’s rights or obligations under this Agreement (provided that Prepay LLC shall not have a right to terminate under this clause (b) to the extent that Prepay LLC (i) receives prior notice of such change and (ii) provides its written consent thereto), which Assignment Early Termination Date shall occur upon the date set forth in a written notice of such election delivered by Prepay LLC to PPA Buyer and PPA Seller;
iv. termination or suspension of deliveries for any reason other than force majeure under the Prepaid Agreement or Prepay Power Supply Contract, which Assignment Early Termination Date shall occur immediately as of the time of the last deliveries under the relevant contract following such suspension or termination; Attachment Staff Report Item 17P
7 v. the election of PPA Seller or PPA Buyer in its sole discretion to declare an Assignment Early Termination Date if Prepay LLC fails to pay when due any amounts owed to PPA Seller in respect of any Delivered Product Payment Obligation and such failure continues for five Business Days following receipt by Prepay LLC of written notice thereof, which Assignment Early Termination Date shall occur upon the date set forth in a written notice of such election delivered by PPA Seller or PPA Buyer, as applicable, to Prepay LLC, and with a copy to PPA Buyer or PPA Seller, as applicable; vi. the election of PPA Seller or PPA Buyer in its sole discretion to declare an Assignment Early Termination Date if either (a) an involuntary case or other proceeding is commenced against Prepay LLC seeking liquidation, reorganization or other relief with respect to it or its debts under any applicable Federal or State bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar law now or hereafter in effect or seeking the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed, or an order or decree approving or ordering any of the foregoing is entered and continued unstayed and in effect, in any such event, for a period of 60 days, or (b) Prepay LLC commences a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar law or any other case or proceeding to be adjudicated as bankrupt or insolvent, or Prepay LLC consents to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, files a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or consents to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of Prepay LLC or any substantial part of its property, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due, which Assignment Early Termination Date shall occur upon the earliest date set forth in a written notice of such election delivered by PPA Seller or PPA Buyer, as applicable, to Prepay LLC, and with a copy to PPA Buyer or PPA Seller, as applicable; vii. either Prepay LLC or PPA Buyer may designate an Assignment Early Termination Date with written notice to the other Parties to the extent that Prepay LLC and PPA Buyer have mutually agreed upon a replacement Assignment Agreement (as defined in the Prepay Power Supply Contract) that will replace the Assigned Rights and Obligations hereunder immediately following the termination hereof, which Assignment Early Termination Date shall occur effective as of the end of the Month preceding the commencement of the “Assignment Period” under the replacement Assignment Agreement as specified in the notice from Prepay LLC or PPA Buyer to the other Parties; and viii. PPA Buyer may deliver written notice of termination to the other Parties if any change, event or effect occurs, including but not limited a change in applicable laws or regulations, any issues with the PPA Seller or the PPA, a dispute under the PPA or other similar circumstance, that individually or collectively have or are reasonably expected by Attachment Staff Report Item 17P
8 PPA Buyer to have a material adverse effect upon (A) the PPA Buyer, (B) its rights and obligations under this Agreement, the Prepay Power Supply Contract, or the PPA, or (C) the benefit the PPA Buyer is receiving by assigning the Assigned Rights and Obligations, with such Assignment Early Termination Date to be the date set forth in a written notice delivered by PPA Buyer to the other Parties; provided that (x) PPA Buyer will provide notice to the other Parties as soon as is reasonably possible that PPA Buyer anticipates exercising this termination right, and (y) PPA Buyer shall exercise commercially reasonable efforts to propose and agree with Prepay LLC upon a replacement Assignment Agreement prior to exercising this termination right.
(c) Reversion of Assigned Rights and Obligations. The parties acknowledge and agree that upon the occurrence of an Assignment Early Termination Date the Assigned Rights and Obligations will revert from Prepay LLC to PPA Buyer. Any Assigned Rights and Obligations that would become due for payment or performance on or after such Assignment Early Termination Date shall immediately and automatically revert from Prepay LLC to PPA Buyer, provided that (i) Prepay LLC shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Product delivered to Prepay LLC prior to the Assignment Early Termination Date, and (ii) any legal restrictions on the effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the occurrence of the Assignment Early Termination Date.
6. Representations and Warranties.
(a) Copy of PPA. PPA Seller and PPA Buyer represent and warrant to Prepay LLC that a true, complete, and correct copy of the PPA is attached hereto as Appendix 3. (b) No Default. PPA Seller and PPA Buyer represent and warrant to Prepay LLC that no event or circumstance exists (or would exist with the passage of time or the giving of notice) that would give either of them the right to terminate the PPA or suspend performance thereunder. (c) Other. Each of PPA Buyer and PPA Seller represents and warrants to each other and to Prepay LLC that:
i. it has made no prior transfer (whether by way of security or otherwise) of any interest in the Assigned Rights and Obligations; and ii. all obligations of PPA Buyer and PPA Seller under the PPA required to be performed on or before the Assignment Period Start Date have been fulfilled. (d) Representations. Each Party represents to each of the other Parties:
i. Status. It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing.
ii. Powers. It has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Attachment Staff Report Item 17P
9 Agreement to deliver and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance. iii. No Violation or Conflict. Such execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the incurrence by such Party of its obligations under this Agreement, will not result in any violation of, or conflict with: (i) any term of any material contract or agreement applicable to it; (ii) any of its charter, bylaws, or other constitutional documents; (iii) any determination or award of any arbitrator applicable to it; or (iv) any license, permit, franchise, judgment, writ, injunction or regulation, decree, order, charter, law, ordinance, rule or regulation of any Government Agency, applicable to it or any of its assets or properties or to any obligations incurred by it or by which it or any of its assets or properties or obligations are bound or affected, and shall not cause a breach of, or default under, any such term or result in the creation of any lien upon any of its properties or assets. iv. Consents. All consents, approvals, orders or authorizations of, registrations, declarations, filings or giving of notice to, obtaining of any licenses or permits from, or taking of any other action with respect to, any Person or Government Agency that are required to have been obtained by such Party with respect to this Agreement and the transactions contemplated hereby, including the due authorization of such Party and its governing body and any approval or consent of any security holder of such Party or any holder (or any trustee for any holder) of any indebtedness or other obligation of such Party, have been obtained and are in full force and effect and all conditions of any such consents have been complied with. v. Obligations Binding. Its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
vi. Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other Parties as investment advice or as a recommendation to enter into this Agreement; it being understood that information and explanations related to the terms and conditions of this Agreement shall not be considered investment advice or a recommendation to enter into this Agreement. It is entering into this Agreement as a bona-fide, arm’s-length transaction involving the mutual exchange of consideration and, once executed by all Parties, considers this Agreement a legally enforceable contract. No communication (written or oral) received from any of the other Parties shall be deemed to be an assurance or guarantee as to the expected results of this Agreement. vii. Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and Attachment Staff Report Item 17P
10 understands and accepts, the terms, conditions and risks of this Agreement. It is also capable of assuming, and assumes, the risks of this Agreement. viii. Status of Parties. None of the other Parties is acting as a fiduciary for or an adviser to it in respect of this Agreement.
7. Counterparts.
This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile or electronic transmission), each of which will be deemed an original.
8. Costs and Expenses.
The Parties will each pay their own costs and expenses (including legal fees) incurred in connection with this Agreement and as a result of the negotiation, preparation, and execution of this Agreement.
9. Amendments.
No amendment, modification, or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by an electronic transmission) and executed by each of the Parties or confirmed by emails or electronic messages on an electronic messaging system.
10. Notices.
Any notice, demand, statement or request required or authorized by this Agreement to be given by one Party to another shall be in writing, except as otherwise expressly provided herein. It shall be sent by email transmission, courier, or personal delivery (including overnight delivery service) to each of the notice recipients and addresses for each of the other Parties designated in Appendix 2 hereto. Any such notice, demand, or request shall be deemed to be given (i) when sent by email transmission, or (ii) when actually received if delivered by courier or personal delivery (including overnight delivery service). Each Party shall have the right, upon 10 days’ prior written notice to the other Parties, to change its address at any time, and to designate that copies of all such notices be directed to another person at another address. The Parties may mutually agree in writing at any time to deliver notices, demands or requests through alternate or additional methods.
