Board of Directors of the
Clean Power Alliance of Southern California
Regular Meeting
Thursday, October 10, 2024
2:00 p.m.
Visit CPA’s YouTube Channel to view a Live Stream of the Meeting www.youtube.com/@CPApublicmeetings
*There may be a streaming delay of up to 90 seconds. This is a view-only live stream.
Clean Power Alliance
Diana Mahmud Board Room
801 S. Grand Ave., Suite 400
Los Angeles, CA 90017
Members of the public may also participate in this meeting at the following locations:
Calabasas City Hall
Council Conference Room
100 Civic Center Way
Calabasas, CA 91301
Ventura County Government Center
Point Mugu Conference Room, 4th Floor
Hall of Administration
800 South Victoria Avenue
Ventura, CA 93009
Whittier City Hall
Admin Conference Room
13230 Penn Street
Whittier, CA 90602
South Bay Cities Council of Governments
Conference Room
2355 Crenshaw Blvd., Suite 125
Torrance, CA 90501
PUBLIC COMMENT: Members of the public may submit their comments by one of the following options:
• Email Public Comment: Members of the public are encouraged to submit written comments on any agenda item to [email protected] up to four hours before the meeting. Written public comments will be announced at the meeting and become part of the meeting record. Public comments received in writing will not be read aloud at the meeting. • Provide Public Comment During the Meeting: The General Public Comment item is reserved for persons wishing to address the Board on any Clean Power Alliance-related matters not on today’s agenda. Public comments on matters on today’s Consent Agenda and Regular Agenda shall be heard at the time the matter is called. Comments on items on the Consent Agenda are consolidated into one public comment period. Members of the public who wish to address the Board at CPA’s Office are requested to complete a comment card and provide it to staff. If you are attending from a remote location, please identify yourself to a CPA representative when your item is called. Each speaker is limited to two (2) minutes (in whole-minute increments) per agenda item with a cumulative total of five 5 minutes to be allocated between the General Public Comment, the entire Consent Agenda, or individual items in the Regular Agenda. Please refer to Policy No. 8 – Public Comment for additional information.
Agenda Page 1
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If the PDF is downloaded, the bookmark panel (ribbon icon) appears on the left side of the screen.
ACCESSIBILITY: Meetings are accessible to people with disabilities. Individuals who need special assistance or a disability-related modification or accommodation to participate in this meeting, or who have a disability and wish to request an alternative format for the meeting materials, should contact the Clerk of the Board at least two (2) working days before the meeting at [email protected] or (213) 713- 5995. Notification in advance of the meeting, while not required, will enable us to make reasonable arrangements to ensure accessibility to this meeting and the materials related to it.
CALL TO ORDER AND PLEDGE OF ALLEGIANCE
ROLL CALL
GENERAL PUBLIC COMMENT
CLOSED SESSION
1. CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Section 54956.9: 1
CONSENT AGENDA
2. Approve Minutes from the September 5, 2024, Board of Directors Regular Meeting
3. Approve Appointment of One New Member to the Community Advisory Committee for the Open Position in East Ventura/West L.A. County Region for a May 2024 – April 2026 Term
4. Approve the Amended and Restated Power Purchase Agreement with SunZia Wind PowerCo LLC and Authorize the Chief Executive Officer to Execute the Agreement
5. Receive and File Bill Positions October 2024 Monthly Report
6. Receive and File Monthly Community Advisory Committee Report
REGULAR AGENDA
Action Item
7. Adopt Resolution No. 24-10-075 to Approve Amendments to the Non-Energy Contracting Policy
Information Item
8. Receive Presentation on Energy Team & Efficient Cooling for Low Income Customers
Agenda Page 2
COMMITTEE CHAIR UPDATES
Director Cedric Hicks, Chair, Legislative & Regulatory Committee Director Susan Santangelo, Chair, Finance Committee
Director Robert Parkhurst, Chair, Energy Planning & Resources Committee
MANAGEMENT REPORT
BOARD MEMBER COMMENTS
REPORT FROM THE CHAIR
ADJOURN – NEXT REGULAR MEETING NOVEMBER 7, 2024
Public Records: Public records that relate to any item on the open session agenda for a regular Board Meeting are available for public inspection. Those records that are distributed less than 72 hours prior to the meeting are available for public inspection at the same time they are distributed to all, or a majority of, the members of the Board. Public records are available for inspection at CPA’s Office at 801 S. Grand Ave., Suite 400, Los Angeles, CA 90017, or online at www.cleanpoweralliance.org/agendas.
