Notwithstanding the foregoing, Seller acknowledges that the CAISO will issue additional invoices reflecting CAISO adjustments to such CAISO charges. Buyer shall review, validate, and if requested by Seller under paragraph (e) below, dispute any charges that are the responsibility of Seller in a timely manner and consistent with Buyer’s existing settlement processes for charges that are Buyer’s responsibilities. Subject to Seller’s right to dispute and to have Buyer pursue the dispute of any such invoices, Seller shall pay the amount of CAISO Charges Invoices within ten (10) Business Days of Seller’s receipt of the CAISO Charges Invoice. If Seller fails to pay such CAISO Charges Invoice within that period, Buyer may net or offset any amounts owing to it for such CAISO Charges Invoices against any future amounts it may owe to Seller under this Agreement. The obligations under this Section with respect to payment of CAISO Charges Invoices shall survive the expiration or termination of this Agreement. (e) Dispute Costs. Buyer (as the Facility’s SC) may be required by Seller to dispute CAISO settlements in respect of the Facility. Seller agrees to pay Buyer’s costs and expenses (including reasonable attorneys’ fees) associated with its involvement with such CAISO disputes to the extent they relate to CAISO charges payable by Seller with respect to the Facility that Seller has directed Buyer to dispute.
(f) Terminating Buyer’s Designation as Scheduling Coordinator. At least thirty (30) days prior to expiration of this Agreement or as soon as reasonably practicable upon an earlier termination of this Agreement, the Parties will take all actions necessary to terminate the designation of Buyer as Scheduling Coordinator for the Facility as of 11:59 p.m. on such expiration date.
(g) Master Data File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for the Facility consistent with this Agreement. Neither Party shall change such data without the other Party’s prior written consent. (h) NERC Reliability Standards. Buyer (as Scheduling Coordinator) shall cooperate reasonably with Seller to the extent necessary to enable Seller to comply, and for Seller to demonstrate Seller’s compliance with, NERC reliability standards. This cooperation shall include Agenda Page 476 of 570
Exhibit D
- 3
the provision of information in Buyer’s possession that Buyer (as Scheduling Coordinator) has provided to the CAISO related to the Facility or actions taken by Buyer (as Scheduling Coordinator) related to Seller’s compliance with NERC reliability standards. (i) SQMD Reporting. If Seller elects to submit a SQMD Plan for the Facility, then for any time period covered by the CAISO-approved SQMD Plan, Seller shall provide or cause to be provided to Buyer (or Buyer’s designee including any Buyer Scheduling Coordinator) with respect to the Facility Meters, Settlement Quality Meter Data no later than six (6) Business Days after the relevant flow date. In connection with any SQMD Plan or designation of the Facility as a Scheduling Coordinator Metered Entity (as defined in the CAISO Tariff), Buyer (as Scheduling Coordinator) shall reasonably cooperate with Seller in the SQMD Plan submission and approval process and perform the obligations required by the SQMD Plan or the CAISO applicable to Scheduling Coordinators with respect to submitting Settlement Quality Meter Data to the CAISO including without limitation submitting required affirmations and attestations (if any). Buyer (as Scheduling Coordinator) shall be responsible for submitting Settlement Quality Meter Data to the CAISO using the MRI-S System (or any alternate system designated by the CAISO) in accordance with the SQMD Plan and the CAISO Tariff; provided, Seller shall indemnify Buyer against any costs or penalties imposed on Buyer as a result of Seller’s failure to provide or have provided Settlement Quality Meter Data consistent with the SQMD Plan to Buyer (or Buyer’s designee including any Buyer Scheduling Coordinator), with respect to the Facility Meters within the timeframe required by this Section (i).
Agenda Page 477 of 570
Exhibit E - 1
EXHIBIT E
PROGRESS REPORTING FORM
Each Progress Report must include the following items:
1. Executive Summary.
2. Facility description.
3. Site plan of the Facility.
4. Description of any material planned changes to the Facility or the Site.
5. Gantt chart schedule showing progress on achieving each of the Milestones.
6. Summary of activities during the previous calendar quarter or month, as applicable, including any OSHA labor hour reports.
7. Forecast of activities scheduled for the current calendar quarter.
8. Written description about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones.
9. List of issues that are reasonably likely to affect Seller’s Milestones.
10. A status report of start-up activities including a forecast of activities ongoing and after start-up, a report on Facility performance including performance projections for the next twelve (12) months.
11. Progress and schedule of all material agreements, contracts, permits (including Material Permits), approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.
12. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services.
13. Workforce Development or Supplier Diversity Reporting (if applicable). Format to be provided by Buyer.
14. Any other documentation reasonably requested by Buyer.
Agenda Page 478 of 570
Exhibit F - 1
EXHIBIT F-1
FORM OF MONTHLY EXPECTED AVAILABLE CAPACITY REPORT
[MW Per Hour] – [Insert Month]
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert additional rows for each day in the month]
Day
29 Day
30 Day
31 The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
Agenda Page 479 of 570
Exhibit D
- 2
EXHIBIT F-2
FORM OF MONTHLY EXPECTED STORAGE CAPABILITY REPORT
[Stored Energy Capability, MWh Per Hour] – [Insert Month] 1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert additional rows for each day in the month]
Day
29 Day
30 Day
31 The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
Agenda Page 480 of 570
Exhibit G - 1
EXHIBIT G
FORM OF DAILY AVAILABILITY NOTICE
Trading Day:
Station: Issued By:
Unit: Issued At:
Unit 100% Available No Restrictions:
Hour Ending Available Capacity Storage Capability Comments (MW) (MWh)
1:00
2:00
3:00
4:00
5:00
6:00
7:00
8:00
9:00
10:00
11:00
12:00
13:00
14:00
15:00
16:00
17:00
18:00
19:00
20:00
21:00
22:00
23:00
0:00
Comments:
Agenda Page 481 of 570
Exhibit H - 1
EXHIBIT H
FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by _______[licensed professional engineer] (“Engineer”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Agreement dated _______ (“Agreement”) by and between [Seller] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
As of _______[DATE]_____, Engineer hereby certifies and represents to Buyer the following:
1. The Facility is fully operational, reliable and interconnected, fully integrated and synchronized with the Transmission System.
2. Seller has installed equipment for the Facility with an Installed Capacity of no less than ninety-five percent (95%) of the Guaranteed Capacity.
3. The Facility’s Installed Capacity is no less than ninety-five percent (95%) of the Guaranteed Capacity and the Facility is capable of charging, storing and discharging Energy, all within the operational constraints and subject to the applicable Operating Restrictions.
4. Authorization to parallel the Facility was obtained by the Transmission Provider, [Name of Transmission Provider as appropriate] on___[DATE]____.
5. The Transmission Provider has provided documentation supporting full unrestricted release for Commercial Operation by [Name of Transmission Provider as appropriate] on _______[DATE]_____.
6. The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff on _______[DATE]_____.
7. Seller has segregated and separately metered Station Use (and, if applicable pursuant to the Agreement, Auxiliary Use) to the extent reasonably possible in accordance with Prudent Operating Practice, and any such meter(s) have the same or greater level of accuracy as is required for CAISO certified meters used for settlement purposes.
8. The Storage Facility and its meters have been designed and installed in a manner such that all Energy used for Station Use (and, if applicable pursuant to the Agreement, Auxiliary Use) within the Facility is metered.
EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
Agenda Page 482 of 570
Exhibit H - 2
By:
Its:
Date:
Agenda Page 483 of 570
Exhibit I - 1
EXHIBIT I
FORM OF CAPACITY TEST CERTIFICATE
This certification (“Certification”) of Capacity Test results is delivered by [licensed professional engineer] (“Engineer”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Agreement dated __________ (“Agreement”) by and between [SELLER ENTITY] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
I hereby certify that a Capacity Test conducted on [Date] demonstrated (i) an [Installed or Effective] Capacity of __ MW AC to the Delivery Point at eight (8) hours of continuous discharge, (ii) a Battery Charging Factor of __%, (iii) a Battery Discharging Factor of __%, and (iv) an Efficiency Rate of __%, all in accordance with the testing procedures, requirements and protocols set forth in Section 4.9 and Exhibit O.
EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:
Its:
Date:
Agenda Page 484 of 570
Exhibit J - 1
EXHIBIT J
FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by [SELLER ENTITY] (“Seller”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Seller hereby certifies and represents to Buyer the following:
(1) Construction Start (as defined in Exhibit B of the Agreement) has occurred, and a copy of the notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto.
(2) the Construction Start Date occurred on _____________ (the “Construction Start Date”); and
(3) the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site:
_____________________________________________________________________ (such description shall amend the description of the Site in Exhibit A of the Agreement).
IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:
Its:
Date:
Agenda Page 485 of 570
Exhibit K - 1
EXHIBIT K
FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date:
Bank Ref.:
Amount: US$[XXXXXXXX]
Beneficiary:
Clean Power Alliance of Southern California,
a California joint powers authority
801 S Grand, Suite 400
Los Angeles, CA 90017
Ladies and Gentlemen:
By the order of NextEra Energy Capital Holdings, Inc. on behalf of [name of NextEra project company], 700 Universe Blvd, Juno Beach, Florida 33408 (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of Clean Power Alliance of Southern California, a California joint powers authority (“Beneficiary”), 801 S Grand, Suite 400, Los Angeles, CA 90017, for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100) (the “Available Amount”), pursuant to that certain Energy Storage Agreement dated as of ______ and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall be of no further force or effect at 5:00 p.m., California time, on [Date] or, if such day is not a Business Day (as hereinafter defined), on the next Business Day (as may be extended pursuant to the terms of this Letter of Credit, the “Expiration Date”).
For the purposes hereof, “Business Day” shall mean any day on which commercial banks are not authorized or required to close in Los Angeles, California.
Funds under this Letter of Credit are available to Beneficiary by valid presentation on or before 5:00 p.m. California time, on or before the Expiration Date of a copy of this Letter of Credit No. [XXXXXXX] and all amendments accompanied by Beneficiary’s dated statement purportedly signed by Beneficiary’s duly authorized officer, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein.
Any full or partial drawing hereunder may be requested by transmitting copies of the requisite Agenda Page 486 of 570
documents as described above to the Issuer by facsimile at [facsimile number for draws] or such other number as specified from time-to-time by the Issuer.
The facsimile transmittal shall be deemed delivered when received. Drawings made by facsimile transmittal are deemed to be the operative instrument without the need of originally signed documents.
Issuer hereby agrees that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to the Issuer before the Expiration Date. All correspondence and any drawings (other than those made by facsimile) hereunder are to be directed to [Issuer address/contact]. Issuer undertakes to make payment to Beneficiary under this Standby Letter of Credit within three (3) business days of receipt by Issuer of a properly presented Drawing Certificate. The Beneficiary shall receive payment from Issuer by wire transfer to the bank account of the Beneficiary designated in the Drawing Certificate.
Partial draws are permitted under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance; provided, the Available Amount shall be reduced by the amount of each such drawing.
It is a condition of this Letter of Credit that it shall be deemed automatically extended without an amendment for a one year period (or, if such period ends on a day that is not a Business Day, until the next Business Day thereafter) beginning on the present Expiration Date hereof and upon each anniversary for such date (or, if such period ends on a day that is not a Business Day, until the next Business Day thereafter), unless at least one hundred twenty (120) days prior to any such Expiration Date Issuer has sent Beneficiary written notice by overnight courier service at the address provided below that Issuer elects not to extend this Letter of Credit, in which case it will expire on its then current Expiration Date. No presentation made under this Letter of Credit after such Expiration Date will be honored.
Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements, this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder.
Except so far as otherwise stated, this Letter of Credit is subject to the International Standby Practices ISP98 (also known as ICC Publication No. 590), or revision currently in effect (the “ISP”). As to matters not covered by the ISP, the laws of the State of California, without regard to the principles of conflicts of laws thereunder, shall govern all matters with respect to this Letter of Credit.
Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available.
All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: Clean Power Alliance of Southern California, a California joint powers authority, Chief Financial Officer, 801 S Grand, Suite 400, Los Angeles, Agenda Page 487 of 570
CA 90017. Only notices to Beneficiary meeting the requirements of this paragraph shall be considered valid. Any notice to Beneficiary which is not in accordance with this paragraph shall be void and of no force or effect.
[Bank Name]
___________________________
[Insert officer name]
[Insert officer title]
Agenda Page 488 of 570
EXHIBIT A
(DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD)
Drawing Certificate
[Insert Bank Name and Address]
Ladies and Gentlemen:
The undersigned, a duly authorized officer of [ ], [ADDRESS], as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of __________ (the “Applicant”), hereby certifies to the Bank as follows:
1. Applicant and Beneficiary are party to that certain Energy Storage Agreement dated as of ___________, 20__ (the “Agreement”).
2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) has occurred.
or
Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because Applicant is required to maintain the Letter of Credit in force and effect beyond the expiration date of the Letter of Credit but has failed to provide Beneficiary with a replacement Letter of Credit or other acceptable instrument within thirty (30) days prior to such expiration date.
3. The undersigned is a duly authorized representative of [ ] and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary.