Notwithstanding the foregoing, any Party may at any time notify the other Parties that any notice, demand, statement or request to it must be provided by email transmission for a specified period of time or until further notice, and any communications delivered by means other than email transmission during such time shall be ineffective.
11. Miscellaneous.
(a) Governing Law. This Agreement and the rights and duties of the Parties under this Agreement will be governed by and construed, enforced and performed in accordance with the laws of the state of New York, without reference to any conflicts of laws provisions that would direct the application of another jurisdiction’s laws; provided, however, that the authority of PPA Attachment Staff Report Item 17P
11 Buyer to enter into and perform its obligations under this agreement shall be determined in accordance with the laws of the state of California.
(b) U.S. Resolution Stay. The Parties hereby confirm that they are adherents to the ISDA 2018 U.S. Resolution Stay Protocol (“ISDA U.S. Stay Protocol”), the terms of the ISDA U.S. Stay Protocol are incorporated into and form a part of this Agreement, and this Agreement shall be deemed a Protocol Covered Agreement for purposes thereof. For purposes of incorporating the ISDA U.S. Stay Protocol, Prepay LLC and PPA Seller shall each be deemed to be a Regulated Entity, and PPA Buyer shall be deemed to be an Adhering Party. In the event of any inconsistences between this Agreement and the ISDA U.S. Stay Protocol, the ISDA U.S. Stay Protocol will prevail.
(c) Reserved.
(d) Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope of this agreement to arbitrate, shall be determined by final, non-appealable binding arbitration in San Francisco, California before three (3) arbitrators. The arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures. Within fifteen (15) days after the commencement of arbitration, each of PPA Seller and PPA Buyer shall select one person to act as arbitrator, and the two so-selected arbitrators shall select a third arbitrator (the “chairperson”) within thirty (30) days of the commencement of the arbitration. If either PPA Seller or PPA Buyer is unable or fails to select one person to act as arbitrator, such arbitrator shall be appointed by JAMS. If the PPA Seller and PPA Buyer-selected arbitrators are unable or fail to agree upon a chairperson, the chairperson shall be appointed by JAMS. The chairperson shall be a person who has experience in renewable energy-related transactions, and none of the arbitrators shall have been previously employed by any Party or have any direct pecuniary interest in any Party or the subject matter of the arbitration, unless such conflict is expressly acknowledged and waived in writing by all of the Parties. The Parties shall maintain the confidential nature of the arbitration proceeding and any award, including any hearing(s), except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator(s) shall have no authority to award consequential, treble, exemplary, or punitive damages of any type or kind regardless of whether such damages may be available under any law or right, with the Parties hereby affirmatively waiving their rights, if any, to recover or claim such damages. In any arbitration arising out of or related to this Agreement, the arbitrators shall award to the prevailing Party or Parties, if any, the costs and attorney’s fees reasonably incurred in seeking to enforce the application of this Section 11(d) and by the prevailing party in connection with the arbitration.
Notwithstanding the foregoing provisions of this Section 11(d), any costs incurred by a Party in seeking judicial enforcement of any written decision of the arbitrators shall be chargeable to and borne exclusively by the Party against whom such court order is obtained. The award shall be final and binding on the Parties and judgment upon any award may be entered in any court of competent jurisdiction.
Attachment Staff Report Item 17P
12 (e) Judicial Reference. Without limiting the provisions in Section 11(d), if Section 11(d) is deemed ineffective or unenforceable in any respect, any dispute between the Parties arising out of or in connection with this Agreement or its performance, breach, or termination (including the existence, validity and interpretation of this Agreement and the applicability of any statute of limitation period) (each, a “Dispute”) shall be resolved by a reference proceeding in California in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure (“CCP”), or their successor sections (a “Reference Proceeding”), which shall constitute the exclusive remedy for the resolution of any Dispute. As a condition precedent to initiating a Reference Proceeding with respect to any Dispute, the Parties shall comply with the provisions of Section 11(e)i).
i. Notice of Dispute. Prior to initiating the Reference Proceeding, a Party (the “Disputing Party”) shall provide the other Parties (the “Responding Parties”) with a written notice of each issue in dispute, a proposed means for resolving each such issue, and support for such position (the “Notice of Dispute”). Within 10 days after receiving the Notice of Dispute, the Responding Parties shall provide the Disputing Party with a written Notice of each additional issue (if any) with respect to the dispute raised by the Notice of Dispute, a proposed means for resolving every issue in dispute, and support for such position (the “Dispute Response”). Thereafter, the Parties shall meet to discuss the matter and attempt in good faith to reach a negotiated resolution of the dispute. If the Parties do not resolve the dispute by unanimous agreement within sixty 60 days after receipt of the Dispute Response, (the “Negotiation Period”), then any Party may provide to the other Parties written notice of intent for judicial reference (the “Impasse Notice”) in accordance with the further provisions of this Section 11.
ii. Applicability; Selection of Referees.
(A) Within 10 days of the delivery of an Impasse Notice, each of PPA Seller and PPA Buyer shall nominate one (1) referee. The two (2) referees (the “Party-Appointed Referees”) shall appoint a third referee (the “Third Referee”, together with the Party-Appointed Referees, the “Referees”). The Party-Appointed Referees shall be competent and experienced in matters involving the electric energy business in the United States, with at least ten (10) years of electric industry experience as a practicing attorney. The Third Referee shall be an active or retired California state or federal judge. Each of the Party-Appointed Referees and the Third Referee shall be impartial and independent of each of the Parties and of the other referees and not employed by any of the Parties in any prior matter. (B) If the Party-Appointed Referees are unable to agree on the Third Referee within 45 days from delivery of the Impasse Notice, then the Third Referee shall be appointed pursuant to CCP Section 640(b) in an action filed in the Superior Court of California, County of San Francisco (the “Court”), and with due regard given to the selection criteria above. A request for appointment of a referee may be heard on an ex parte or expedited basis, and the Parties agree that irreparable harm would result if ex parte relief is not granted. Pursuant to CCP Section 170.6, each of PPA Buyer and PPA Seller shall have one (1) peremptory challenge to the referee selected by the Court.
Attachment Staff Report Item 17P
13 iii. Discovery; Proceedings.
(A) The Parties agree that time is of the essence in conducting the Reference Proceeding. Accordingly, the referees shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within 20 days after the date of selection of the Third Referee, (ii) if practicable, try all issues of law or fact within 180 days after the date of the conference, and (iii) report a statement of decision within 20 days after the matter has been submitted for decision. (B) Discovery and other pre-hearing procedures shall be conducted as agreed to by the Parties, or if they cannot agree, as determined by the Third Referee after discussion with the Parties regarding the need for discovery and other pre-hearing procedures. (C) Except as expressly set forth herein, the Third Referee shall determine the manner in which the Reference Proceeding is conducted, including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the Reference Proceeding. The Reference Proceeding, including the trial, shall be conducted at a neutral location selected by the Parties, or if not agreed by the Parties, by the Third Referee, in San Francisco, California.
(D) All proceedings and hearings conducted before the referees, except for trial, shall be conducted without a court reporter, except that when any Party so requests, a court reporter will be used at any hearing conducted before the referees, and the referees will be provided a courtesy copy of the transcript. The Party making such a request shall have the obligation to arrange for and pay the court reporter.
iv. Decision. The referees shall render a written statement of decision setting forth findings of fact and conclusions of law. The decision shall be entered as a judgment in the court in accordance with the provisions of CCP Sections 644 and 645. The decision shall be appealable to the same extent and in the same manner that such decision would be appealable if rendered by a judge of the Court. The Parties intend this general reference agreement to be specifically enforceable in accordance with the CCP. v. Expenses. Each of PPA Seller and PPA Buyer shall bear the compensation and expenses of its respective Party-Appointed Referee, own counsel, witnesses, consultants and employees. All other expenses of judicial reference shall be split equally between PPA Seller and PPA Buyer.