You are hereby directed to make payment of the requested amount to [ ] by wire transfer in immediately available funds to the following account:
[Specify account information]
[ ]
_______________________________
Name and Title of Authorized Representative
Date___________________________
Agenda Page 489 of 570
Exhibit K - 5
EXHIBIT L
INTENTIONALLY OMITTED
Agenda Page 490 of 570
Exhibit M - 1
EXHIBIT M
FORM OF REPLACEMENT RA NOTICE
This Replacement RA Notice (this “Notice”) is delivered by [SELLER ENTITY] (“Seller”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Notice but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Pursuant to Section 3.5 of the Agreement, Seller hereby provides the below Replacement RA product information:
Agenda Page 491 of 570
Exhibit M - 2
[SELLER ENTITY]
By:
Its:
Date:
Agenda Page 492 of 570
Exhibit N - 1
EXHIBIT N
NOTICES
Desert Sands Energy Storage I, LLC
(“Seller”)
CLEAN POWER ALLIANCE OF
SOUTHERN CALIFORNIA, a California
joint powers authority (“Buyer”)
All Notices:
Street: 700 Universe Blvd.
City: Juno Beach, FL 33408
Attn: Business Management
Phone: (561) 691-2816
Facsimile:
Email: [email protected],
[email protected]
All Notices:
Street: 801 S Grand, Suite 400
City: Los Angeles, CA 90017
Attn: Chief Executive Officer
Phone: (213) 269-5870
E-mail: [email protected]
Reference Numbers:
Duns:
Federal Tax ID Number:
Reference Numbers:
Duns:
Federal Tax ID Number:
Invoices:
Attn: Business Management, Aileen Yeung
Phone: (561) 691-2816
Facsimile:
E-mail: [email protected],
[email protected]
Invoices:
Attn: CPA Settlements
Phone: (213) 269-5870
E-mail: [email protected]
Scheduling: [TBD]
Attn:
Phone:
Facsimile:
Email:
Scheduling:
Attn: Day Ahead Scheduling
Phone: (817) 303-1104
Email: [email protected]
Confirmations: [TBD]
Attn:
Phone:
Facsimile:
Email:
Confirmations:
Attn: Vice President, Power Supply
Email:[email protected]
g
Payments:
Attn: Business Management, Aileen Yeung
Phone: (561) 691-2816
Facsimile:
E-mail: [email protected],
[email protected]
Payments:
Attn: Vice President, Power Supply
E-mail: [email protected]
Agenda Page 493 of 570
Exhibit N - 2
Desert Sands Energy Storage I, LLC
(“Seller”)
CLEAN POWER ALLIANCE OF
SOUTHERN CALIFORNIA, a California
joint powers authority (“Buyer”)
Wire Transfer:
BNK: [TBD]
ABA: [TBD]
ACCT:[TBD]
Wire Transfer:
BNK: River City Bank
ABA: 121133416
ACCT:
Agenda Page 494 of 570
Exhibit P - 1
EXHIBIT O
CAPACITY TESTS
Capacity Test Notice and Frequency
A. Commercial Operation Capacity Test(s). Upon no less than ten (10) Business Days prior Notice to Buyer, Seller shall schedule and complete a Commercial Operation Capacity Test prior to the Commercial Operation Date. Such initial Commercial Operation Capacity Test (and any subsequent Commercial Operation Capacity Test permitted in accordance with Exhibit B) shall be performed in accordance with this Exhibit O and shall establish the Installed Capacity and initial Efficiency Rate hereunder based on the actual capacity and capabilities of the Facility determined by such Commercial Operation Capacity Test(s).
B. Subsequent Capacity Tests. Following the Commercial Operation Capacity Test(s), at least fifteen (15) days in advance of the start of each Contract Year, upon no less than ten (10) Business Days prior Notice to Buyer, Seller shall schedule and complete a Capacity Test. In addition, Buyer shall have the right to require a retest of the Capacity Test at any time upon no less than five (5) Business Days prior Notice to Seller if Buyer provides data with such Notice reasonably indicating that the then-current Effective Capacity has varied materially from the results of the most recent prior Capacity Test. Seller shall have the right to run a retest of any Capacity Test at any time upon five (5) Business Days’ prior Notice to Buyer (or any shorter period reasonably acceptable to Buyer consistent with Prudent Operating Practice).
C. Test Results and Re-Setting of Effective Capacity. No later than five (5) days following any Capacity Test, Seller shall submit a testing report detailing results and findings of the test. The report shall include Facility Meter readings and plant log sheets verifying the operating conditions and output of the Facility. In accordance with Section 4.4(a)(ii) of the Agreement and Part II(I) below, after the Commercial Operation Capacity Test(s), the Effective Capacity (up to, but not in excess of, the Installed Capacity) determined pursuant to such Capacity Test shall become the new Effective Capacity at the beginning of the day following the completion of the test for calculating the Storage Rate and all other purposes under this Agreement.
Capacity Test Procedures
PART I. GENERAL.
A. Each Capacity Test shall be conducted in accordance with Prudent Operating Practices, the Operating Restrictions, and the provisions of this Exhibit O. For ease of reference, a Capacity Test is sometimes referred to in this Exhibit O as a “CT”.
Buyer or its representative may be present for the CT and may, for informational purposes only, use its own metering equipment (at Buyer’s sole cost).
B. Conditions Prior to Testing.
(1) EMS Functionality. The EMS shall be successfully configured to receive data from the Battery Management System (BMS), exchange DNP3 data Agenda Page 495 of 570
Exhibit P - 2
with the Buyer SCADA device, and transfer data to the database server for the calculation, recording and archiving of data points. (2) Communications. The Remote Terminal Unit (RTU) testing should be successfully completed prior to any testing. The interface between Seller’s RTU and the SCADA System should be fully tested and functional prior to starting any testing, including verification of the data transmission pathway between Seller’s RTU and Seller’s EMS interface and the ability to record SCADA System data.
(3) Commissioning Checklist. Commissioning shall be successfully completed per manufacturer guidance on all applicable installed Facility equipment, including verification that all controls, set points, and instruments of the EMS are configured.
PART II. REQUIREMENTS APPLICABLE TO ALL CAPACITY TESTS.
A. Test Elements. Each CT shall include at least the following individual test elements, which must be conducted in the order prescribed in Part III of this Exhibit O, unless the Parties mutually agree to deviations therefrom. The Parties acknowledge and agree that should Seller fall short of demonstrating one or more of the Test Elements as specified below, the Test will still be deemed “complete,” and any adjustments necessary to the Effective Capacity resulting from such Test, if applicable, will be made in accordance with this Exhibit O. (1) Electrical output at maximum discharging level (MW) for eight (8) continuous hours; and
(2) Electrical input at maximum charging level at the Facility Meter (MW), as sustained until the SOC reaches at least 90%, continued by the electrical input at a rate up to the maximum charging level at the Facility Meter (MW), as sustained until the SOC reaches 100%.
B. Parameters. During each CT, the following parameters shall be measured and recorded simultaneously for the Facility, at two (2) second intervals:
(1) Time;
(2) The amount of Facility Energy delivered to the Facility Meter (kWh) (i.e., to each measurement device making up the Facility Meter); (3) Net electrical energy input from the Facility Meter (kWh) (i.e., from each measurement device making up the Facility Meter);
(4) Stored Energy Level (MWh).
C. Intentionally Omitted.
Agenda Page 496 of 570
Exhibit P - 2
D. Test Showing. Each CT shall record and report the following datapoints:
(1) That the CT successfully started;
(2) The maximum sustained discharging level for four (4) consecutive hours pursuant to A(1) above;
(3) The maximum sustained charging level for four (4) consecutive hours pursuant to A(2) above;
(4) Amount of time between the Facility’s electrical output going from 0 to the maximum sustained discharging level registered during the CT (for purposes of calculating the ramp rate);
(5) Amount of time between the Facility’s electrical input going from 0 to the maximum sustained charging level registered during the CT (for purposes of calculating the ramp rate);
(6) Amount of Charging Energy and Energy In to go from 0% SOC to 100% SOC;
(7) Amount of Facility Energy and Energy Out to go from 100% SOC to 0% SOC.
E. Test Conditions.
(1) General. At all times during a CT, the Facility shall be operated in compliance with Prudent Operating Practices, the Operating Restrictions, and all operating protocols recommended, required or established by the manufacturer for the Facility.
(2) Abnormal Conditions. If abnormal operating conditions that prevent the testing or recordation of any required parameter occur during a CT, Seller may postpone or reschedule all or part of such CT in accordance with Part II.F below.
(3) Instrumentation and Metering. Seller shall provide all instrumentation, metering and data collection equipment required to perform the CT. The instrumentation, metering and data collection equipment electrical meters shall be calibrated in accordance with Prudent Operating Practice and, as applicable, the CAISO Tariff.
F. Incomplete Test. If any CT is not completed in accordance herewith, Buyer may in its sole discretion: (i) accept the results up to the time the CT stopped without any modification to the Effective Capacity pursuant to Section I below; (ii) require that the portion of the CT not completed, be completed within a reasonable specified time period; or (iii) require that the CT be entirely repeated within a reasonable specified time period. Notwithstanding the above, if Seller is unable to complete a Agenda Page 497 of 570
Exhibit P - 2
CT due to a Force Majeure Event or the actions or inactions of Buyer or the CAISO or the Transmission Provider, Seller shall be permitted to reconduct such CT on dates and at times reasonably acceptable to the Parties.
G. Test Report. Within five (5) Business Days after the completion of any CT, Seller shall prepare and submit to Buyer a written report of the results of the CT, which report shall include:
(1) A record of the personnel present during the CT that served in an operating, testing, monitoring or other such participatory role; (2) The measured and calculated data for each parameter set forth in Part II.A through D, including copies of the raw data taken during the test; and (3) Seller’s statement of either Seller’s acceptance of the CT or Seller’s rejection of the CT results and reason(s) therefor.
Within five (5) Business Days after receipt of such report, Buyer shall notify Seller in writing of either Buyer’s acceptance of the CT results or Buyer’s rejection of the CT and reason(s) therefor.
If either Party rejects the results of any CT, such CT shall be repeated in accordance with Part II.F.
H. [Intentionally Omitted]
I. Adjustment to Effective Capacity. The Effective Capacity shall be updated in accordance with Part III Test Results below as of the date of the test in Part III is completed:
PART III. CAPACITY TEST PROTOCOL.
A. Effective Capacity and Initial Efficiency Rate Test
• Procedure:
(1) System Starting State: The Facility will be in the on-line state at 0% SOC. (2) Record the initial value of the SOC.
(3) Command a real power charge that results in an AC power of Facility’s maximum charging level, and continue charging until the Facility has reached 100% SOC.
(4) Record and store the SOC after the earlier of (a) the Facility has reached 100% SOC or (b) time elapsed equals eight (8) hours divided by the Guaranteed Efficiency Rate, plus thirty (30) minutes of continuous Agenda Page 498 of 570
Exhibit P - 2
charging. Such data point shall be used for purposes of calculation of the Battery Charging Factor.
(5) Record and store the AC Energy In.
(6) Following an agreed-upon rest period, command a real power discharge that results in an AC power output of the Facility’s maximum discharging level and maintain the discharging state until the earlier of (a) the Facility has discharged at the maximum discharging level for eight (8) consecutive hours, (b) the Facility has reached 0% SOC, or (c) the sustained discharging level is at least 2% less than the maximum discharging level. (7) Record and store the SOC after eight (8) hours of continuous discharging.
Such data point shall be used for purposes of calculation of the Battery Discharging Factor. If the Facility SOC remains above zero percent (0%) after discharging at a rate at or above the Guaranteed Capacity (or at or above the Installed Capacity after a Commercial Operation Capacity Test) for eight (8) consecutive hours pursuant to Part III.A.6(a), the SOC will be deemed 0 for the purposes of calculating the Battery Discharging Factor. (8) Record and store the Facility Energy as measured at the Facility Meter.
Such data point shall be used for purposes of calculation of the Effective Capacity.
(9) If the Facility has not reached 0% SOC pursuant to Section III.A.6, continue discharging the Facility until it reaches a 0% SOC. (10) Record and store the Facility Energy (in MWh) as measured at the Facility Meter, if applicable.
(11) Record and store the Energy Out from the commencement of discharging pursuant to Part III.A.5 until the Facility has reached a 0% SOC pursuant to either Part III.A.6 or Part III.A.9, as applicable.
• Test Results
(1) The resulting Effective Capacity measurement is the sum of the total Facility Energy at the Facility Meter divided by eight (8) hours. (2) The resulting initial Efficiency Rate is calculated as the total amount of Energy Out (as reported under Section III.A(11) above) divided by the total amount of Energy In (as reported under Section III.A(5) above), and expressed as a percentage, and shall be used for the calculation of the Efficiency Rate Factor in Exhibit C until updated following the first month of operations.
B. AGC Discharge Test
Agenda Page 499 of 570
Exhibit P - 2
• Purpose: This test will demonstrate the AGC discharge capability to achieve the Facility’s maximum discharging level within 25 seconds. • System starting state: The Facility will be in the on-line state at 50% SOC and at an initial active power level of 0 MW and reactive power level of 0 MVAR. The EMS will be configured to follow a predefined agreed-upon active power profile. • Procedure:
(1) Record the Facility active power level at the Facility Meter. (2) Command the Facility to follow a simulated CAISO RIG signal of Pmax at .95 power factor for ten (10) minutes.
(3) Record and store the Facility active power response (in seconds). • System end state: The Facility will be in the on-line state and at a commanded active power level of 0 MW.
C. AGC Charge Test
• Purpose: This test will demonstrate the AGC charge capability to achieve the Facility’s full charging level within 25 seconds.