(f) Limitation of Liability. Notwithstanding anything to the contrary herein, all obligations of Issuer under this Agreement, including without limitation all obligations to make payments of any kind whatsoever, are special, limited obligations of Issuer, payable solely from the Trust Estate (as such term is defined in the Bond Indenture) as and to the extent provided in the Bond Indenture, including with respect to Operating Expenses (as such term is defined in the Attachment Staff Report Item 17P
14 Bond Indenture). Issuer shall not be required to advance any moneys derived from any source other than the Revenues (as such term is defined in the Bond Indenture) and other assets pledged under the Bond Indenture for any of the purposes in this Agreement mentioned. Neither the faith and credit of Issuer nor the taxing power of the State of California or any political subdivision thereof is pledged to payments pursuant to this Agreement. Issuer shall not be directly, indirectly, contingently or otherwise liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reasons of or in connection with this Agreement, except solely to the extent Revenues (as such term is defined in the Bond Indenture) are received for the payment thereof and may be applied therefor pursuant to the terms of the Bond Indenture
Attachment Staff Report Item 17P
Signature Page to Limited Assignment Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first set forth above.
MORGAN STANLEY CAPITAL GROUP INC.
By: ____________________________
Name:_______________________
Title:________________________
AVA COMMUNITY ENERGY
By: ____________________________
Name:_______________________
Title:________________________
ENERGY PREPAY [__], LLC
By: ____________________________
Name:_______________________
Title:________________________
CALIFORNIA COMMUNITY CHOICE FINANCING AUTHORITY
By: ____________________________
Name:_______________________
Title:________________________
Attachment Staff Report Item 17P
Appendix 1 - 1
Appendix 1
Assigned Rights and Obligations
PPA: [____]
Assigned Delivery Point: [____]
Assigned Product Price: [____]
Attachment Staff Report Item 17P
Appendix 2 - 1
Appendix 2
Notice Information
IF TO PPA
SELLER:
As set forth in the PPA
IF TO Prepay LLC: Energy Prepay [__], LLC
1585 Broadway
New York, NY 10036-8293
Email: [____]
IF TO ISSUER: California Community Choice Financing Authority 1125 Tamalpais Avenue
San Rafael, CA 94901
Email: [____]
IF TO PPA BUYER: As set forth in the PPA
Attachment Staff Report Item 17P
Appendix 3 - 1
Appendix 3
Copy of Power Sales Contract
[To be attached.]
Attachment Staff Report Item 17P
SM Draft 29 May 2025
FORM OF ASSIGNMENT SCHEDULE
Assigned Product: [____]
Assigned Delivery Point: [____]
Assigned Prepay Quantity: As set forth in Appendix 2; provided that (i) all Assigned Products shall be delivered pursuant to the Limited Assignment Agreement during the Assignment Period as provided in Appendix 1 and (ii) the Assigned Prepay Quantity is defined for the convenience of PPA Buyer and J. Aron and shall have no impact on the obligations of the Parties under the Limited Assignment Agreement.
APC Contract Price: $[____]/MWh
Assignment Period: [____]
Attachment Staff Report Item 17Q
1 FORM OF LIMITED ASSIGNMENT AGREEMENT
This Limited Assignment Agreement (this “Assignment Agreement” or “Agreement”) is entered into as of [____], by and among [____], a [____] (“PPA Seller”), Ava Community Energy, a joint powers authority and a community choice aggregator organized under the laws of the State of California (“PPA Buyer”), and J. Aron & Company LLC, a New York limited liability company (“J. Aron”), and relates to that certain power purchase agreement (the “PPA”) between PPA Buyer and PPA Seller as described on Appendix 1. Unless the context otherwise specifies or requires, capitalized terms used but not defined in this Agreement have the meanings set forth in the PPA.
In consideration of the premises above and the mutual covenants and agreements herein set forth, PPA Seller, PPA Buyer and J. Aron (the “Parties” hereto; each is a “Party”) agree as follows:
1. Limited Assignment and Delegation.
(a) PPA Buyer hereby assigns, transfers and conveys to J. Aron all right, title and interest in and to the rights of PPA Buyer under the PPA to receive delivery of the products described on Appendix 1 (the “Assigned Products”) during the Assignment Period (as defined in Appendix 1), as such rights may be limited or further described in the “Further Information” section on Appendix 1 (the “Assigned Product Rights”). All Assigned Products shall be delivered pursuant to the terms and conditions of this Agreement during the Assignment Period as provided in Appendix 1. All other rights of PPA Buyer under the PPA are expressly reserved for PPA Buyer. (b) PPA Buyer hereby delegates to J. Aron the obligation to pay the APC Contract Price for all Assigned Products that are actually delivered to J. Aron pursuant to the Assigned Product Rights during the Assignment Period (the “Delivered Product Payment Obligation” and together with the Assigned Product Rights, collectively the “Assigned Rights and Obligations”); provided that (i) all other obligations of PPA Buyer under the PPA are expressly retained by PPA Buyer and PPA Buyer shall be solely responsible for any amounts due to PPA Seller that are not directly related to Assigned Products; and (ii) the Parties acknowledge and agree that PPA Seller will only be obligated to deliver a single consolidated invoice during the Assignment Period (with a copy to J. Aron consistent with Section 10 hereof). To the extent J. Aron fails to pay the Delivered Product Payment Obligation by the due date for payment set forth in the PPA, notwithstanding anything in this Agreement to the contrary, PPA Buyer agrees that it will remain responsible for such payment within five (5) Business Days (as defined in the PPA) of receiving notice of such non-payment from PPA Seller. (c) J. Aron hereby accepts and PPA Seller hereby consents and agrees to the assignment, transfer, conveyance and delegation described in clauses (a) and (b) above. (d) All scheduling of Assigned Products and other communications related to the PPA shall take place pursuant to the terms of the PPA; provided that (i) title to Assigned Product will pass from PPA Seller to J. Aron upon delivery by PPA Seller of Assigned Product in accordance with the PPA; (ii) PPA Buyer will provide copies to J. Aron of any Notice of a Force Majeure Event or Event of Default or default, breach or other occurrence that, if not cured within the applicable grace period, could result in an Event of Default contemporaneously upon delivery thereof to PPA Seller and promptly after receipt thereof from PPA Seller; (iii) PPA Seller will provide copies to J. Aron of annual forecasts of Energy and monthly forecasts of available capacity and Energy provided Attachment Staff Report Item 17Q
2 pursuant to Section [__] of the PPA; (iv) PPA Seller will provide copies to J. Aron of all invoices and supporting data provided to PPA Buyer pursuant to Section [__], provided that any payment adjustments or subsequent reconciliations occurring after the date that is 10 days prior to the payment due date for a monthly invoice, including pursuant to Section [__], will be resolved solely between PPA Buyer and PPA Seller and therefore PPA Seller will not be obligated to deliver copies of any communications relating thereto to J. Aron; and (v) PPA Buyer and PPA Seller, as applicable, will provide copies to J. Aron of any other information reasonably requested by J. Aron relating to Assigned Products.
(e) PPA Seller acknowledges that (i) J. Aron intends to immediately transfer title to any Assigned Products received from PPA Seller through one or more intermediaries such that all Assigned Products will be re-delivered to PPA Buyer; and (ii) in the event that PPA Buyer fails to pay the relevant intermediary entity for any such Assigned Products, the receivables owed by PPA Buyer for such Assigned Products (“PPA Buyer Receivables”) may be transferred to J. Aron. To the extent any such PPA Buyer Receivables are transferred to J. Aron, J. Aron may transfer such PPA Buyer Receivables to PPA Seller and apply the face amount thereof as a reduction to any Delivered Product Payment Obligation. Thereafter, PPA Seller shall be entitled to pursue collection on such PPA Buyer Receivables directly against PPA Buyer. (f) The Assigned Prepay Quantity set forth in Appendix 2 relates to obligations by and between J. Aron and PPA Buyer and has no impact on PPA Seller’s rights and obligations under the PPA.