• System starting state: The Facility will be in the on-line state at 50% SOC and at an initial active power level of 0 MW and reactive power level of 0 MVAR. The Facility control system will be configured to follow a predefined agreed-upon active power profile.
• Procedure:
(1) Record the Facility active power level at the Facility Meter. (2) Command the Facility to follow a simulated CAISO RIG signal of -Pmax at .95 power factor for ten (10) minutes.
(3) Record and store the Facility active power response (in seconds). • System end state: The Facility will be in the on-line state and at a commanded active power level of 0 MW.
D. Reactive Power Production Test
• Purpose: This test will demonstrate the reactive power production capability of the Facility.
• System starting state: The Facility will be in the on-line state at 50% SOC and at an initial active power level of 0 MW and reactive power level of 0 MVAR. The EMS will be configured to follow an agreed-upon predefined reactive power profile. • Procedure:
(1) Record the Facility reactive power level at the Facility Meter.
Agenda Page 500 of 570
Exhibit P - 2
(2) Command the Facility to follow thirty-seven and five-tenths (37.5) MVAR for ten (10) minutes.
(3) Record and store the Facility reactive power response. • System end state: The Facility will be in the on-line state and at a commanded reactive power level of 0 MVAR.
E. Reactive Power Consumption Test
• Purpose: This test will demonstrate the reactive power consumption capability of the Facility.
• System starting state: The Facility will be in the on-line state at 50% SOC and at an initial active power level of 0 MW and reactive power level of 0 MVAR. The Facility control system will be configured to follow an agreed-upon predefined reactive power profile.
• Procedure:
(1) Record the Facility reactive power level at the Facility Meter. (2) Command the Facility to follow thirty-seven and five-tenths (37.5) MVAR for ten (10) minutes.
(3) Record and store the Facility reactive power response.
System end state: The Facility will be in the on-line state and at a commanded reactive power level of 0 MVAR.
Agenda Page 501 of 570
Exhibit P - 1
EXHIBIT P
ANNUAL CAPACITY AVAILABILITY CALCULATION
(a) Following the end of each calendar month during the Delivery Term Buyer shall calculate the year-to-date (YTD) “Annual Capacity Availability” for the current Contract Year using the formula set forth below:
Annual Capacity Availability (%) = 1 –
Unavailable Calculation Intervals
Total YTD Calculation Intervals
“Calculation Interval” or “C.I.” means each successive five-minute interval, but excluding all such intervals which by the express terms of the Agreement are disregarded or excluded.
“Unavailable Calculation Intervals” means the sum of year-to-date unavailable Calculation Intervals for the applicable Contract Year, where for each Calculation Interval:
“A” is the “Available Effective Capacity”, which shall be the sum of the available capacity, in MW AC, expected from each system inverter (considering the conditions of the Facility in total) to receive Charging Energy from and deliver Facility Energy to the Delivery Point, in such Calculation Interval (based on normal operating conditions pursuant to the manufacturer’s guidelines) but “A” shall never exceed the Effective Capacity.
“Available Storage Capability” means the sum of the following (taking into account the SOC at the time of calculation): (i) the energy throughput capability (in MWhs) in the applicable Calculation Interval that the Facility is available to be charged (calculated as the available battery capability (in MWh) to receive Charging Energy from the Delivery Point in the applicable Calculation Interval x the Battery Charging Factor) and (ii) the energy throughput capability in MWhs in the applicable Calculation Interval that the Facility is available to be discharged to the Delivery Point (calculated as the available battery capability (in MWh) to delivery Facility Energy to the Delivery Point in the applicable Calculation Interval x the Battery Discharging Factor). In calculating Storage Capability, the “available battery charging capability” and “available battery discharging capability” Unavailable
Calculation Interval = 1 C.I. x ( 1 – the lesser of: A
or
Storage
Capability
(MWh)
Effective ) CapacityEffective
Capacity x 8 hrs
Agenda Page 502 of 570
Exhibit P - 2
are calculated as the product of (1) the count of available system cells in such Calculation Interval, multiplied by (2) the capability, in MWh, expected from each such system cell (based on normal operating conditions pursuant to the manufacturer’s guidelines) that are able (considering the conditions of the Facility in total) to receive Charging Energy from and deliver Facility Energy to the Delivery Point), but Storage Capability shall never exceed the Effective Capacity x eight (8) hours.
“Total YTD Calculation Intervals” means, for each applicable Contract Year, the total number of Calculation Intervals year-to-date up through and including the month for which the Annual Storage Capacity Availability is being calculated. (b) The Available Effective Capacity and Available Storage Capability in the above calculations shall be the lower of (i) such amounts reported by Seller’s real-time EMS data feed to Buyer for the Facility for such Calculation Interval, and (ii) Seller’s most recent Availability Notice (as updated pursuant to Section 4.10), provided that any such revised Availability Notice indicating the Facility’s availability (both mechanically and for purposes of market participation) for the applicable Calculation Interval is submitted by Seller at least sixty (60) minutes prior to the time the Buyer is required to schedule or bid the Storage Facility in the Real-Time Market. Except as otherwise expressly provided in this Agreement, the calculations of Available Effective Capacity and Available Storage Capability in the foregoing shall be based solely on the availability of the Facility to charge or discharge Energy between the Facility and the Delivery Point, as applicable (excluding for reasons at the high-voltage side of the Delivery Point or beyond). Any Calculation Interval in which the Facility fails to respond due to the failure of the Facility’s telemetry to maintain connectivity to the CAISO (except to the extent caused by the CAISO) such that it cannot receive ADS or AGC signals shall be deemed an Unavailable Calculation Interval; provided, any such Calculation Interval shall not be deemed an Unavailable Calculation Interval if the Facility does respond with respect to such Calculation Interval as directed by Buyer, Buyer’s Scheduling Coordinator or the CAISO via telephone, email, or some other means. (c) If the total rated power of the Facility inverters is less than the Installed Capacity divided by 0.95 charging and divided by 0.95 discharging expressed in kVA at 45°C, then Buyer shall have the right, in its reasonable discretion, to apply an ambient air temperature availability derate to the applicable Calculation Interval.
Agenda Page 503 of 570
Agenda Page 504 of 570
Exhibit R - 1
EXHIBIT R
METERING DIAGRAM
To be updated by Seller prior to Commercial Operation Date Agenda Page 505 of 570
Exhibit S – 1
EXHIBIT S
FORM OF GUARANTY
This Guaranty (this “Guaranty”) is entered into as of [_____] (the “Effective Date”) by and between NextEra Energy Capital Holdings, Inc., a Delaware corporation (“Guarantor”), and Clean Power Alliance of Southern California, a California joint powers authority (together with its successors and permitted assigns, “Buyer”).
Recitals
A. Buyer and [SELLER ENTITY], a Delaware limited liability company (“Seller”), entered into that certain Energy Storage Agreement (as amended, restated or otherwise modified from time to time, the “ESA”) dated as of [____], 2023.
B. Guarantor is entering into this Guaranty as Performance Security to secure Seller’s obligations under the ESA, as required by Section 8.8 of the ESA.
C. It is in the best interest of Guarantor to execute this Guaranty inasmuch as Guarantor will derive substantial direct and indirect benefits from the execution and delivery of the ESA.
D. Initially capitalized terms used but not defined herein have the meaning set forth in the ESA.
Agreement
1. Guaranty. For value received, and subject to the terms and conditions hereof, Guarantor does hereby unconditionally, absolutely and irrevocably guarantee, as primary obligor and not as a surety, to Buyer the prompt payment by Seller of any and all amounts and payment obligations now or hereafter owing from Seller to Buyer under the ESA, including, without limitation, compensation for penalties, the Termination Payment, indemnification payments or other damages, as and when required pursuant to the terms of the ESA (the “Guaranteed Amount”), provided, that Guarantor’s aggregate liability under or arising out of this Guaranty shall not exceed ________ Dollars ($___________). The Parties understand and agree that any payment by Guarantor or Seller of any portion of the Guaranteed Amount shall thereafter reduce Guarantor’s maximum aggregate liability hereunder on a dollar-for-dollar basis. This Guaranty is an irrevocable, absolute, unconditional and continuing guarantee of the full and punctual payment, and not of collection, of the Guaranteed Amount and, except as otherwise expressly addressed herein, is in no way conditioned upon any requirement that Buyer first attempt to collect the payment of the Guaranteed Amount from Seller, any other guarantor of the Guaranteed Amount or any other Person or entity or resort to any other means of obtaining payment of the Guaranteed Amount. In the event Seller shall fail to duly, completely or punctually pay any Guaranteed Amount as required pursuant to the ESA, Guarantor shall promptly pay such amount as required herein.
2. Demand Notice. For avoidance of doubt, a payment shall be due for purposes of this Guaranty only when and if a payment is due and payable by Seller to Buyer under the terms and conditions of the Agreement. If Seller fails to pay any Guaranteed Amount as required pursuant to the ESA for five (5) Business Days following Seller’s receipt of Buyer’s written notice of such failure (the “Demand Notice”), then Buyer may elect to exercise its rights under this Guaranty and may make a demand upon Guarantor (a “Payment Demand”) for such unpaid Guaranteed Amount. A Payment Demand shall be in writing and shall reasonably specify in what manner and what amount Seller has failed to pay and an explanation of why such payment is due and owing, with a specific statement that Buyer is requesting that Guarantor pay under this Guaranty. Guarantor shall, within five (5) Business Days following Agenda Page 506 of 570
Exhibit S – 2
its receipt of the Payment Demand, pay the Guaranteed Amount to Buyer.
3. Scope and Duration of Guaranty. This Guaranty applies only to the Guaranteed Amount.
This Guaranty shall continue in full force and effect from the Effective Date until the earlier of the following: (x) all Guaranteed Amounts have been paid in full (whether directly or indirectly through set-off or netting of amounts owed by Buyer to Seller), and the Delivery Term has expired or terminated early, (y) the date that is twelve (12) months after the last day of the Delivery Term, or (z) replacement Performance Security is provided in an amount and form required by the terms of the ESA. Further, this Guaranty (a) shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of this Guaranty, and (b) subject to the preceding sentence, shall be discharged only by complete performance of the undertakings herein. Without limiting the generality of the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged, or otherwise affected and this Guaranty shall not be invalidated or impaired or otherwise affected for the following reasons:
(i) the extension of time for the payment of any Guaranteed Amount, or (ii) any amendment, modification or other alteration of the ESA, or (iii)any indemnity agreement Seller may have from any party, or (iv)any insurance that may be available to cover any loss, except to the extent insurance proceeds are used to satisfy the Guaranteed Amount, or (v) any voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, Seller or any of its assets, including but not limited to any rejection or other discharge of Seller’s obligations under the ESA imposed by any court, trustee or custodian or any similar official or imposed by any law, statue or regulation, in each such event in any such proceeding, or (vi)the release, modification, waiver or failure to pursue or seek relief with respect to any other guaranty, pledge or security device whatsoever, or (vii) any payment to Buyer by Seller that Buyer subsequently returns to Seller pursuant to court order in any bankruptcy or other debtor-relief proceeding, or (viii) those defenses based upon (A) the legal incapacity or lack of power or authority of any Person, including Seller and any representative of Seller to enter into the ESA or perform its obligations thereunder, (B) lack of due execution, delivery, validity or enforceability, including of the ESA, or (C) Seller’s inability to pay any Guaranteed Amount or perform its obligations under the ESA, or
(ix) any other event or circumstance that may now or hereafter constitute a defense to payment of the Guaranteed Amount, including, without limitation, statute of frauds and accord and satisfaction;
provided that Guarantor reserves the right to assert for itself any defenses, setoffs or counterclaims that Seller is or may be entitled to assert against Buyer (except for such defenses, setoffs or counterclaims that are expressly waived under any provision of this Guaranty) in a subsequent action for recoupment, restitution, or reimbursement.
Agenda Page 507 of 570
Exhibit S – 3
4. Waivers by Guarantor. Guarantor hereby unconditionally waives as a condition precedent to the performance of its obligations hereunder, with the exception of the requirements in Paragraph 2, (a) notice of acceptance, presentment or protest with respect to the Guaranteed Amounts and this Guaranty, (b) notice of any action taken or omitted to be taken by Buyer in reliance hereon, (c) any requirement that Buyer exhaust any right, power or remedy or proceed against Seller under the ESA, and (d) any event, occurrence or other circumstance which might otherwise constitute a legal or equitable discharge of a surety. Without limiting the generality of the foregoing waiver of surety defenses, it is agreed that the occurrence of any one or more of the following shall not affect the liability of Guarantor hereunder:
(i) at any time or from time to time, without notice to Guarantor, the time for payment of any Guaranteed Amount shall be extended, or such performance or compliance shall be waived;
(ii) the obligation to pay any Guaranteed Amount shall be modified, supplemented or amended in any respect in accordance with the terms of the ESA; (iii) subject to Section 10, any (a) sale, transfer or consolidation of Seller into or with any other entity, (b) sale of substantial assets by, or restructuring of the corporate existence of, Seller or (c) change in ownership of any membership interests of, or other ownership interests in, Seller; or
(iv) the failure by Buyer or any other Person to create, preserve, validate, perfect or protect any security interest granted to, or in favor of, Buyer or any Person.
5. Subrogation. Notwithstanding any payments that may be made hereunder by the Guarantor, Guarantor hereby agrees that until the earlier of payment in full of all Guaranteed Amounts or expiration of the Guaranty in accordance with Section 3, it shall not be entitled to, nor shall it seek to, exercise any right or remedy arising by reason of its payment of any Guaranteed Amount under this Guaranty, whether by subrogation or otherwise, against Seller or seek contribution or reimbursement of such payments from Seller.
6. Representations and Warranties. Guarantor hereby represents and warrants that (a) it has all necessary and appropriate corporate or limited liability company powers and authority and the legal right to execute and deliver, and perform its obligations under, this Guaranty, (b) this Guaranty constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting enforcement of creditors’ rights or general principles of equity, (c) the execution, delivery and performance of this Guaranty does not and will not contravene Guarantor’s organizational documents, any applicable Law or any contractual provisions binding on or affecting Guarantor, which would invalidate or materially impair Guarantor’s ability to perform its obligations under this Guaranty, (d) except as disclosed in reports filed with the Securities and Exchange Commission by Guarantor’s parent, NextEra Energy, Inc., there are no actions, suits or proceedings pending before any court, governmental agency or arbitrator, or, to the knowledge of the Guarantor, threatened, against or affecting Guarantor or any of its properties or revenues which may, in any one case or in the aggregate, adversely affect the ability of Guarantor to enter into or perform its obligations under this Guaranty, and (e) no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority, and no consent of any other Person (including, any stockholder or creditor of the Guarantor), that has not heretofore been obtained is required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty by Guarantor.
7. Notices. Notices under this Guaranty shall be deemed received if sent to the address specified Agenda Page 508 of 570
Exhibit S – 4
below: (i) on the day received if served by overnight express delivery, and (ii) four Business Days after mailing if sent by certified, first class mail, return receipt requested. Any party may change its address to which notice is given hereunder by providing notice of the same in accordance with this Paragraph 8.
If delivered to Buyer, to it at [____]
Attn: [____]
If delivered to Guarantor, to it at [____]
Attn: [____]
8. Governing Law and Forum Selection. This Guaranty shall be governed by, and interpreted and construed in accordance with, the laws of the United States and the State of New York, excluding choice of law rules (other than Section 5-1401 and 5-1402 of the New York General Obligations Law), provided that, notwithstanding the foregoing, in no event shall such governing law prevent Buyer from complying with any obligations or from exercising any joint powers authority arising under the laws of the State of California. The Parties agree that any suit, action or other legal proceeding by or against any party (or its affiliates or designees) with respect to or arising out of this Guaranty shall be brought in the federal courts of the United States or the courts of the State of California sitting in the City and County of Los Angeles, California.
9. Miscellaneous. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall inure to the benefit of Buyer and its successors and permitted assigns pursuant to the ESA. No provision of this Guaranty may be amended or waived except by a written instrument executed by Guarantor and Buyer. This Guaranty is not assignable by Guarantor without the prior written consent of Buyer, which consent shall not be unreasonably withheld. This Guaranty is not assignable by Buyer without the prior written consent of Guarantor, which consent shall not be unreasonably withheld, except to the extent that the ESA is assigned in accordance with the terms thereof. No provision of this Guaranty confers, nor is any provision intended to confer, upon any third party (other than Buyer’s successors and permitted assigns) any benefit or right enforceable at the option of that third party. This Guaranty embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings of the parties hereto, verbal or written, relating to the subject matter hereof. If any provision of this Guaranty is determined to be illegal or unenforceable (i) such provision shall be deemed restated in accordance with applicable Laws to reflect, as nearly as possible, the original intention of the parties hereto and (ii) such determination shall not affect any other provision of this Guaranty and all other provisions shall remain in full force and effect. This Guaranty may be executed in any number of separate counterparts, each of which when so executed shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Guaranty may be executed and delivered by electronic means with the same force and effect as if the same was a fully executed and delivered original manual counterpart.
10. WAIVER OF JURY TRIAL; JUDICIAL REFERENCE.
(a) JURY WAIVER. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY
Agenda Page 509 of 570
Exhibit S – 5
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
(b) JUDICIAL REFERENCE. IN THE EVENT ANY LEGAL
PROCEEDING IS FILED IN A FEDERAL COURT OF THE STATE OF
CALIFORNIA, OR, TO THE EXTENT SUCH FEDERAL COURT LACKS
SUBJECT MATTER JURISDICTION, IN A STATE COURT OF THE STATE OF CALIFORNIA (THE “COURT”) BY OR AGAINST ANY PARTY HERETO IN
CONNECTION WITH ANY CONTROVERSY, DISPUTE OR CLAIM
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY)
(EACH, A “CLAIM”) AND THE WAIVER SET FORTH IN THE PRECEDING
PARAGRAPH IS NOT ENFORCEABLE IN SUCH ACTION OR PROCEEDING, THE PARTIES HERETO AGREE AS FOLLOWS:
(i) ANY CLAIM (INCLUDING BUT NOT LIMITED TO ALL DISCOVERY AND
LAW AND MOTION MATTERS, PRETRIAL MOTIONS, TRIAL MATTERS
AND POST-TRIAL MOTIONS) WILL BE DETERMINED BY A GENERAL
REFERENCE PROCEEDING IN ACCORDANCE WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 THROUGH 645.1. THE PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT
TO BE SPECIFICALLY ENFORCEABLE IN ACCORDANCE WITH
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638.
(ii) UPON THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES SHALL
SELECT A SINGLE REFEREE, WHO SHALL BE A RETIRED JUDGE OR JUSTICE. IF THE PARTIES DO NOT AGREE UPON A REFEREE WITHIN TEN (10) DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY MAY
REQUEST THE COURT TO APPOINT A REFEREE PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B).
(iii) THE PARTIES RECOGNIZE AND AGREE THAT ALL CLAIMS RESOLVED
IN A GENERAL REFERENCE PROCEEDING PURSUANT HERETO WILL BE DECIDED BY A REFEREE AND NOT BY A JURY.
[Signature on next page]
Agenda Page 510 of 570
Exhibit S – 6
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized representative on the date first above written.
GUARANTOR:
NEXTERA ENERGY CAPITAL HOLDINGS,
INC.
By:______________________________
Printed Name:__________________
Title:____________________________
BUYER:
[_______]
By:______________________________
Printed Name:__________________
Title:____________________________
By:______________________________
Printed Name:__________________
Title:____________________________
Agenda Page 511 of 570
Exhibit T - 1
EXHIBIT T
FORM OF COLLATERAL ASSIGNMENT AGREEMENT
This Consent to Collateral Assignment Agreement (this “Consent”) is entered into among (i) Clean Power Alliance of Southern California, a California joint powers authority (“CPA”), (ii) [NextEra Entity], a Delaware limited liability company (the “Project Company”), and (iii) [Name of Collateral Agent], a [Legal Status of Collateral Agent], as Collateral Agent for the secured parties under the Financing Documents referred to below (such secured parties together with their successors permitted under this Consent in such capacity, the “Secured Parties”, and, such agent, together with its successors in such capacity, the “Collateral Agent”). CPA, Project Company and Collateral Agent are hereinafter sometimes referred to individually as a “Party” and jointly as the “Parties”.
Capitalized terms used but not otherwise defined in this Consent shall have the meanings ascribed to them in the PPA (as defined below).
RECITALS
The Parties enter into this Consent with reference to the following facts:
A. Project Company and CPA have entered into that certain Energy Storage Agreement, dated as of [Date] [List all amendments as contemplated by Section 3.4] (“ESA”), pursuant to which Project Company will develop, construct, commission, test and operate the Facility and sell the Product to CPA, and CPA will purchase the Product from Project Company; B. As collateral for Project Company’s obligations under the ESA, Project Company has agreed to provide to CPA certain collateral, which may include Performance Security and Development Security and other collateral described in the ESA (collectively, the “ESA Collateral”);
C. Project Company has entered into that certain [Insert description of financing arrangements with Lender], dated as of [Date], among Project Company, the Lenders party thereto and the Collateral Agent (the “Financing Agreement”), pursuant to which, among otherthings, the Lenders have extended commitments to make loans to Project Company; D. As collateral security for Project Company’s obligations under the Financing Agreement and related agreements (collectively, the “Financing Documents”), Project Company has, among other things, assigned all of its right, title and interest in, to and under the ESA and Project’s Company’s owners have pledged their ownership interest in Project Company (collectively, the “Assigned Interest”) to the Collateral Agent pursuant to the Financing Documents; and E. It is a requirement under the Financing Agreement and the ESA that CPA and the other Parties hereto shall have executed and delivered this Consent.
AGREEMENT
In consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Parties hereto hereby agree as follows:
Agenda Page 512 of 570
Exhibit T - 2
SECTION 1. CONSENT TO ASSIGNMENT, ETC.
1.1 Consent and Agreement.
CPA hereby acknowledges:
(a) Notice of and consents to the assignment as collateral security to Collateral Agent, for the benefit of the Secured Parties, of the Assigned Interest; and (b) The right (but not the obligation) of Collateral Agent in the exercise of its rights and remedies under the Financing Documents, to make all demands, give all notices, take all actions and exercise all rights of Project Company permitted under the ESA (subject to CPA’s rights and defenses under the ESA and the terms of this Consent) and accepts any such exercise; provided, insofar as the Collateral Agent exercises any such rights under the ESA or makes any claims with respect to payments or other obligations under the ESA, the terms and conditions of the ESA applicable to such exercise of rights or claims shall apply to Collateral Agent to the same extent as to Project Company.
1.2 Project Company’s and Collateral Agent’s Acknowledgement.
Each of Project Company and Collateral Agent hereby acknowledges and agrees that, following the occurrence of a default by Project Company under the ESA, CPA is authorized to act in accordance with Collateral Agent’s instructions and the terms of this Agreement, and that, other than arising due to the negligence or willful misconduct of CPA, CPA shall bear no liability to Project Company or Collateral Agent under such situation for failing to act in accordance with Project Company’s instructions.
1.3 Right to Cure.
If Project Company defaults in the performance of any of its obligations under the ESA, or upon the occurrence or non-occurrence of any event or condition under the ESA which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable CPA to terminate or suspend its performance under the ESA (a “ESA Default”), CPA will not terminate or suspend its performance under the ESA until it first gives written notice of such ESA Default to Collateral Agent and affords Collateral Agent the right to cure such ESA Default within the applicable cure period under the ESA, which cure period shall run concurrently with that afforded Project Company under the ESA. In addition, if Collateral Agent gives CPA written notice prior to the expiration of the applicable cure period under the ESA of Collateral Agent’s intention to cure such ESA Default (which notice shall include a reasonable description of the time during which it anticipates to cure such ESA Default) and is diligently proceeding to cure such ESA Default, notwithstanding the applicable cure period under the ESA, Collateral Agent shall have a period of sixty (60) days (or, if such ESA Default is for failure by the Project Company to pay an amount to CPA which is due and payable under the ESA other than to provide ESA Collateral, thirty (30) days, or, if such ESA Default is for failure by Project Company to provide ESA Collateral, ten (10) Business Days) from the Collateral Agent’s receipt of the notice of such ESA Default from CPA to cure such ESA Default; provided, (a) if possession of the Facility is necessary to cure any such non-Agenda Page 513 of 570 Exhibit T - 3
monetary ESA Default and Collateral Agent has commenced foreclosure proceedings within sixty (60) days after notice of the ESA Default and is diligently pursuing such foreclosure proceedings, Collateral Agent will be allowed a reasonable time, not to exceed one hundred eighty (180) days after the notice of the ESA Default, to complete such proceedings and cure such ESA Default, and (b) if Collateral Agent is prohibited from curing any such ESA Default by any process, stay or injunction issued by any Governmental Authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving Project Company, then the time periods specified herein for curing a ESA Default shall be extended for the period of such prohibition, so long as Collateral Agent has diligently pursued removal of such process, stay or injunction. Collateral Agent shall provide CPA with reports concerning the status of efforts to cure a ESA Default upon CPA’s reasonable request.
1.4 Substitute Owner.
Subject to Section 1.7, the Parties agree that if Collateral Agent notifies (such notice, a “Financing Document Default Notice”) CPA that an event of default has occurred and is continuing under the Financing Documents (a “Financing Document Event of Default”) then, upon a judicial foreclosure sale, non-judicial foreclosure sale, deed in lieu of foreclosure or other transfer following a Financing Document Event of Default, Collateral Agent (or its designee) shall be substituted for Project Company (the “Substitute Owner”) under the ESA, and, subject to Sections 1.7(b) and 1.7(c) below, CPA and Substitute Owner will recognize each other as counterparties under the ESA and will continue to perform their respective obligations (including those obligations accruing to CPA and the Project Company prior to the existence of the Substitute Owner) under the ESA in favor of each other in accordance with the terms thereof; provided, before CPA is required to recognize the Substitute Owner, the Substitute Owner must have demonstrated to CPA’s reasonable satisfaction that the Substitute Owner meets the qualifications of a Permitted Transferee under the ESA (a “Permitted Transferee”). For purposes of the foregoing, CPA shall be entitled to assume that any such purported exercise of rights by Collateral Agent that results in substitution of a Substitute Owner under the ESA is in accordance with the Financing Documents without independent investigation thereof but shall have the right to require that the Collateral Agent and its designee (if applicable) provide reasonable evidence demonstrating the same.