2. Assignment Early Termination.
(a) The Assignment Period may be terminated early upon the occurrence of any of the following:
(1) delivery of a written notice of termination specifying a termination date by either J. Aron or PPA Buyer to each of the other Parties;
(2) delivery of a written notice of termination specifying a termination date by PPA Seller to each of J. Aron and PPA Buyer following J. Aron’s failure to pay when due any amounts owed to PPA Seller in respect of any Delivered Product Payment Obligation and such payment is not made by J. Aron within five (5) business days following receipt by J. Aron and PPA Buyer of written notice; (3) delivery of a written notice by PPA Seller if any of the events described in the definition of Bankrupt in the PPA occurs with respect to J. Aron; or (4) delivery of a written notice by J. Aron if any of the events described in in the definition of Bankrupt in the PPA occurs with respect to PPA Seller. (b) The Assignment Period will end at the end of last delivery hour on the date specified in the termination notice provided pursuant to Section 2(a), which date shall not be earlier than the end of the last day of the calendar month in which such notice is delivered if termination is pursuant to clause 2(a)(1) or 2(a)(2) above. All Assigned Rights and Obligations shall revert from J. Aron to PPA Buyer upon the early termination of the Assignment Period, provided that (i) J. Aron shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Product delivered to J. Aron prior to the end of the Assignment Period, and (ii) any legal restrictions on the Attachment Staff Report Item 17Q
3 effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the expiration or early termination of the Assignment Period (c) The Assignment Period will automatically terminate upon the expiration or early termination of the PPA. All Assigned Rights and Obligations shall revert from J. Aron to PPA Buyer upon the expiration of or early termination of the PPA, provided that (i) J. Aron shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Product delivered to J. Aron prior to the end of the Assignment Period, and (ii) any legal restrictions on the effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the expiration or early termination of the Assignment Period.
3. Representations and Warranties. The PPA Seller and the PPA Buyer represent and warrant to J. Aron that (a) the PPA is in full force and effect; (b) no event or circumstance exists (or would exist with the passage of time or the giving of notice) that would give either of them the right to terminate the PPA or suspend performance thereunder; and (c) all of its obligations under the PPA required to be performed on or before the Assignment Period Start Date have been fulfilled.
4. Notices. Any notice, demand, or request required or authorized by this Assignment Agreement to be given by one Party to another Party shall be delivered in accordance with Article [__] of the PPA and to the addresses of each of PPA Seller and PPA Buyer specified in the PPA. PPA Buyer agrees to notify J. Aron of any updates to such notice information, including any updates provided by PPA Seller to PPA Buyer. Notices to J. Aron shall be provided to the following address, as such address may be updated by J. Aron from time to time by notice to the other Parties:
J. Aron & Company LLC
200 West Street
New York, New York 10282-2198
Email: [email protected]
5. Miscellaneous. Section [__] (Buyer’s Representations and Warranties), Article [__] (Confidential Information), Sections [__] (Severability), [___] (No Consequential Damages), [__] (Counterparts), [__] (Amendments), [__] (No Agency, Partnership, Joint Venture or Lease), [__] (Mobile-Sierra), [__] (Electronic Delivery), Section [__] (Binding Effect) and [__] (No Recourse to Members of Buyer) of the PPA are incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein.
6. U.S. Resolution Stay Provisions.
(a) Recognition of the U.S. Special Resolution Regimes. (i) In the event that J. Aron becomes subject to a proceeding under (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder or (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder (a “U.S. Special Resolution Regime”), the transfer from J. Aron of this Agreement, and any interest and obligation in or under, and any property securing, this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any interest and obligation in or under, and any property securing, this Agreement were governed by the laws of the United States or a state of the United States.
Attachment Staff Report Item 17Q
4 (ii) In the event that J. Aron or an Affiliate becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Rights (as defined in 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable (“Default Right”)) under this Agreement that may be exercised against J. Aron are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(b) Limitation on Exercise of Certain Default Rights Related to an Affiliate’s Entry Into Insolvency Proceedings. Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that:
(i) PPA Buyer and PPA Seller shall not be permitted to exercise any Default Right with respect to this Agreement or any Affiliate Credit Enhancement that is related, directly or indirectly, to an Affiliate of J. Aron becoming subject to receivership, insolvency, liquidation, resolution, or similar proceeding (an “Insolvency Proceeding”), except to the extent that the exercise of such Default Right would be permitted under the provisions of 12 C.F.R. 252.84, 12 C.F.R. 47.5 or 12 C.F.R. 382.4, as applicable; and
(ii) Nothing in this Agreement shall prohibit the transfer of any Affiliate Credit Enhancement, any interest or obligation in or under such Affiliate Credit Enhancement, or any property securing such Affiliate Credit Enhancement, to a transferee upon or following an Affiliate of J. Aron becoming subject to an Insolvency Proceeding, unless the transfer would result in PPA Buyer or PPA Seller being the beneficiary of such Affiliate Credit Enhancement in violation of any law applicable to PPA Buyer or PPA Seller, respectively.
(c) U.S. Protocol. To the extent that PPA Buyer and PPA Seller each adhere to the ISDA 2018 U.S. Resolution Stay Protocol, as published by the International Swaps and Derivatives Association, Inc. as of July 31, 2018 (the “ISDA U.S. Protocol”), the terms of the ISDA U.S. Protocol will supersede and replace the terms of this Section
6. (d) Definitions. For purposes of this Section 6:
“Affiliate” is defined in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Credit Enhancement” means any credit enhancement or credit support arrangement in support of the obligations of J. Aron under or with respect to this Agreement, including any guarantee, collateral arrangement (including any pledge, charge, mortgage or other security interest in collateral or title transfer arrangement), trust or similar arrangement, letter of credit, transfer of margin or any similar arrangement.
7. Governing Law, Jurisdiction, Waiver of Jury Trial.
(a) Governing Law. This Assignment Agreement and the rights and duties of the parties under this Assignment Agreement will be governed by and construed, enforced and performed in accordance with the laws of the State of California, without reference to Attachment Staff Report Item 17Q
5 any conflicts of laws provisions that would direct the application of another jurisdiction’s laws.
(b) Jurisdiction. Each party submits to the exclusive jurisdiction of the federal courts of the United States of America for the Northern District of California sitting in the city and county of San Francisco.
(c) Waiver of Right to Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this assignment agreement.
[Remainder of Page Intentionally Blank]
Attachment Staff Report Item 17Q
6 IN WITNESS WHEREOF, the Parties have executed this Assignment Agreement effective as of the date first set forth above.
[PPA SELLER]
By:
Name:
Title:
AVA COMMUNITY ENERGY
By:
Name:
Title:
By:
Name:
Title:
J. ARON & COMPANY LLC
By:
Name:
Title:
Execution and delivery of the foregoing Assignment Agreement is hereby approved.
CALIFORNIA COMMUNITY CHOICE FINANCING AUTHORITY
By:
Name:
Title:
Attachment Staff Report Item 17Q
7 Appendix 1
Assigned Rights and Obligations
PPA: “PPA” means that certain Power Purchase and Sale Agreement dated [____], by and between Ava Community Energy and [____], as amended from time to time. “Assignment Period” means the period beginning on [___________] and extending until [___________], provided that in no event shall the Assignment Period extend past the earlier of (i) the termination of the Assignment Period pursuant to Section 2 of the Assignment Agreement and (ii) the end of the Delivery Term under the PPA; provided that applicable provisions of this Agreement shall continue in effect after termination of the Assignment Period to the extent necessary to enforce or complete, duties, obligations or responsibilities of the Parties arising prior to the termination.
Assigned Product: “Assigned Products” include [____].
Further Information: PPA Seller shall continue to transfer the WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy under the PPA pursuant to Section [__] of the PPA, provided that the transferee of such WREGIS Certificates may be changed from time to time in accordance with the written instructions of both J. Aron Ava Community Energy upon twenty (20) Business Days’ notice, which change shall be effective as of the first day of the next calendar month, unless otherwise agreed. All Assigned Product delivered by PPA Seller to J. Aron shall be a sale made at wholesale, with J. Aron reselling all such Assigned Product.
Attachment Staff Report Item 17Q
8 Appendix 2
Assigned Prepay Quantity
[NOTE: To be set forth in a monthly volume schedule.]
Attachment Staff Report Item 17Q
A-1
AVA COMMUNITY ENERGY
General
Ava Community Energy Authority (“Ava”) (formerly East Bay Community Energy Authority) is a joint powers authority organized and existing pursuant to the Joint Exercise of Powers Act (constituting Chapter 5 of Division 7 of Title 1 (commencing with Section 6500), as amended or supplemented from time to time) (the “Joint Powers Act”), as a “community choice aggregator” (“CCA”) as defined in Section 331.1 of the Public Utilities Code of the State of California, as amended (the “Public Utilities Code”). For a general description of CCAs in California, see the section “COMMUNITY CHOICE AGGREGATORS” in this Official Statement.
Ava was originally created in 2016 under the name “East Bay Community Energy Authority” as a CCA in California pursuant to a Joint Powers Agreement, as amended, by and among the cities and towns participating in Ava and named therein (the “JPA”). Ava changed its name from East Bay Community Energy to Ava Community Energy in October 2023. Ava began providing service to customers in 2018.
Originally created to serve communities in Alameda County, Ava now serves 18 member communities across two Bay Area counties: Alameda County and San Joaquin County. Ava began providing service to the City of Stockton and Lathrop in San Joaquin County in April 2025 and will begin service to unincorporated San Joaquin County in 2026. Ava offers renewable power at stable rates, significantly reducing energy-related greenhouse emissions and enabling millions of dollars of reinvestment in local energy programs. Ava’s mission is to drive increasing access to clean energy, serving the needs of our customers and the well-being of our community by delivering positive environmental impacts and local economic benefits.
Formation and History of Ava
General. Ava was formed in December 2016 as a “joint powers authority” to provide electric power and related benefits within its service area, including developing a wide range of renewable energy sources and local clean energy programs. The formation of Ava was made possible by the passage of California Assembly Bill 117 in 2002, enabling communities to purchase power on behalf of their residents and businesses. The Public Utilities Code Section 380(k) categorizes CCAs, and therefore Ava, as “load-serving entities” (“LSEs”) for the communities they serve. Ava provides retail energy to customers, and does not provide transmission, distribution, or billing services. Transmission, distribution, and billing services are provided by Pacific Gas and Electric Company (“PG&E”). PG&E collects and remits Ava’s billings for electricity to Ava daily.
Commencement of Service and Expansion. Ava began serving customers in communities in Alameda County in 2018, except for the City of Alameda, which has its own municipal utility, and the cities of Newark and Pleasanton, which did not decide to join the execution of the initial JPA. In 208 the Board of Directors adopted a policy enabling Ava to provide service to new communities, leading to expansion of Ava’s service territory to include the Alameda County communities of Newark and Pleasanton, as well as the City of Tracy in neighboring San Joaquin County. The Board adopted a resolution to include the City of Stockton in 2022, City of Lathrop in 2023 with service starting in 2025, and the unincorporated areas of San Joaquin County in 2024. Service to the unincorporated areas of San Joaquin County is expected to begin in 2026. As further described below, Ava now includes 18 communities.
Attachment Staff Report Item 17R
A-2
Members and Service Area
Members and Communities Served by Ava. Ava currently has 18 member jurisdictions in Alameda and San Joaquin Counties, as follows:
Jurisdiction Joined JPA Start of Service
Albany
Berkeley
Dublin
Emeryville
Fremont
Hayward
Livermore
Oakland
Piedmont
San Leandro
Union City
County of Alameda
2016 2018
Newark
Pleasanton
Tracy
2018 2020
Stockton 2022 2025
Lathrop 2023 2025
County of San Joaquin 2024 2026
Service Area Map. The current service area of Ava is shown on the map below,, This map does not reflect service to the unincorporated region of San Joaquin County, for which Ava will begin service in 2026.
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Governance and Management
Board of Directors. Ava is governed by its Board of Directors. Each community that has elected to join Ava appoints a representative to the Board of Directors. Members of the Board of Directors serve at the pleasure of their respective communities. Meetings of the full Board of Directors are scheduled every month. There are also an Executive Committee, a Financial, Administrative, and Procurement Subcommittee, a Marketing, Regulatory, and Legislative Subcommittee, a Community Advisory Committee, and Ad Hoc Committees with members appointed by the Board of Directors that review and report to the Board on various matters.
Management.
Howard Chang, Chief Executive Officer: As CEO, Howard is responsible for the vision, strategy, and leadership of Ava. Prior to his role as CEO, Howard served as Chief Operating Officer to Ava for 6 years. Prior to Ava, Howard led Sol Systems’ Utility Development and M&A efforts nationally and worked at SunEdison leading the C&I Channel Operations team, serving as Chief of Staff of the North America Region, and in Utility scale project finance. He began his career in Investment Banking at J.P. Morgan and worked in General Electric’s Energy Financial Services division and EnerNoc’s Utility Solutions team.
Howard holds an MBA from the Yale School of Management, a Master of Environmental Management from the Yale School of Forestry & Environmental Studies, and a BA in Economics from Johns Hopkins University.
Russell Mills, Senior Vice President and Chief Financial Officer: Russell serves as the Chief Financial Officer and Treasurer of Ava, overseeing all financial operations for Ava. Russell works closely with the CEO to operationalize and execute the strategy and vision for Ava, managing the development and establishment of internal policies and procedures to help take Ava to the next level of maturity and growth.
As Treasurer, Russell is also responsible for managing the financial health of the agency. He has more than 25 years of energy and public finance industry experience. His career focus has been on building and maintaining financial strength for public serving organizations, to help them provide affordable and reliable power resources to customers.
He joined Ava in 2025 after seven years at SMUD where he served as Treasurer and Director of Risk Management, overseeing the Cash, Investment and Debt Management processes, and the Commodity Risk and Insurance programs. Prior to that he was the CFO for the Southern California Public Power Authority (SCPPA), a JPA formed in southern California to enable member cities to procure and finance affordable power resources for their customers. He also served as the CFO and other roles for the Power Supply Program within California’s Dept. of Water Resources for twelve years, set up in response to the Energy Crisis that ensued in the early 2000s. He is originally from Maryland, moving west 1997, but has lived in Northern California since 2001, currently residing in El Dorado Hills with his fiancé and two daughters.
Todd Edminster, Deputy General Counsel & Senior Director of Public Policy. Todd leads Ava’s Public Policy team, overseeing regulatory compliance, as well as Ava’s participation in regulatory proceedings at the California Public Utilities Commission (CPUC), California Energy Commission (CEC), California Air Resources Board (CARB), and California Independent System Operator (CAISO) on strategic issues that affect Ava. He works closely with Ava’s lobbying firm on state and federal matters that impact Ava.
Todd served the California Public Utilities Commission (CPUC) as an Administrative Law Judge from 2013-2016, and as a Public Utilities Counsel from 1999-2004. Before and after his time at the CPUC, Todd spent over fifteen years in private practice litigating various regulatory matters before the CPUC and Attachment Staff Report Item 17R
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FERC and advising project developers and project financiers on regulatory issues associated with utility-scale renewable and traditional generation projects. He is also experienced in negotiating power purchase agreements and interconnection agreements. Todd received his J.D. from the University of California at Berkeley, UC Berkeley Law in 1995. He earned his B.A. in economics from UC Berkeley in 1991. He is a member of the State Bar of California.
Jason Bartlett, Senior Finance Manager. As Senior Finance Manager, Jason is responsible for all Finance, Budget, Accounting, Investments, and Internal Financial Risk Management functions. Jason joined Ava early in its operations with the goal of further enhancing the organization’s mandate of advancing renewable energy and energy efficiency through reduced financing costs, improving and leveraging Ava’s credit strength, and maximizing returns on capital and investments. Jason brings over 10 years of public utility finance experience having worked with some of California’s largest agencies, including the CEC, CPUC, and SFPUC. He has extensive experience managing large budgets and has helped finance over $1 billion of utility infrastructure projects over his career.
Marie Fontenot, Senior Vice President of Power Resources. Marie sets the procurement strategy for all wholesale power products and leads a team to execute this strategy, ensuring Ava delivers upon its commitments to the Board of Directors and communities it serves to provide customers with clean, affordable electricity. She also ensures Ava complies with California’s Renewable Portfolio Standard, Resource Adequacy, and electric system reliability requirements.
Prior to joining Ava, Marie served as Chief of Staff to PG&E’s Executive Vice President and General Counsel; she also led PG&E’s Competitive Solicitations team, negotiated long-term energy storage and renewable energy contracts, and stood up PG&E’s renewable energy credit (REC) trading program.
She began her career in energy at Xcel Energy as a NERC-certified Power Systems Trader responsible for bidding supply and demand into the MISO and SPP energy markets, performing generation control and dispatch, and trading physical electricity. Marie holds a BS in Journalism and an MBA from the University of Colorado.
Customers
General. Currently, Ava provides energy to more than 730,000 residential, commercial, and industrial accounts serving approximately 2,000,000 residents and businesses in its service area. The current mix of Ava’s customer base is approximately 40% residential and 60% commercial/industrial/municipal by percentage of load served.