1.5 Replacement Agreements.
Subject to Section 1.7, if the ESA is terminated, rejected or otherwise invalidated as a result of any bankruptcy, insolvency, reorganization or similar proceeding affecting Project Company, its owner(s) or guarantor(s), and if Collateral Agent or its designee directly or indirectly takes possession of, or title to, the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure) (“Replacement Owner”), CPA shall, and Collateral Agent shall cause Replacement Owner to, enter into a new agreement with one another for the balance of the obligations under the ESA remaining to be performed having terms substantially the same as the terms of the ESA with respect to the remaining Term (“Replacement ESA”); provided, before CPA is required to enter into a Replacement ESA, the Replacement Owner must have demonstrated to CPA’s reasonable satisfaction that the Replacement Owner satisfies the requirements of a Permitted Transferee. For purposes of the foregoing, CPA is entitled to assume that any such purported exercise of rights by Agenda Page 514 of 570
Exhibit T - 4
Collateral Agent that results in a Replacement Owner is in accordance with the Financing Documents without independent investigation thereof but shall have the right to require that the Collateral Agent and its designee (if applicable) provide reasonable evidence demonstrating the same.
Notwithstanding the execution and delivery of a Replacement ESA, to the extent CPA is, or was otherwise prior to its termination as described in this Section 1.5, entitled under the ESA, CPA may suspend performance of its obligations under such Replacement ESA, unless and until all ESA Defaults of Project Company under the ESA or Replacement ESA have been cured.
1.6 Transfer.
Subject to Section 1.7, a Substitute Owner or a Replacement Owner may assign all of its interest in the Facility and the ESA and a Replacement ESA to a natural person, corporation, trust, business trust, joint venture, joint stock company, association, company, limited liability company, partnership, Governmental Authority or other entity (a “Person”) to which the Facility is transferred; provided, the proposed transferee shall have demonstrated to CPA’s reasonable satisfaction that such proposed transferee satisfies the requirements of a Permitted Transferee.
1.7 Assumption of Obligations.
(a) Transferee.
Any transferee under Section 1.6 shall expressly assume in a writing reasonably satisfactory to CPA all of the obligations of Project Company, Substitute Owner or Replacement Owner under the ESA or Replacement ESA, as applicable, including posting and collateral assignment of the ESA Collateral. Upon such assignment and the cure of any outstanding ESA Default, and payment of all other amounts due and payable to CPA in respect of the ESA or such Replacement ESA, the transferor shall be released from any further liability under the ESA or Replacement ESA, as applicable.
(b) Substitute Owner.
Subject to Section 1.7(c), any Substitute Owner pursuant to Section 1.4 shall be required to perform Project Company’s obligations under the ESA, including posting and collateral assignment of the ESA Collateral; provided, the obligations of such Substitute Owner shall be no more than those of Project Company under the ESA.
(c) No Liability.
CPA acknowledges and agrees that neither Collateral Agent nor any Secured Party shall have any liability or obligation under the ESAas a result of this Consent (except to the extentCollateral Agent or a Secured Party is a Substitute Owner or Replacement Owner) nor shall Collateral Agent or any other Secured Party be obligated or required to (i) perform any of Project Company’s obligations under the ESA, except as provided in Sections 1.7(a) and 1.7(b) and to the extent Collateral Agent or a Secured Party is a Substitute Owner or Replacement Owner, or (ii) take any action to collect or enforce any claim for payment assigned under the Financing Documents. If Collateral Agent becomes a Substitute Owner pursuant to Section 1.4 or enters into a Replacement ESA, Collateral Agent shall Agenda Page 515 of 570
Exhibit T - 5
not have any personal liability to CPA under the ESA or Replacement ESA and the sole recourse of CPA in seeking enforcement of such obligations against Collateral Agent shall be to the aggregate interest of the Secured Parties in the Facility; provided, such limited recourse shall not limit CPA’s right to seek equitable or injunctive relief against Collateral Agent, or CPA’s rights with respect to any offset rights expressly allowed under the ESA, a Replacement ESA or the ESA Collateral.
1.8 Delivery of Notices.
CPA shall deliver to Collateral Agent, concurrently with the delivery thereof to Project Company, a copy of each notice, request or demand given by CPA to Project Company pursuant to the ESA relating to (a) a ESA Default by Project Company under the ESA, (b) any claim regarding Force Majeure by CPA under the ESA, (c) any notice of dispute under the ESA, (d) any notice of intent to terminate or any termination notice, and (e) any matter that would require the consent of Collateral Agent pursuant to Section 1.11 or any other provision of this Consent. Collateral Agent acknowledges that delivery of such notice, request and demand shall satisfy CPA’s obligation to give Collateral Agent a notice of ESA Default under Section 1.3. Collateral Agent shall deliver to CPA, concurrently with delivery thereof to Project Company, a copy of each notice, request or demand given by Collateral Agent to Project Company pursuant to the Financing Documents relating to a default by Project Company under the Financing Documents.
1.9 Confirmations.
CPA will, as and when reasonably requested by Collateral Agent from time to time, confirm in writing matters relating to the ESA (including the performance of same by Project Company); provided, such confirmation may be limited to matters of which CPA is aware as of the time the confirmation is given and such confirmations shall be without prejudice to any rights of CPA under the ESA as between CPA and Project Company.
1.10 Exclusivity of Dealings.
Except as provided in Sections 1.3, 1.4, 1.8, 1.9 and 2.1, unless and until CPA receives a Financing Document Default Notice, CPA shall deal exclusively with Project Company in connection with the performance of CPA’s obligations under the ESA. From and after such time as CPA receives a Financing Document Default Notice and until a Substitute Owner is substituted for Project Company pursuant to Section 1.4, a Replacement ESA is entered into or the ESA is transferred to a Person to whom the Facility is transferred pursuant to Section 1.6, CPA shall, until Collateral Agent confirms to CPA in writing that all obligations under the Financing Documents are no longer outstanding, deal exclusively with Collateral Agent in connection with the performance of CPA’s obligations under the ESA, and CPA may irrevocably rely on instructions provided by Collateral Agent in accordance therewith to the exclusion of those provided by any other Person.
1.11 No Amendments.
To the extent permitted by Laws, CPA agrees that it will not, without the prior written consent of Collateral Agent (not to be unreasonably withheld, delayed or conditioned) (a) enter into any material supplement, restatement, novation, extension, amendment or modification of the ESA (b) terminate Agenda Page 516 of 570
Exhibit T - 6
or suspend its performance under the ESA (except in accordance with Section 1.3) or (c) consent to or accept any termination or cancellation of the ESA by Project Company.
SECTION 2. PAYMENTS UNDER THE ESA
2.1 Payments.
Unless and until CPA receives written notice to the contrary from Collateral Agent, CPA will make all payments to be made by it to Project Company under or by reason of the ESA directly to Project Company. CPA, Project Company, and Collateral Agent acknowledge that CPA will be deemed to be in compliance with the payment terms of the ESA to the extent that CPA makes payments in accordance with Collateral Agent’s instructions.
2.2 No Offset, Etc.
All payments required to be made by CPA under the ESA shall be made without any offset, recoupment, abatement, withholding, reduction or defense whatsoever, other than that expressly allowed by the terms of the ESA.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF CPA
CPA makes the following representations and warranties as of the date hereof in favor of Collateral Agent:
3.1 Organization.
CPA is a joint powers authority and community choice aggregator duly organized and validly existing under the laws of the state of California, and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. CPA has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and under the ESA, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.
3.2 Authorization.
The execution, delivery and performance by CPA of this Consent and the ESA have been duly authorized by all necessary corporate or other action on the part of CPA and do not require any approval or consent of any holder (or any trustee for any holder) of any indebtedness or other obligation of CPA which, if not obtained, will prevent CPA from performing its obligations hereunder or under the ESA except approvals or consents which have previously been obtained and which are in full force and effect.
3.3 Execution and Delivery; Binding Agreements.
Each of this Consent and the ESA isin full force and effect,have been duly executed and delivered on behalf of CPA by the appropriate officers of CPA, and constitute the legal, valid and binding obligation of CPA, enforceable against CPA in accordance with itsterms,except as the enforceability Agenda Page 517 of 570
Exhibit T - 7
thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).
3.4 No Default or Amendment.
Except as set forth in Schedule A attached hereto: (a) Neither CPA nor, to CPA’s actual knowledge, Project Company, is in default of any of its obligations under the ESA; (b) CPA and, to CPA’s actual knowledge, Project Company, has complied with all conditions precedent to the effectiveness of its obligations under the ESA; (c) to CPA’s actual knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either CPA or Project Company to terminate or suspend its obligations under the ESA; and (d) the ESA has not been amended, modified or supplemented in any manner except as set forth herein and in the recitals hereto.
3.5 No Previous Assignments.
CPA has no notice of, and has not consented to, any previous assignment by Project Company of all or any part of its rights under the ESA, except as previously disclosed in writing and consented to by CPA.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PROJECT COMPANY Project Company makes the following representations and warranties as of the date hereof in favor of the Collateral Agent and CPA:
4.1 Organization.
Project Company is a limited liability company duly organized and validly existing under the laws of the state of its organization, and is duly qualified, authorized to do business and in good standing in every jurisdiction in which it owns or leases real property or in which the nature of its business requires it to be so qualified, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or its ability to transact its business.
Project Company has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and under the ESA, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.
4.2 Authorization.
The execution, delivery and performance of this Consent by Project Company, and Project Company’s assignment of its right, title and interest in, to and under the ESA to the Collateral Agent pursuant to the Financing Documents, have been duly authorized by all necessary corporate or other action on the part of Project Company.
4.3 Execution and Delivery; Binding Agreement.
This Consent is in full force and effect, has been duly executed and delivered on behalf of Project Agenda Page 518 of 570
Exhibit T - 8
Company by the appropriate officers of Project Company, and constitutes the legal, valid and binding obligation of Project Company, enforceable against Project Company in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).
4.4 No Default or Amendment.
Except as set forth in Schedule B attached hereto: (a) neither Project Company nor, to Project Company’s actual knowledge, CPA, is in default of any of its obligations thereunder; (b) Project Company and, to Project Company’s actual knowledge, CPA, has complied with all conditions precedent to the effectiveness of its obligations under the ESA; (c) to Project Company’s actual knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either CPA or Project Company to terminate or suspend its obligations under the ESA; and (d) the ESA has not been amended, modified or supplemented in any manner except as set forth herein and in the recitals hereto.
4.5 No Previous Assignments.
Project Company has not previously assigned all or any part of its rights under the ESA.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF COLLATERAL AGENT Collateral Agent makes the following representations and warranties as of the date hereof in favor of CPA and Project Company:
5.1 Authorization.
The execution, delivery and performance of this Consent by Collateral Agent have been duly authorized by all necessary corporate or other action on the part of Collateral Agent and Secured Parties.
5.2 Execution and Delivery; Binding Agreement.
This Consent is in full force and effect, has been duly executed and delivered on behalf of Collateral Agent by the appropriate officers of Collateral Agent, and constitutes the legal, valid and binding obligation of Collateral Agent as Collateral Agent for the Secured Parties, enforceable against Collateral Agent (and the Secured Parties to the extent applicable) in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).
SECTION 6. MISCELLANEOUS
6.1 Notices.
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Exhibit T - 9
All notices and other communications hereunder shall be in writing, shall be deemed given upon receipt thereof by the Party or Parties to whom such notice is addressed, shall refer on their face to the ESA (although failure to so refer shall not render any such notice or communication ineffective), shall be sent by first class mail, by personal delivery or by a nationally recognized courier service, and shall be directed (a) if to CPA or Project Company, in accordance with [Notice Section of the ESA] of the ESA, (b) if to Collateral Agent, to [Collateral Agent Name], [Collateral Agent Address], Attn: [Collateral Agent Contact Information], Telephone: [___], Fax: [___], and (c) to such other address or addressee as any such Party may designate by notice given pursuant hereto.
6.2 Governing Law; Submission to Jurisdiction.
(a) THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND THIS CONSENT AND ALL MATTERS ARISING OUT OF THIS CONSENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ANY
CONFLICTS OF LAWS PROVISIONS THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
(b) All disputes, claims or controversies arising out of, relating to, concerning or pertaining to the terms of this Consent shall be governed by the dispute resolution provisions of the ESA. Subject to the foregoing, any legal action or proceeding with respect to this Consent and any action for enforcement of any judgment in respect thereof may be brought in the courts of the State of California or of the United States of America for the Central District of California, and, by execution and delivery of this Consent, each Party hereby accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and appellate courts from any appeal thereof.
Each Party further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to its notice address provided pursuant to Section 6.1 hereof. Each Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Consent brought in the courts referred to above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of any Party to serve process in any other manner permitted by law.
6.3 Headings Descriptive.
The headings of the severalsections and subsections of this Consent are insertedfor convenience only and shall not in any way affect the meaning or construction of any provision of this Consent.
6.4 Severability.
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Exhibit T - 10
In case any provision in or obligation under this Consent shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
6.5 Amendment, Waiver.
Neither this Consent nor any of the terms hereof may (a) be terminated, amended, supplemented or modified, except by an instrument in writing signed by CPA, Project Company and Collateral Agent or (b) waived, except by an instrument in writing signed by the waiving Party.
6.6 Termination.
Each Party’s obligations hereunder are absolute and unconditional, and no Party has any right, and shall have no right, to terminate this Consent or to be released, relieved or discharged from any obligation or liability hereunder until CPA has been notified by Collateral Agent that all of the obligations under the Financing Documents shall have been satisfied in full (other than contingent indemnification obligations) or, with respect to the ESA or any Replacement ESA, its obligations under such ESA or Replacement ESA have been fully performed.