Customer Energy Choices. Ava offers two different choices of energy service, referred to as Bright Choice and Renewable 100. In 2023, customers receiving Bright Choice service received a minimum of
54.8% renewable energy, sourced from a mix of wind, geothermal, solar, small hydro and biomass/biowaste, and an additional 34.1% from large hydro, carbon free resources. As per Ava Board policy, Bright Choice service targets to ramp up to 100% greenhouse gas free (“GHG-free”) by 2030.
Customers that elected to receive Renewable 100 are provided with 100% RPS-qualified renewable energy sources priced at 1/4 cent per kWh above PG&E rates.
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Customer Enrollment. All customers are automatically enrolled in the default product selected by their local jurisdiction based on customer class and program participation, as shown in the table below, as of May 2025. Customers may change their product after enrolling in the default service.
Jurisdiction Commercial Residential CARE/FERA/Med
Albany Renewable 100 Renewable 100 Bright Choice
Berkeley Renewable 100 Renewable 100 Bright Choice
Dublin Renewable 100 Renewable 100 Bright Choice
Emeryville Renewable 100 Renewable 100 Bright Choice
Fremont Renewable 100
(starting in Aug 2026)
Renewable 100
(starting in Aug 2025)
Bright Choice
Hayward Renewable 100 Renewable 100 Bright Choice
Piedmont Bright Choice Renewable 100 Bright Choice
Pleasanton Renewable 100 Renewable 100 Bright Choice
San Leandro Renewable 100 Renewable 100 Bright Choice
All other Jurisdictions* Bright Choice Bright Choice Bright Choice * Lathrop, Livermore, Newark, Oakland, Stockton, Tracy, Union City, and County of Alameda By end of calendar year 2024, approximately 68.7% of Ava customer load was delivered by Bright Choice service, and approximately 31.3% was Renewable 100 service.
Largest Customers. Currently, Ava's ten largest customers account for 4.28% of its total load. The single largest customer contributes 0.65%, while each of the remaining customers individually accounts for less than 0.53%. As of 2025, Ava has retained all major customers, with no significant losses to direct access since 2021.
New Customers. Ava has fully enrolled the cities and unincorporated portions of Alameda County, except for the city of Alameda which is already served by a municipal utility. Ava also serves the cities of Lathrop, Stockton, and Tracy in San Joaquin County. Ava added the unincorporated areas of San Joaquin County but as not yet begun to serve its customers, which is anticipated to begin in 2026.
Customer Election to Opt-out of Ava Service. Customers can opt-out of Ava service and return to service from their traditional electric service provider, PG&E, either initially upon the transition to Ava, or at any time after Ava becomes the energy provider.
Cumulative Opt-Out Rate and Customer Retention. Opt-out rates are approximately 4-5.3% for eligible customers. In general, Ava expects opt-out rates to be about 5-7% when Ava service begins in a new community. Most opt-outs occur during the 120-day transition period to Ava service.
Service Rates
General. Rates for Ava energy service are determined by its Board of Directors and are not regulated by the CPUC. In addition to Ava’s charges for energy, customers’ rates include amounts for transmission and distribution of electricity established by PG&E, as well as a “power charge indifference adjustment” (“PCIA”) and other non-by-passable load charges imposed by the CPUC. The PCIA is a charge or credit related to historic investor-owned utility investments in power generation and long-term power purchase contracts, which in each case are passed through on a customer’s bill at CPUC-approved rates.
Determination of Rates for Energy. The rates Ava charges for Bright Choice and Renewable 100 service are based on the current generation rate charged by PG&E, inclusive of the PCIA rate. All value Attachment Staff Report Item 17R
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propositions are priced inclusive of the PCIA. Since July 2023, Bright Choice service has been priced at 5% below the cost of PG&E and Renewable 100 has been an additional 0.25 cents per kilowatt-hour (kWh) compared to the PG&E generation rate.
Current and Historical Rate Information. An Ava customer’s total cost of electric service is determined by Ava’s charges for energy and include PG&E charges for transmission, distribution, and other non-by-passable charges. One non-by-passable charge is the PCIA. PCIA rates can vary annually based upon several market factors including energy prices, resource adequacy prices, and RPS prices. PCIA also varies with, the year in which a community joined Ava, among other considerations. These charges – generation, wires, and non-by-passable charges, inclusive of the PCIA, establish the all-in cost of service to Ava’s customers.
The primary alternative to Ava service is to opt-out of Ava service and return to PG&E service where the customer would pay the PG&E bundled generation rate (which includes the PCIA rate) in addition to wires and other non-by-passable charges. Ava’s rates for Bright Choice service, the default for most customers, including the PCIA, have been below PG&E rates since initial enrollment of customers.
Even when the cost of Ava service to customers has been at or higher than PG&E’s, such as in those communities that have selected Renewable 100 as the default service, Ava has not experienced a material number of opt-outs and has consistently maintained customers counts in those jurisdictions.
California Renewable Portfolio Standards and Other Regulations General. Community choice aggregators such as Ava are “load-serving entities” (“LSEs”) and as such are required to comply with California’s Renewable Portfolio Standard, Resource Adequacy requirements and Power Source Disclosure requirements described below.
Renewable Portfolio Standard. California’s Renewable Portfolio Standard (“RPS”) requires LSEs to supply their retail sales with minimum quantities of eligible renewable energy. Senate Bill 100 directs all LSEs to procure 60% of their portfolios from RPS-eligible resources by 2030, and 100% of their retail sales from zero-carbon resources (or eligible renewable resources) by 2045. Ava has adopted a policy to achieve 100% of retail sales from zero-carbon resources by 2030, fifteen years before the state mandate.
Ava’s 2023 retail sales contained 54.8% RPS-eligible resources for Bright Choice service. To date Ava has executed 20 RPS contracts and 9 contracts of ten years or more in duration for stand-alone or paired energy storage. Ava will continue to solicit and execute additional contracts to meet Ava’s RPS long-term contracting requirements.
Resource Adequacy. Resource Adequacy (“RA”), a California program jointly administered by the CPUC, the California Energy Commission (“CEC”) and the California Independent System Operator (“CAISO”), directs LSEs to secure forward capacity and offer it into the CAISO’s Day-Ahead and Real-Time markets to ensure that there will be enough supply in the right locations and with sufficient ramping capability to meet load. The RA program is comprised of three products: System RA; Local RA; and Flexible RA, although rules and categories are subject to modification by state agencies. Local RA obligations have been assigned to a Central Procurement Entity as of 2023. Ava has a strong track record of meeting its RA obligations and expects to meet its future RA obligations in compliance with its Energy Risk Management Policy.
Integrated Resource Planning. Integrated Resource Planning (“IRP”) requires LSEs to forecast their customer load and develop a plan to serve such load in alignment with their own vision and values and in accordance with regulatory requirements. In October 2015, California codified this LSE responsibility with the passage of SB 350, which requires the CPUC to establish and oversee an IRP process to assist with meeting the state’s aggressive GHG targets (40% below 1990 levels by 2030). The IRP Attachment Staff Report Item 17R
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process, which is used in many states across the US, generally produces 10- to 20-year plans that map out both the supply-side and demand-side resources required for meeting customer load. Given the complexity of the grid and the time required to plan and build generating facilities, IRPs are critical for ensuring safe, reliable and clean power in a cost-effective manner. In addition to addressing the long-term planning horizon typical of an IRP process, the IRP process has been used in recent years to direct procurement of new capacity to meet near- and mid-term reliability and clean energy needs per CPUC Decision (“D.”) 19- 11-016, D. 21-06-035 and D. 23-02-040. Pursuant to the procurement orders in these CPUC Decisions, LSEs are required to procure “Incremental System Capacity,” which is RA capacity from non-emitting, storage, and/or renewable resources that are in addition to the resources identified on a baseline list of existing, on-line and operating resources.
Power Source Disclosure. California law requires LSEs to disclose the types of power resources used to supply retail sales. This mandate, known as the Power Source Disclosure Program (“PSDP”), is a consumer information program managed by the CEC on an annual basis. A key output of the PSDP is the Power Content Label (“PCL”). The PCL is an LSE-specific document that shows the breakdown of power resource types for each of the LSE’s energy products used to serve retail load, as well as a breakdown of resource types for the overall California grid. The PCL is distributed to customers each year.
Energy Demand
Long-term Load Forecast. Ava’s long-term load forecast is a 10-year projection of the energy (reflected in MWh) that its customers will annually consume. This forecast is driven primarily by the number and types of customers that Ava expects to serve, in conjunction with weather projections. Ava's long-term load forecast starts with customers’ hourly consumption data and layers in the incremental effects of Ava programs over time. The short-term estimates (current and following year) are based on individual's historical consumption over the last four years, grouped by the month, day-type (weekday v. weekend / holiday), and hour of the day to predict future usage, along with customer and usage growth trends based on the most recent data available. For future years, Ava works closely with the California Energy Commission (CEC) to align the methodology that informs growth assumptions. The forecast assumes a baseline level of growth of 0.2%, which represents increases in customer-level usage. On top of this organic load growth of 0.2%, the forecast layers in the load-building effects of additional electric vehicle deployment (consistent with CA state goals regarding EV penetration where applicable) and building electrification, as well as the load-reducing impacts of energy efficiency (an incremental 0.25% of base load annually) and behind-the-meter solar (roughly 8% growth in installations annually).
Finally, and most significantly, Ava works closely with the CEC and the jurisdictions we serve to monitor data center siting and development in our service territory to ensure that Ava is able to meet the increased demand for electricity that results from these large loads. Ava has incorporated data center load additions consistent with communications from PG&E and recent estimates in the CEC’s Integrated Energy Policy Report.
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Sources of Energy
General. Ava uses a portfolio risk-management approach in its power purchasing program, seeking low-cost supply as well as diversity among technologies, production profiles, project sizes and locations, counterparties, length of contract, and timing of market purchases. Ava currently has over 100 renewable, hydro, system energy, hedge and Resource Adequacy contracts in place from diversified sources and counterparties, totaling about $6.8 billion in notional value to meet its customers’ needs for electricity and related commodity products over the next 20-25 years.
Energy Purchases. In 2024, Ava procured approximately 6.4 million MWh of carbon free electricity for its customers. Ava anticipates that roughly 90% of its total 2025 retail sales will be sourced from renewables, large hydroelectric, nuclear, and Asset Controlling Supplier (“ACS”) energy (primarily large hydroelectric energy from the Pacific Northwest, but also relatively small amounts of nuclear energy and unspecified system energy). Ava’s procurement strategy through 2030 includes procuring additional California renewables through 2030, via contracts with terms of 10 years or more and via short-term contract, based on portfolio optimization. These renewables contracts will be in addition to the 1,295 MW of California-eligible renewable resources that Ava has already procured. The strategy also includes investments in wholesale storage capacity and stand-alone storage, as further described below.
Energy Load and Supply Risk Management. Ava continually manages its forward load obligations and supply commitments with the objective of balancing cost stability and cost minimization, while leaving some flexibility to take advantage of market opportunities or technological improvements that may arise.
Ava closely monitors its open positions for Portfolio Content Category 1 (“PCC 1”) and Portfolio Content Category 2 (“PCC 2”) renewable energy, both of which are based on calendar-year targets. Ava maintains its renewable portfolio coverage targets of up to 100% in the near term and leaves a greater portion open in the medium- to long-term, consistent with generally accepted industry practice.
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Ava monitors its positions on a regular basis with its Scheduling Coordinator. Ava uses fixed-price energy contracts to hedge CAISO day-ahead market price exposure associated with its portfolio. More specifically, for the volumes and hours where Ava does not have supply contracts that yield CAISO day-ahead revenue, Ava uses fixed-price energy contracts where Ava pays a fixed price per MWh to receive a floating price that clears for each hour. This helps hedge Ava’s CAISO day-ahead market price exposure.
As Ava procures increasing portions of fixed-price renewables with storage and fixed-price large hydroelectric and ACS energy, Ava expects to reduce its use of fixed-price unspecified CAISO energy contracts.
Procurement. Ava procures energy and Resource Adequacy consistent with its Board-approved Energy Risk Management Policy. To effectively plan and manage its portfolio, Ava differentiates contracts by their term length: short-term and long-term (longer than ten years). Based upon the expected contract tenor, Ava may use a variety of methods, including competitive solicitations, standard contract offerings, and bilaterally negotiated agreements. With regards to short-term power purchases, Ava may negotiate bilateral agreements directly, especially for unique or time-sensitive transactions that do not lend themselves to inclusion in a competitive solicitation. Alternatively, particularly in markets with sufficient transparency to ensure competitive outcomes, Ava may negotiate short-term transactions via its scheduling coordinator or independent energy brokers or marketers.
Bright Choice Procurement Targets. Reducing GHG emissions is at the heart of Ava’s mission.
Bright Choice is currently the service offering for 70% of Ava customers (and about 68.7% of the load) and Ava structures the Bright Choice portfolio to deliver a higher renewable content and a competitive cost in comparison to PG&E.. Ava will ramp up to 100% GHG-free by 2030. To deliver the GHG-free power for Bright Choice, Ava procures three products: (1) RPS-eligible renewable energy; (2) large hydroelectric energy; and (3) ACS energy, the vast majority of which is large hydroelectric. In 2025, Ava’s Board of Directors authorized staff to accept an allocation of nuclear energy from PG&E, energy for which Ava’s customers are paying and from which Ava had the option to accept under the PCIA proceeding. In 2025, a substantial volume of nuclear energy will appear on the PCL for Bright Choice customers. (Remainder of page intentionally left blank)
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Ava 2024 Resource Mix
Resource Type Percent of Total Retail Sales
Renewable Procurement 60.9%
Coal
Large Hydroelectric 34%
Natural Gas
Nuclear
Other
Unspecified Power 5.1%
TOTAL 100%
Note: Ava’s final power content for 2024 is in draft form as of May 22, 2025.
Ava 2025 Estimated Resource Mix*
Resource Type Percent of Total Retail Sales
Renewable Procurement 54.4%
Coal
Large Hydroelectric 24.2%
Natural Gas
Nuclear 11%
Other
Unspecified Power 10.4%
TOTAL 100%
Note: Ava’s 2025 power content is an estimate as of May 22, 2025. *The chart directly above is the estimated energy supply that Ava will use to serve its 2025 retail sales for the Bright Choice and Renewable 100 product offerings as a blended average.
Further descriptions of Ava’s policies and procedures addressing energy procurement and risk management can be found on the Ava website at https://avaenergy.org/. The reference to this web site address is presented herein for informational purposes only, and information on such website is not incorporated by reference to this Official Statement.
Engineering, Analytics and Salesforce
Ava’s information technology staff is integrated across defined functional areas including a general IT management function to assist staff with day-to-day technology needs. Additionally, the Engineering, Analytics and Salesforce (EAS) Department, (formerly Technology and Analytics) consists of 8 professionals that handle all aspects of data management, data engineering, data science and analytics. Ava employs a cloud-first data strategy, where all mission-critical data is stored on cloud services. Ava’s technology stack is based on Google technologies, using G Suite for collaboration and the Google Cloud Platform (GCP) for data analysis and processing. GCP offers a modern infrastructure for storing, Attachment Staff Report Item 17R
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processing, and analyzing sensitive data in the cloud, with encryption by default of data at-rest and in-transit, as well as fine-grained access control to sensitive resources.
In addition to the security infrastructure embedded in both GCP and G Suite, the EAS department also oversees general compliance with rules and regulations established by the California Public Utilities Commission (CPUC) related to data privacy and security. Ava conducts independent tri-annual audits of its security and data privacy practices – which are submitted to the CPUC – and produces additional data privacy reports for the CPUC annually, in compliance with CPUC regulations. To date, Ava has not been the subject of any breaches or data security incidents.
Finally, the EAS team also oversees device and application security and related policies. In addition to standard threat mitigation and security measures (such as password policies and the use of antivirus software), Ava enforces multi-factor authentication (MFA) where available on all mission-critical applications.
Ultimately, by using a centralized cloud-first policy for critical resources and attendant applications, by enforcing modern security practices such as MFA, and by limiting the use of distributed storage devices, Ava can minimize its attack surface and exposure to security incidents.
Energy Storage
Ava currently has approximately 700 MW of wholesale (i.e., in front of the meter) storage capacity contracted over the course of the next ten to twenty years. Of the 700 MW of already contracted storage capacity, approximately 300 MW will be paired with renewables, and Ava is in the process of preparing and executing additional contracts including for stand-alone storage.