6.7 Successors and Assigns.
This Consent shall be binding upon each Party and its successors and assigns permitted under and in accordance with this Consent, and shall inure to the benefit of the other Parties and their respective successors and assignee permitted under and in accordance with this Consent. Each reference to a Person herein shall include such Person’s successors and assigns permitted under and in accordance with this Consent.
6.8 Further Assurances.
CPA hereby agrees to execute and deliver all such instruments and take all such action as may be necessary to effectuate fully the purposes of this Consent.
6.9 Waiver of Trial by Jury.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE PARTIES HEREBY
IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY MATTER ARISING HEREUNDER. EACH PARTY FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
6.10 Entire Agreement.
This Consent and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral Agenda Page 521 of 570
Exhibit T - 11
negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Consent and any such agreement, document or instrument, the terms, conditions and provisions of this Consent shall prevail.
6.11 Effective Date.
This Consent shall be deemed effective as of the date upon which the last Party executes this Consent.
6.12 Counterparts; Electronic Signatures.
This Consent may be executed in one or more counterparts, each of which will be deemed to be an original of this Consent and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Consent and of signature pages by facsimile transmission, Portable Document Format (i.e., PDF), or by other electronic means shall constitute effective execution and delivery of this Consent as to the Parties and may be used in lieu of the original Consent for all purposes.
[Remainder of Page Left Intentionally Blank.]
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Exhibit T - 12
IN WITNESS WHEREOF, the Parties hereto have caused this Consent to be duly executed and delivered by their duly authorized officers on the dates indicated below their respective signatures. [NEXTERA ENTITY],
a Delaware limited liability company.
CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA,
a California joint powers authority.
By:
[Name]
[Title]
Date:
By:
[Name]
[Title]
Date:
[NAME OF COLLATERAL AGENT],
[Legal Status of Collateral Agent].
By:
[Name]
[Title]
Date:
Agenda Page 523 of 570
Exhibit T - 13
SCHEDULE A
[Describe any disclosures relevant to representations and warranties made in Section 3.4] Agenda Page 524 of 570
Exhibit U - 1
EXHIBIT U
CPM Adjustment Factors
Month Multiplier
January 50%
February 50%
March 50%
April 50%
May 100%
June 100%
July 250%
August 250%
September 250%
October 100%
November 50%
December 50%
Agenda Page 525 of 570
Exhibit V - 1
EXHIBIT V
Supply Chain Code of Conduct
Buyer is committed to ensuring that the fundamental human rights of workers are protected, including addressing the potential risks of forced labor, child labor, servitude, human trafficking and slavery across our portfolio.
Our requirements and expectations with respect to any Major Equipment are set forth in Sections 1 – 8 below (“Supply Chain Code”).
These standards are derived from the United Nations Guiding Principles on Business and Human Rights, the Core Conventions of the International Labour Organization (“ILO”), including the ILO Declaration on Fundamental Principles and Rights at Work, the Solar Energy Industries Association Solar Industry Commitment to Environmental & Social Responsibility, and the Responsible Business Alliance Code of Conduct.
1. Freely Chosen Employment
Forced, bonded (including debt bondage) or indentured labor, involuntary or exploitative prison labor, slavery or trafficking of persons is not permitted. This includes transporting, harboring, recruiting, transferring, or receiving persons by means of threat, force, coercion, abduction or fraud for labor or services. There shall be no unreasonable restrictions on workers’ freedom of movement in any work-related facility in addition to unreasonable restrictions on entering or exiting work-related facilities including, if applicable, workers’ dormitories or living quarters. All work must be voluntary, and workers shall be free to leave work at any time or terminate their employment without penalty if reasonable notice is given as per worker’s contract. Employers, agents, and sub-agents may not hold or otherwise destroy, conceal, or confiscate identity or immigration documents, such as government-issued identification, passports, or work permits. Employers can only hold documentation if such holdings are required by law. In this case, at no time should workers be denied access to their documents. Workers shall not be required to pay employers’ agents’ or sub-agents’ recruitment fees or other related fees for their employment. If any such fees are found to have been paid by workers, such fees shall be repaid to the worker.
2. Young Workers
Child labor is not to be used in any stage of manufacturing Major Equipment or BOP Services. The term “child” refers to any person under the age of 15, or under the age for completing compulsory education, or under the minimum age for employment in the country, whichever is greatest. Suppliers shall implement an appropriate mechanism to verify the age of workers. The use of legitimate workplace learning programs, which comply with all laws and regulations, is supported. Workers under the age of 18 shall not perform work that is likely to jeopardize their health or safety, including night shifts and overtime. Suppliers of Major Equipment shall ensure proper management of student workers through proper maintenance of student records, rigorous due diligence of educational partners, and protection of students’ rights in accordance with applicable laws and regulations. Suppliers of Major Equipment shall ensure appropriate support and training is provided to all student workers. In the absence of local law, the wage rate for Agenda Page 526 of 570
Exhibit V - 2
student workers, interns, and apprentices shall be at least the same wage rate as other entry-level workers performing equal or similar tasks. If child labor is identified, assistance/remediation is provided.
3. Working Hours
Studies of business practices clearly link worker strain to reduced productivity, increased turnover, and increased injury and illness. Working hours are not to exceed the maximum set by local law. Further, a workweek should not be more than 60 hours per week, including overtime, except in emergency or unusual situations. All overtime must be voluntary.
Workers shall be allowed at least one day off every seven days.
4. Wages and Benefits
Compensation paid to workers shall comply with all applicable wage laws, including those relating to minimum wages, overtime hours and legally mandated benefits. In compliance with local laws, workers shall be compensated for overtime at pay rates greater than regular hourly rates. Deductions from wages as a disciplinary measure shall not be permitted. For each pay period, workers shall be provided with a timely and understandable wage statement that includes sufficient information to verify accurate compensation for work performed. All use of temporary, dispatch and outsourced labor will be within the limits of the local law.
5. Humane Treatment
There is to be no harsh or inhumane treatment including violence, gender-based violence, sexual harassment, sexual abuse, corporal punishment, mental or physical coercion, bullying, public shaming, or verbal abuse of workers; nor is there to be the threat of any such treatment. Disciplinary policies and procedures in support of these requirements shall be clearly defined and communicated to workers.
6. Non-Discrimination/Non-Harassment
Suppliers should be committed to a workplace free of harassment and unlawful discrimination. Companies shall not engage in discrimination or harassment based on race, color, age, gender, sexual orientation, gender identity and expression, ethnicity or national origin, disability, pregnancy, religion, political affiliation, union membership, covered veteran status, protected genetic information or marital status in hiring and employment practices such as wages, promotions, rewards, and access to training. Workers shall be provided with reasonable accommodation for religious practices. In addition, workers or potential workers should not be subjected to medical tests that could be used in a discriminatory way or otherwise in violation of applicable law. This was drafted in consideration of ILO Discrimination (Employment and Occupation) Convention (No.111).
7. Freedom of Association
In conformance with local law, Suppliers shall respect the right of all workers to form and join trade unions of their own choosing, to bargain collectively, and to engage in peaceful assembly as well as respect the right of workers to refrain from such activities. Workers and/or their representatives shall be able to openly communicate and share ideas and concerns with management regarding working conditions and management practices without fear of discrimination, reprisal, intimidation, or harassment.
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Exhibit V - 3
8. Restricted Jurisdictions
No Major Equipment may include any components or materials mined, manufactured or produced in the Xinjiang Uyghur Autonomous Region of China.
Agenda Page 528 of 570
Agenda Page 529 of 570
Exhibit X - 1
EXHIBIT X
Force Majeure and/or Development Cure Period Claim Form Instructions
A. Please review Article 10 and Exhibit B (if applicable) of the Power Purchase Agreement prior to filling out the form.
B. Fill out the form completely and return to your assigned Contract Manager at CPA.
Seller: [Name] Project: [Name]
Current Guaranteed Construction Start Date: [Date]
New Guaranteed Construction Start Date (if Seller’s claims are validated in full): [Date] Guaranteed Commercial Operation Date: [Date]
New Guaranteed Commercial Operation Date (if Seller’s claims are validated in full): [Date]
1. Please describe the claimed Force Majeure Event or other event giving rise to the claimed Development Cure Period delay(s) (the “Claimed Event”), including its cause, date of commencement and date it ended or is anticipated to end.
2. Please specify the extent of the delay or prevented performance caused by the Claimed Event, including the relief claimed thereby. Describe how the claimed relief was calculated/determined, accounting for individual developments causing such delay or prevented performance.
3. With respect to a Claimed Event other than a Force Majeure Event, please describe the commercially reasonable efforts taken by Seller to prevent such event.
4. Please describe the commercially reasonable efforts taken to mitigate the delays or nonperformance caused by the Claimed Event and specify how such efforts reduced the delay days or nonperformance that would otherwise have occurred absent such mitigation.
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Exhibit X - 2
5. Please attach supporting documentation, including without limitation:
• Force Majeure notices or other correspondence received from suppliers and/or contractors that describe the basis for and extent of the Claimed Event. • Documentation, contracts, and/or correspondence with suppliers and/or contractors evidencing the claiming Party’s mitigation efforts.
• Project schedule and/or GANNT charts that demonstrate the effect of the Claimed Event on the Guaranteed commercial Operation Date.
By signing this Claim form, I attest and affirm that I am authorized to sign this form on behalf of the Seller, that I have reviewed this Claim, including any attached documentation, and that the facts and statements made in this Claim are true and correct to the best of my knowledge.
Signed:
Name:
Title:
Date:
Agenda Page 531 of 570
Staff Report – Agenda Item 9
To:
From:
Approved by:
Subject:
Date:
Board of Directors
Joanne O’Neill, Director, Customer Programs
Ted Bardacke, Chief Executive Officer
Matt Langer, Chief Operating Officer
Local Government Sustainability Assistance Program
April 6, 2023
Staff will provide a presentation on the item.
ATTACHMENT
1. Presentation on Local Government Sustainability Assistance Program Agenda Page 532 of 570
Local Government Sustainability
Assistance Program
April 6, 2023
Agenda Page 533 of 570
Agenda
2 Background on Local Programs for a Clean Energy Future plan Feedback on Local Government Program proposal
o Program objective
o Program design outreach process
o Local Government Program structure
• Program menu
• Project grants
Budget and next steps
Discussion
Agenda Page 534 of 570
Local Programs for a Clean Energy Future
3 Adopted in 2020, the Plan sets a 5 -year vision for
programs, focused on 3 pillars:
Resilience & Grid
Management Building & Transportation
Electrification
Local Procurement
Agenda Page 535 of 570
Local Government
Program Proposal
Agenda Page 536 of 570
Program Objective
Accelerate adoption of member
agencies’ sustainability and climate
goals through technical assistance and
financial support
Agenda Page 537 of 570
Program Design Outreach Process
6 Hosted two meetings with City
Managers
January
Discussed Program Approach with
Community Advisory Committee
February
Held three City and County staff
feedback sessions
March
Discuss proposal with Board
April
Present Program updates to
Community Advisory Committee
May
Agenda Page 538 of 570
Local Government Program Structure
$10M of funding for technical support and incentives over 3 fiscal years to advance resiliency and grid management , electrification , and/or local procurement within member agencies’ operations or communities 7 Program Menu (1 per agency)
• Potential Budget: $8M
• Scope: Pre-established offerings
within 3 categories
• Benefit: Procured and administered
by CPA to simplify and quickly deploy
Project Grants (up to 2 per agency)
• Potential Budget: $2M
• Scope: Agencies may submit funding
requests
• Benefit: Enables unique or novel
projects
Support to identify and apply to additional funding sources to maximize benefits Agenda Page 539 of 570
Program Menu
Agenda Page 540 of 570
Proposed Program Menu Categories
Municipal Fleet Electrification Building Electrification Community Charging 9 Planning, technical
assistance,
infrastructure and/or
vehicle rebates
Technical assistance
and/or hard costs for
electrification
retrofits
Turn-key public EV
charging at City or
County owned sites
Agenda Page 541 of 570
Program Menu Approach Proposal
10 Each member agency will have the option to chose one menu item category and related services during the 3 -year course of the program Funding for each member agency and each menu category are roughly the same value
Allocation of funding will be reserved for each member agency to account for different implementation timetables in different agencies Enroll
• Select menu
category & sign
participation
agreement
Scope
• Define priorities
and menu items
in scope for
engagement
Implement
• Initiate scope
and complete
by end of
program term
Agenda Page 542 of 570
Fleet Electrification
11 Transportation electrification consultant to
provide technical assistance to guide agency
through one or more of these options:
• Fleet electrification planning
• Technical feasibility and infrastructure
plans
• Incentives to offset costs of vehicles or
charging infrastructure
• Managed charging to support grid
reliability and minimize agency costs
Services and incentives will be based on what
can be achieved during the program period.
Approximate value of $250,000 per agency.
Agenda Page 543 of 570
Building Electrification
12 Building electrification consultant to
provide technical assistance to guide
agency through one or more of these
options: • Technical feasibility and infrastructure
plans
• Support identifying contractors and
vetting scope of work
• Incentives to off-set costs of equipment
and installation
Services and incentives will be based on
what can be achieved during the program
period. Approximate value of $250,000
per agency.
Agenda Page 544 of 570
Community Charging
13 Support for identification of appropriate
sites at agency owned properties
Incentives to off-set cost of chargers
and/or increase free or low-cost
charging access (for new chargers)
Opportunity to leverage new
technologies to increase access to
charging
Services and incentives will be based on
what can be achieved during the program
period. Approximate value of $250,000 per
agency.
Agenda Page 545 of 570
Project Grants
Agenda Page 546 of 570
Example Project Grant Candidates
15 Designed to offer a pathway for innovation to address grid management and resiliency , electrification , and local procurement – or a combination – based on the community’s needs.
Complex Process Optimization
Redesigning of process to reduce energy
usage and optimize for peak pricing
Community Microgrid
Clean energy and battery microgrid to
provide the community resiliency in case
of an outage
Electrification for Affordable Housing
Heat pump water or space heating
replacements for multifamily buildings in
the community
Permit Streamlining Support
Consulting and process improvement
support to streamline permitting for
electrification projects
Agenda Page 547 of 570
Project Grant Approach
16 There would be two grant opportunities, approximately 1 year apart.
Each member agency will have the option to submit one
funding request in each grant opportunity (up to 2 total).
Each grant will be roughly the same value, based on the submission, estimated as up to 250k. This may cover up to 100% of project cost.
Notice of Grant
Opportunity #1
Grant
Applications Due
Applicants
selected
Notice of Grant
Opportunity #2
Grant
Applications Due
Applicants
selected
Q4 2023
CPA will seek agency’s
feedback on detailed
grant requirements prior
to launching grant
request
Q1 2024 Q4 2025
Q2 2024 Q1 2025
Q2 2024
Agenda Page 548 of 570
Budget and Next Steps
Agenda Page 549 of 570
Budget Estimate by Year
18 Year 1
(2023-2024)
Year 2
(2024-2025)
Year 3
(2025-2026)
Estimated
Technical Support
/ Incentive Budget
$2,500,000 $5,000,000 $2,500,000
Key activities
• Launch readiness and
vendor RFPs (Q3-Q4)
• Recruitment and
enrollment of member
agencies (Q1 ‘24)
• Program participation
begins (Q1-Q2 ‘24)
• First cohort of grant
opportunities funded
(Q2 ’24)
• Program participation
ramps up
• Second cohort of
grant opportunities
funded
• Program participation
tapers off as projects
complete
• Potential to increase
funding beyond $2.5
million based on
program success and
funding availability
Agenda Page 550 of 570
Next Steps
19 Incorporate input and
finalize program design
Incorporate into FY 23/24
budget planning
Detail approach in
Program implementation
plan (detailed eligibility
and participation
requirements)
Engage stakeholders in
review of draft Program
implementation plan prior
to finalizing
Agenda Page 551 of 570
Discussion
Agenda Page 552 of 570
Staff Report – Agenda Item 10
To: Board of Directors
From: Matt Langer, Chief Operating Officer
Karen Schmidt, Director, Rates & Strategy
Approved by: Ted Bardacke, Chief Executive Officer
Subject: FY 2023/2024 Rate Setting
Date: April 6, 2023
Staff will provide a presentation on the item.
ATTACHMENT
1. Presentation on FY 2023/2024 Rate Setting
Agenda Page 553 of 570
Item 10 – Preview of FY 2023-24 Rate
Setting
April 6, 2023
Agenda Page 554 of 570
Summary
At its March meeting, the Board adopted interim rates that went into effect on April 1, 2023 Staff is now focusing on FY 2023-24 rate setting
One of the first steps in this process is conducting a Cost of Service (COS) study analyzing how the cost to serve CPA’s customers compares to current rates Concurrently, CPA’s financial projections for the next fiscal year are being updated as part of the budget process
Further updates to the financial projections could impact aspects of the COS results and will be reflected in proposed rate approaches presented to the Board in May 2 Agenda Page 555 of 570
Product Differentials
The COS analysis indicates a widening of the product price differential amongst CPA’s three rate products
o The main driver for this widening is the increased cost of short-term renewable energy o Increased energy prices overall partially mitigate the widening of the differentials between the three rate products
For FY 2022-23, the Board adopted product differentials where 100% Green was priced 3% higher than Clean and 4% higher than Lean
Staff will likely present rate options with cost differentials increasing to 100% Green being priced 4% higher than Clean and 5% higher than Lean to more closely follow the current COS 3 Agenda Page 556 of 570
April 2023 bill comparisons to SCE
The April rate adjustment utilized
an across the board percentage
increase to all rates
As a result:
Rate comparisons vary amongst
typical (non-subset) rate classes
o Product differentials vary by
rate class and differ from those
adopted by the Board in June
2022
As part of FY 2023-24 rate setting,
staff will recommend reconciling
some of these differentials
*Comparisons are based on representative 2018 PCIA vintage rate schedules and load profiles for each rate class. Individual customer comparisons vary by specific rate schedule and customer usage.
Rate Class* Lean PowerClean Power 100% Green Power
Residential -5.8% -4.6% -1.0%
Residential CARE -8.6% -6.8% -6.8%
Small Business -3.5% -2.3% 1.4%
4 Agenda Page 557 of 570
FY23-24 rate options will reflect
competitiveness and financial targets
Staff will present a range of rate scenarios to the Board in May that reflect updated financial projections and proposed FY23-24 budget and reserve targets 5 Scenario
Residential/Small Business Rate Comparison to SCE Reserve % at end FY24* Lean Power Clean Power 100% Green
Power
Low Scenario -6.0% -5.0% -1.0% 30%
Mid Scenario -5.0% -4.0% 0.0% 33%
High Scenario -2.0% -1.0% 3.0% 40%
Preliminary FY23-24 Rate Scenarios
*Board approved reserve target is 30% to 50% of operating expenses.
Agenda Page 558 of 570
Staff will prepare rate scenarios based on updated financial projections Rate scenarios and a proposed rate approach will be presented to the Executive Committee in April and to the Board in May
The FY2023/24 budget and rate setting process will continue as follows:
Next Steps
Month 2023/24 Rate Setting 2023/24 Budget
April Implement interim rates
FY 23/24 rate outlook
May Adopt rate setting approach Discuss budget priorities June Adopt final rates Adopt final budget
July Implementation of FY 23/24 rates Start of new Fiscal Year 6 Agenda Page 559 of 570
Questions and Discussion
Agenda Page 560 of 570
Management Report
To:
From:
Subject:
Date:
Board of Directors
Ted Bardacke, Chief Executive Officer
Management Report
April 6, 2023
Expansion Plan for New Cities Confirmed by CPUC
Over the course of March, CPA received California Public Utilities Commission certification of its expansion plan for the cities of Hermosa Beach, Monrovia, and Santa Paula and a confirmation of a March 2024 service start date. Collectively, inclusion of these three cities will increase CPA’s customer count by approximately 37,000 and load by approximately 3.7%.
Over the next several months, CPA will welcome three new Board members from, ramp up customer engagement and stakeholder engagement activities in the new CPA cities, procure additional energy to serve the additional load, and work extensively with Southern California Edison and billing manager Calpine to prepare for enrollment.
AB 1538 Advocacy
CPA’s sponsored bill, AB 1538 (Muratsuchi), has been double referred to both the Assembly Utilities and Energy Committee and the Assembly Natural Resources Committee. It will be heard first in the Assembly Utilities and Energy Committee on April 12th. CPA has requested that all CPA Board members work with their cities or counties to submit an official Letter of Support as soon as possible to increase the chances that it will be included in the first committee analysis. The bill has been supported by CalCCA and several of CPA’s member communities. It does not have any opposition to date.
The bill has been amended to clarify that renewable, new build resources can only qualify for the incentive if they use a project labor agreement for projects that are five megawatts or larger or meet prevailing wage requirements for projects under five megawatts.
Agenda Page 561 of 570
Board of Directors Management Report
Additional amendments to clarify qualifying clean capacity resources have also been made. A fact sheet on AB 1538 is attached.
Earth Day Events
CPA staff will attend at least 13 events in April to celebrate Earth Month. These include Earth Day fairs in the cities of Carson, Hawthorne, Thousand Oaks, Paramount, Calabasas, Ventura, Sierra Madre, Ojai, Claremont, Simi Valley, and Rolling Hills Estates.
These events will be an opportunity for CPA to connect with community members and educate customers about what CPA does and CPA’s programs and rate options. Two events – the Downey Space Center “City of STEM” Festival on April 1 and the Pando Populus “Pando Days ‘23” launch on April 16 – are part of CPA’s funding to community-based organizations through CPA’s 2022 Community Benefits Grant program. Both events support students in developing innovative projects to make their communities more sustainable. At these events, CPA will join a panel of judges to provide feedback to students on their proposed projects, in addition to educating attendees on what CPA does in their communities.
CalCCA Annual Conference
The annual conference of the California Community Choice Association (CalCCA) is being held May 17-19 in San Diego. The annual conference brings together CCA leadership and staff, industry leaders, state elected officials, and other experts to discuss and learn from each other about the electricity sector through the perspective of community choice. Directors who wish to attend are reminded to RSVP with Raynette Tom ([email protected]) no later than April 7.
Monthly Financial Performance
CPA recorded a loss of $14.2 million in January due to high wholesale electricity prices that resulted from price shocks in the natural gas market. January results were also negatively impacted by the contingent accrual of a possible $3.99 million Resource Adequacy non-compliance penalty. CPA has not yet been formally cited and may appeal the citation once it arrives. The monthly financial performance dashboard is attached to this report.
Agenda Page 562 of 570
Board of Directors Management Report
Customer Participation Rate and Opt Actions
As of March 27, 2023, CPA’s overall participation rate was 93%, unchanged from the previous month. CPA had 1,005,110 active customers, up 587 customers since January.
Opt-out levels for the month – 311 accounts through the fourth week of March – are lower than February and low overall compared to historical norms during the first quarter of the year. New accounts (“move-ins”) were higher than closed accounts (“move-outs”) by 301 customers in February, in line with historical norms for the first quarter of the year.
Participation rates and active accounts by jurisdiction are attached to this report.
Customer Service Center Performance
Incoming calls to CPA’s Customer Service Center during March were down from February and significantly lower compared to typical months in the first quarter of the year. Through March 27, CPA received 1,168 calls compared to 1,368 calls in February and an average of 3,858 calls per month in the first quarter of previous years. 99% of calls were answered within 45 seconds, unchanged from the previous month, and the average wait time was 5 seconds, also unchanged from the previous month.
Contracts Executed Under the Chief Executive Officer’s Authority A list of non-energy contracts executed under the CEO’s signing authority is provided in Attachment 2. The list includes all open contracts as well as all contracts, open or completed, executed in the past 12 months.
ATTACHMENTS
1. January Financial Dashboard
2. AB 1583 Fact Sheet
3. Participation Rates by Jurisdiction
4. Non-Energy Contracts Executed under CEO’s Authority
Agenda Page 563 of 570
CUSTOMERS
Summary of Financial Results
Definitions:
Accounts: Active Accounts represents customer accounts of active customers served by CPA per Calpine Invoice.
Participation Rate %: Participation Rate represents active accounts divided by eligible CPA accounts YTD Sales Volume: Year-to-date sales volume represents the amount of energy (in gigawatt hours) sold to retail customers Revenues: Retail energy sales less allowance for doubtful accounts Cost of energy: Cost of energy includes direct costs incurred to serve CPA’s load Operating expenses: Operating expenditures include general, administrative, consulting, payroll and other costs required to fund operations Net operating income, also known as earnings before interest, depreciation and amortization (EBIDA), represents the difference between revenues and expenditures before depreciation expense, interest income and expense, and capital expenditures Cash and Cash Equivalents: Includes cash held as bank deposits.
Year to date (YTD): Represents the fiscal period beginning July 1, 2022 YTD
Jan
2023
Financial Dashboard
Note: Numbers may not sum up due to rounding.
Active Accounts
1,005,932
Participation Rate
93.3%
YTD Sales Volume
6,908 GWh
Jan Sales Volume
886 GWh
In January 2023 CPA recorded an operating loss of $14.2 million which was $23 million less than the budgeted operating income of $8.7 million. For the year to date, CPA has recorded an operating loss of $31.1 million, $112.6 million less than the budgeted operating income of $81.5 million.
January results were negatively impacted by a continuing price spike in natural gas markets which caused significant increases in wholesale electricity prices in January, by higher than budgeted renewable energy costs, and by the contingent accrual in January of a possible $3.99 million penalty arising from non-compliance with the California Public Utilities Commission (CPUC) year ahead Resource Adequacy (RA) program. Non-compliance with the year ahead RA compliance obligation reflects a shortage of available RA for sale in California energy markets.
Year-to-date revenue was $692.8 million in line with budgeted revenue. The cost of energy was $704.6 million or 20% higher than budgeted resulting from a heat wave in September 2022, price shocks in the gas and electricity markets in December 2022 and January 2023, higher than budgeted renewable energy costs, recording of prior period costs in the current fiscal year and a RA compliance penalty recorded in January 2023. Operating costs were lower than budgeted primarily as a result of lower spending in general administrative and other service costs than budgeted and the non-utilization of contingencies.
As of January 31, 2023, CPA had $36.2 million in unrestricted cash and cash equivalents and $79.853 million available on its bank line of credit.
CPA is in sound financial health and in compliance with its bank and other credit covenants.