In 2020, Ava launched its Resilient Home Program to deploy customer-sited solar and battery storage systems capable of providing both backup power and behind-the-meter dispatch, driving decarbonization, lowering utility costs for program participants, and enabling local grid management through load shaping. This program prioritizes vulnerable customers and populations that are disproportionately affected by grid outages.
Financial Information
Revenues from Energy Sales and Operating Expenses. Ava derives its operating revenues primarily from energy sales to its customers. Increases in year-over-year revenue is primarily driven by inclusion of customers through the phased launching of the enterprise. Industrial and commercial accounts began in June 2018 and comprise the entirety of revenues and energy costs for the 2017/18 fiscal year. Residential customers were included in the second quarter of 2018/19. Fiscal year 2019/20 represents Ava’s first full operating year. Three additional communities were added in April 2021, adding about 13% to revenues. 2 additional communities, Stockton and Lathrop were added in April of 2025, adding about __% to revenues.
In 2026, unincorporated portions of San Joaquin County will be begin service and will add approximately 11% to revenues. Operating expenses, which are comprised primarily of energy procurement costs, also increased due primarily to the phased launch.
Other Sources of Revenue. Ava also receives revenues from grant income used to assist with various customer programs, and occasionally contractual damages from counterparties that fail to deliver on obligation.
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Results of Operations. The following is a summary of Ava’s results of operations for fiscal years ending June 30:
Assets, Liabilities, Deferred Inflows or Resources and Net Position. The following table is a summary of Ava’s assets, liabilities, deferred inflows or resources and net position for the years ending June 30:
Ava Community Energy Income Statements FY 2023/24 FY 2022/23 FY 2021/22 FY 2020/21 FY 2019/20
OPERATING REVENUES
Electricity Sales, net 919,222,939 847,306,890 538,713,401 425,733,911 475,727,273 GASB 62 Revenue Deferral Fund (26,902,987) (37,200,000) - (3,134,000) (12,680,000) Liquidated Damages 15,330,202 6,150,378 14,658,400 - -
Grant Revenue 1,440,935 1,498,666 1,614,597 - -
Other Revenue 445,263 175,378 346,148 902,949 334,205
Total Revenue 909,536,352 817,931,312 555,332,546 423,502,860 463,381,478 Operating Expenses
Cost of Electricity 707,476,247 658,204,854 474,633,255 377,480,734 373,477,417 Contract Services 18,980,445 18,104,240 16,611,808 13,906,614 12,890,724 Staff Compensation 16,269,116 12,950,359 7,887,849 7,134,883 5,852,793 General & Administration 5,736,911 4,435,677 2,738,461 2,585,219 3,302,768 Depreciation 699,331 90,761 62,601 52,603 43,298
Total Operating Expenses 749,162,050 693,785,891 501,933,974 401,160,053 395,567,000 Operating Income 160,374,302 124,145,421 53,398,572 22,342,807 67,814,478
NONOPERATING REVENUE (EXPENSES)
Grant Revenue - 4,050,916 7,901,267 - -
Interest Income 13,149,786 2,609,002 221,757 636,395 1,357,175 Interest Expense (846,333) (678,679) (903,504) (869,612) (743,178) Capital Expenditures - - - - -
Total Nonoperating Revenues (Expenses) 12,303,453 5,981,239 7,219,520 (233,217) 613,997
NET POSITION
Change in Net Position 172,677,755 130,126,660 60,618,092 22,109,590 68,428,475 Net position at beginning of year 362,656,276 232,529,616 171,911,524 149,801,934 81,373,459 Net position at end of year 535,334,031 362,656,276 232,529,616 171,911,524 149,801,934 Attachment Staff Report Item 17R
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Deposit Accounts. Ava maintains its cash in both interest-bearing and non-interest-bearing demand and term deposit accounts at River City Bank of Sacramento, California as well as US Bank. Ava’s deposits are subject to California Government Code Section 16521 which requires that banks collateralize public funds in excess of the Federal Deposit Insurance Corporation limit of $250,000 by 110%. Ava monitors its risk exposure to River City Bank and US Bank on an ongoing basis. Ava’s Investment Policy permits the investment of funds in depository accounts, certificates of deposit and the Local Agency Ava Community Energy Balance Sheet FY 2023/24 FY 2022/23 FY 2021/22 FY 2020/21 FY 2019/20 ASSETS
Current assets
Cash and cash equivalents 574,113,778 291,035,233 152,215,061 129,847,706 108,481,294 Accounts receivable, net of allowance 84,962,803 84,198,659 79,814,399 43,911,325 50,082,004 Accrued revenue 60,952,393 45,767,329 47,590,010 27,952,207 26,130,467 Market settlements receivable - 807,102 - 5,025,939 1,980,256 Other receivables 242,447 90,568 6,302,352 708,188 111,261 Prepaid expenses 2,825,541 18,388,084 8,728,326 6,247,325 7,755,269 Deposits 6,143,357 147,000 16,027,360 1,587,360 1,871,560 Restricted cash - 1,000,000 9,000,000 3,000,000 11,000,000 Total current assets 729,240,319 441,433,975 319,677,508 218,280,050 207,412,111 Noncurrent assets
Unrestricted cash in Operating Reserve Fund 57,472,293 53,014,000 15,814,000 15,814,000 12,680,000 Restricted cash - - - 7,000,000 -
Deposits 1,193,774 931,164 42,858 41,208 141,208
Loan Receivable 286,472 491,021 500,000 - -
Capital Assets:
Capital assets, net of depreciation 980,478 213,167 154,483 115,816 148,053 Land and Construction-in-progress 9,386,864 9,386,864 8,605,533 - - Total Capital Assets 10,367,342 9,600,031 8,760,016 115,816 148,053 Total noncurrent assets 69,319,881 64,036,216 25,116,874 22,971,024 12,969,261 Total Assets 798,560,200 505,470,191 344,794,382 241,251,074 220,381,372
LIABILITIES
Current liabilities
Accounts payable 5,352,155 4,295,566 2,824,571 3,264,853 2,609,589 Accrued cost of electricity 149,299,510 65,139,135 60,283,371 38,815,244 50,320,296 Accrued payroll and benefits - - - - 573,885
Advances from Grantors 9,052,151 - - - -
Other accrued liabilities 3,523,316 5,930,936 1,631,542 750,185 124,951 Defered revenue 14,963,130 - - - -
User taxes and energy surcharges due to governments 7,444,637 7,404,678 5,846,282 3,857,146 4,200,717 Lease Liability 708,615 - - - -
Security deposits from energy suppliers 4,328,798 2,245,100 25,865,000 6,838,122 70,000 Loans payable - - - - -
Total current liabilities 194,672,312 85,015,415 96,450,766 53,525,550 57,899,438 Noncurrent liabilities
Supplier security deposits 3,600,000 4,787,500 - - -
Lease Liability 708,615 - - - -
Total liabilities 198,272,312 89,802,915 96,450,766 53,525,550 57,899,438
DEFERRED INFLOWS OF RESOURCES
Operating Reserve Fund 79,916,987 53,014,000 15,814,000 15,814,000 12,680,000
NET POSITION
Investment in capital assets 9,658,727 - 115,816 - 148,053 Restricted for line of credit collateral - - 10,000,000 - 11,000,000 Unrestricted 510,712,174 362,653,276 232,529,616 161,795,708 138,653,881 Total net position 520,370,901 362,653,276 232,529,616 171,911,524 149,801,934 Attachment Staff Report Item 17R
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Investment Fund program operated by the California State Treasury, United States Treasury obligations, Federal Agency Securities, commercial paper, money market funds and FDIC insured placement service deposits.
Other Liquidity Sources. In October of 2022, Ava terminated its $80,000,000 revolving credit agreement with Barclays Bank and entered into a new agreement with Union Bank (now acquired by US Bank). The new agreement is $200,000,000 and enhances Ava’s overall liquidity for potential working capital needs and collateral requirements. This agreement terminates in October 2025. Ava has solicited various banks to renew or replace the facility before the termination date. It is expected that the capacity will be similar or may be increased given the growth in Ava’s service territory. Ava has not drawn on the facility but has $40 million of the facility utilized at this time for collateral purposes that enable energy procurement with counterparties and the CAISO to serve load Credit Rating. In December of 2021, Ava received an “A stable” investment grade credit rating by S&P Rating Services and the rating was affirmed by S&P in 2024.
Attachment Staff Report Item 17R