Agr/Oth
2%
Com-Lg
19%
Com-Sm
28%
Res
52%
118
250
378
451
526
609
693
1114
0 200
400
600
800
1000
1200
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
in 000,000's
Operating Revenue Actual Budget
0 20
40 60
80 100
120
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Cash & Cash Equivalents
Unrestricted Restricted
in $000,000's Actual Budget Variance % Actual Budget Variance % Operating Revenues 83.6 85.1 -1.5 -2% 692.8 692.8 0.0 0% Cost of Energy 94.9 72.4 22.5 31% 704.6 585.0 119.6 20% Revenues Less Energy Cost -11.3 12.7 -24.1 -189% -11.8 107.8 -119.6 -111% Operating Expenses 2.9 4.0 -1.1 -28% 19.3 26.4 -7.1 -27% Operating Income -14.2 8.7 -23.0 -263% -31.1 81.5 -112.6 -138% Jan Year-to-Date
21 20
5 9 21
0 -12
$243
-100
-50
0 50
100
150
200
250
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Revenue Less Energy Cost
Actual Budget
Agenda Page 564 of 570
Assemblymember Al Muratsuchi
AB 1538: Clean Energy Reliability Proposal
Summary
This bill creates a catalyst program to incentivize getting clean, zero-carbon capacity resources online, creatively designed to increase grid reliability and ultimately decrease electricity rates.
Background
Over the last several years, California has been at increasing and ongoing risk of not having enough capacity on the grid to meet demand. A combination of key resources going offline, regulatory changes, and other issues have reduced system capacity to critical levels. At the same time, demand continues to increase due to climate change, and will increase even further as the state pushes towards increasing vehicle and building electrification.
Capacity, tracked through the resource adequacy (RA) program, is bought and sold through a bi-lateral market structure that is overseen by the CPUC. For the market structure to work as intended, there needs to be enough supply available to create competition between generators to sell RA at competitive prices. But a tight market over the past few years has meant that this competition has ceased to exist, causing the price of RA to skyrocket. High RA prices are contributing to rapidly rising electricity rates.
The Problem
Without a steady influx of new clean resources in the market, prices will continue to go up, electricity bills will continue to rise, and grid emergencies and the threat or reality of rotating outages will become more frequent.
The CPUC has had a track record of issuing short term procurement orders to tackle reliability issues as they surface. However, these orders only direct procuring resources to replace existing capacity that is set to retire and fails to account for the new capacity that will be needed due to hotter temperatures and increased electrification. This means that under current policy, grid reliability will, at best, stay the same as it is today, forcing the state to increasingly rely on the newly created “last-resort” taxpayer-funded Strategic Electricity Reliability Reserve and doing little to reduce the rise in electricity rates.
Short-term procurement orders give enormous market power to developers who happen to have projects in development with near-term online dates, which continues to drive up the cost for ratepayers. And because these short-term orders have largely been reactive, rather than the result of proactive, long-term planning, they are easily disrupted by trade and supply chain issues, war, the pandemic, and other global issues.
CleanPowerAlliance.org Follow @cleanpowerinfo:
Agenda Page 565 of 570
CleanPowerAlliance.org Follow @cleanpowerinfo:
The state needs a long-term plan to bring new, clean energy resources on the grid quickly and consistently. It needs to move away from relying simply on short-term procurement orders, and from using a “sticks” only approach that punishes load-serving entities (LSEs) who don’t meet their targets, but offers no incentive for LSEs that go above and behind the requirements.
The Solution
The solution is two-pronged: set a big, bold target for new, zero-carbon capacity and incentivize LSEs to quickly get that capacity online and to exceed the target, providing a cushion for reliability and liquidity to the RA market.
AB 1538 would establish the Clean Energy Reliability Program to be administered by the CPUC. This program would provide incentive payments to LSEs that bring clean energy resources online, above their compliance requirements. The incentive payments will be equal to the current year RA market price benchmark for each eligible megawatt. This will also help bring increased competition to the RA market.
Together, the incentive payments paired with the reduced RA prices will help relieve near-term upward pressure on electricity rates.
AB 1538 would work in conjunction with an open proceeding at the CPUC that is creating a long-term framework and target for new clean energy resources by 2035 to ensure there is enough capacity to meet reliability needs. This bill will send a signal to the CPUC that the target should be a floor and not a ceiling, provide guidance to the CPUC that the target should be a floor not a ceiling, in order to create the necessary competition that will drive down prices in the RA market.
Conclusion
By working with the CPUC to set up a long-term capacity procurement minimum target, and creating steading, reliable incentives for LSEs to make the necessary capacity investments, the state can achieve electricity reliability, lower rates, and a smooth transition to a clean electric grid.
Support
Clean Power Alliance (sponsor)
Staff Contact
Gina Goodhill
[email protected]
(213) 361-6650
Agenda Page 566 of 570
Preferred Energy Option Participation %
100% Green
Clean
Lean
92.9%
94.2%
92.5%
Total 93.1%
OVERALL CUSTOMER STATUS REPORT
March 27, 2023
PARTICIPATION BY CITY AND COUNTY
Preferred Energy Option Active Accounts Participation % Lean % Clean % 100% Green % Agoura Hills 100% Green 8,073 88.2% 2.2% 0.4% 97.5%
Alhambra Clean 33,944 95.4% 1.5% 98.3% 0.2%
Arcadia Lean 22,544 95.3% 99.8% 0.1% 0.1%
Beverly Hills 100% Green 18,601 97.2% 1.8% 0.1% 98.1%
Calabasas 100% Green 9,711 93.6% 1.9% 0.3% 97.8%
Camarillo 100% Green 28,282 89.7% 1.2% 0.1% 98.8%
Carson Clean 29,280 95.7% 1.3% 98.5% 0.2%
Claremont 100% Green 12,616 91.2% 2.7% 0.3% 97.0%
Culver City 100% Green 19,125 94.7% 4.0% 1.2% 94.9%
Downey Clean 36,702 95.0% 1.6% 98.3% 0.1%
Hawaiian Gardens Clean 3,623 95.3% 1.1% 98.6% 0.3%
Hawthorne 100% Green 28,406 97.0% 0.4% 1.4% 98.2%
Los Angeles County 100% Green 300,046 94.9% 1.9% 38.5% 59.6% Malibu 100% Green 6,957 94.8% 2.9% 0.4% 96.7%
Manhattan Beach 100% Green 15,432 95.7% 2.8% 0.2% 97.1% Moorpark Clean 11,406 85.8% 3.0% 96.4% 0.6%
Ojai 100% Green 3,508 88.7% 6.1% 1.3% 92.7%
Oxnard 100% Green 55,297 92.3% 4.0% 0.9% 95.1%
Paramount Lean 15,623 96.6% 96.4% 2.8% 0.9%
Redondo Beach 100% Green 33,193 96.1% 1.8% 0.1% 98.1%
Rolling Hills Estates 100% Green 3,501 92.0% 7.2% 1.6% 91.2% Santa Monica 100% Green 54,136 93.6% 3.4% 0.8% 95.8%
Sierra Madre 100% Green 4,951 92.1% 5.5% 1.6% 92.9%
Simi Valley Lean 43,237 89.4% 99.7% 0.1% 0.2%
South Pasadena 100% Green 11,623 95.1% 3.8% 0.7% 95.5%
Temple City Lean 12,548 95.7% 99.8% 0.1% 0.2%
Thousand Oaks 100% Green 44,278 83.1% 8.0% 1.6% 90.4%
Ventura 100% Green 43,816 88.9% 4.8% 1.5% 93.7%
Ventura County 100% Green 33,302 86.8% 6.4% 1.3% 92.4%
West Hollywood 100% Green 26,394 96.6% 2.4% 0.4% 97.2%
Westlake Village Lean 3,748 88.5% 99.5% 0.1% 0.4%
Whittier Clean 31,207 94.0% 1.9% 98.0% 0.2%
Total 1,005,110 93.1%
Energy Option Active Accounts Participation %
100% Green
Clean
Lean
619,447
263,436
122,207
61.6%
26.2%
12.2%
Total 1,005,110 100.0%
OVERALL PARTICIPATION BY ENERGY OPTION
Agenda Page 567 of 570
Vendor Purpose Month NTE Amount Status Notes
Accuweather Weather forecasting March 2023 $10,176 Active goodpr. Event planning services March 2023 $16,000 Active Shute, Mihaly & Weinberger, LLP
Legal Service Agreement (Regulatory,
Administrative, Environmental, Energy
Procurement, Public Contracting, Public
Entity Governance Laws, Issues and/or
Proceedings)
March 2023 $65,000 Active Renewal
Ntooitive Website development March 2023 $20,000 Active Municipal Capital Markets GIC brokerage services February 2023 $38,900 Active Amendment for GIC brokerage services - paid out of Energy Prepay Bond proceeds
Mercer Retention incentive program development January 2023 $50,000 Active SBCCOG Satellite Board meeting venue January 2023 $50/hr Active Wrike Project management software January 2023 $5,814 Active Ironclad Contract lifecycle management platform January 2023 $16,000 Active PrimeGov Board and committee meeting agenda
management software December 2022 $16,000 Active Renewal DERNetSoft, Inc. Business customer engagement reporting tool December 2022 $53,000 Active
Ion Objects, Inc. IT consulting December 2022 $4,000 Active Amendment for updated project scope AiQueous, LLC Salesforce implementation December 2022 $7,395 Active Amendment to update scope for project completion
ZGlobal Engineering services December 2022 $50,000 Active Pinnacle Advocacy Lobbying services December 2022 $66,652 Active Omni Government Relations Lobbying services December 2022 $82,492 Active Langan Software development and IT consulting December 2022 $35,000 Active Museum of Ventura County Event space rental for City Manager Lunch December 2022 $825 Completed S&P Credit assessment December 2022 $37,500 Active
Meltwater Media analytics and monitoring services November 2022 $13,750 Active Cision Media/PR wire distribution services November 2022 $2,240 Active NewGen ERRA forecast support November 2022 $11,000 Active Amendment to update scope
of PSA for SCE Green Tariff Shared
Renewable Rate Review
Sigma Data analytics tool October 2022 $13,000 Active
Language Line Translation services October 2022 $50,000 Active Langan GIS services October 2022 $78,500 Active Second renewal term Mercer Compensation and benefits study refresh September 2022 $75,000 Completed Pickit Digital asset library September 2022 $2,900 Active Salesforce Stakeholder Relationship Management
application subscription August 2022 $15,300 Active
Clean Power Alliance
Non-energy contracts executed under Chief Executive Officer authority Rolling 12 months -- Open contracts shown in Bold
Agenda Page 568 of 570
Vendor Purpose Month NTE Amount Status Notes
Clean Power Alliance
Non-energy contracts executed under Chief Executive Officer authority Rolling 12 months -- Open contracts shown in Bold
Elite Edge Consulting Accounting services August 2022 $90,000 Active Original Contract Date: September 2020
NTE $112,000
Amendment #1 - NTE for renewals
increased to $120,000 in September 2020
Amendment #2 - First renewal authorized
July 2021 - Extends through 6/30/2022
Amendment #3 - Second (final) renewal
authorized; extends through 6/30/2022
Oscar Associates Recruiting Services August 2022 N/A Active Amendment to reduce placement fees to
25% of starting salary of exclusively
referred candidate
Burke, Williams, Sorenson, LLP
Legal Services Agreement (Brown Act,
public entity governance issues and other
legal services)
July 2022 $100,000 Active Renewal
Hall Energy Law PC Energy Procurement Counsel July 2022 $125,000 Active Renewal Helpmates Temporary staffing services July 2022 N/A Active Baker Tilly Financial audit services June 2022 $50,000 Active IHS Market Subscription for CAISO forecasts June 2022 $15,000 Active MBI Marketing contract renewal June 2022 $7,687 Active 3% increase to Board approved NTE upon renewal
Adobe Inc. AdobeSign Secure Electronic Signature
Service June 2022 $3,200 Active Renewal
Snowflake Inc. Cloud-Native Elastic Data Warehouse
Service June 2022 $25,000 Active Renewal
Fraser Marketing contract renewal June 2022 $55,647 Active 9% increase to Board approved NTE upon renewal
Place and Page Graphic deisgn and branding June 2022 $50,000 Active Informal Development Website development May 2022 $50,000 Active Chapman & Cutler, LLP 2021 Legal Services (CPA's Credit Agreement) April 2022 $55,000 Active Renewal
Polsinelli, LLP
Legal Service Agreement (Employment,
Compliance, General Legal Support related
to Commercial Liability, Risk, and
Mitigation issues)
April 2022 $75,000 Active Renewal
Lattice Performance management software April 2022 $9,000 Active Davis Wright Tremaine Legal services (regulatory) March 2022 $125,000 Active Clear Language Company Minute transciption for board meetings January 2022 $0 Original Contract Date: November 2021
NTE $20,000
Amendment 1 - $0, to clarify fee structure
Agenda Page 569 of 570
Vendor Purpose Month NTE Amount Status Notes
Clean Power Alliance
Non-energy contracts executed under Chief Executive Officer authority Rolling 12 months -- Open contracts shown in Bold
OpenPath New Office Keycard Access Control
System January 2021 $1,500 Active
Crown Castle Fiber LLC New Office Dedicated Internet Access Service September 2020 $ 18,600 Active
NextLevel Internet, Inc. New Office High Speed Internet Service September 2020 $ 6,936 Active Windstream Services, LLC New Office Telephone Service September 2020 $ 14,095 Active Zero Outages New Office Security, Firewall, & Wi-Fi
Service September 2020 $ 7,608 Active
Agenda Page 570 of 570