Agenda Page 3
Commonly Used Acronyms
BESS Battery Energy Storage System
CAC Community Advisory Committee
CAISO California Independent System Operator
CALCCA California Community Choice Association
CalEVIP California Electric Vehicle Incentive Program
CARB California Air Resources Board
CARE California Alternate Rates for Energy (Low Income Discount Rate) CCA Community Choice Aggregation
CEC California Energy Commission
CPUC California Public Utilities Commission
DA Direct Access (Private Retail Energy Supplier)
DAC Disadvantaged Community (As Defined by Calenviroscreen 3.0) DER Distributed Energy Resources
DR Demand Response
ERMP Energy Risk Management Policy
ERRA Energy Resource Recovery Account (SCE Generation Rate Setting)
ESA Energy Storage Agreement
EVSE Electric Vehicle Supply Equipment (EV Charger)
FERA Family Electric Rate Assistance (Low Income Discount Rate) GHG Greenhouse Gas
IOU Investor Owned Utility
IRP Integrated Resource Plan
JPA Joint Powers Authority
Agenda Page 4
Commonly Used Acronyms
Kwh Kilowatt-Hour (A Measure of Energy Used in A One-Hour Period) Kw Kilowatt = 1,000 Watts (Watt = A Measure of Instantaneous Power) LSE Load Serving Entity
MB Medical Baseline (Discount Rate for Medical Equipment Needs) MW Megawatt = 1,000 Kilowatts
Mwh Megawatt-Hour = 1,000 Kilowatt-Hours
NEM Net Energy Metering (Usually for Customers with Solar) OAT Other Applicable Tariffs
PCIA Power Charge Indifference Adjustment (Can Be Called “Exit Fee”) PCC1 Renewable Energy Generated Inside California
PCC2 Renewable Energy Generated Outside California
PCC3 A REC from A Renewable Resource, Delivered Without Energy PCL Power Content Label
POU Publicly Owned or Municipal Utility
PPA Power Purchase Agreement
PSPS Public Safety Power Shutoff
PV Photovoltaic (Solar) Panels
RA Resource Adequacy
REC Renewable Energy Credit
RPS Renewables Portfolio Standard
T&D Transmission and Distribution
TOU Time Of Use (Used to Refer to Rates that Differ by Time Of Day) WECC Western Electricity Coordinating Council
Agenda Page 5
Staff Report – Agenda Item 1
To: Board of Directors
Subject: Closed Session
Date: October 10, 2024
ATTACHMENT
1. Attachments for Closed Session will be forwarded under separate cover.
Agenda Page 6
Staff Report – Agenda Item 2
To: Board of Directors
Subject: Approve Minutes from the September 5, 2024 Board of Directors Meeting
Date: October 10, 2024
RECOMMENDATION
Approve.
ATTACHMENT
1. Minutes
Agenda Page 7
Board of Directors Item 2
MINUTES
Board of Directors of the
Clean Power Alliance of Southern California
Regular Meeting
Thursday, September 5, 2024, 2:00 p.m.
Meeting videos are available on CPA's YouTube Channel.
http://www.youtube.com/@CPApublicmeetings
Board members participated from the following locations:
Calabasas City Hall
Council Conference Room
100 Civic Center Way
Calabasas, CA 91301
Clean Power Alliance
Diana Mahmud Board Room
801 S. Grand Ave., Suite 400
Los Angeles, CA 90017
Whittier City Hall
Admin Conference Room
13230 Penn Street
Whittier, CA 90602
Ventura County Government Center
Point Mugu Conference Room, 4th Floor
Hall of Administration
800 South Victoria Avenue
Ventura, CA 93009
South Bay Cities Council of Governments
Conference Room
2355 Crenshaw Blvd., Suite 125
Torrance, CA 90501
CALL TO ORDER & ROLL CALL
Chair Klein Lopez called the meeting to order at 2:00 p.m. and Gabriela Monzon, Clerk of the Board, conducted roll call.
PLEDGE OF ALLEGIANCE
Director Crosswhite led the pledge of allegiance.
Roll Call
1 Agoura Hills Deborah Klein Lopez Chair Present
2 Alhambra Jeff Maloney Director Present
3 Arcadia Michael Cao Alternate Present
4 Beverly Hills Julian Gold Alternate Present
5 Calabasas Ed Albrecht Director Remote
6 Camarillo Susan Santangelo Director Remote
7 Carson Cedric Hicks Director Remote
8 Claremont Corey Calaycay Director Present
9 Culver City Joe Susca Alternate Remote
10 Downey Horacio Ortiz Director Remote
Agenda Page 8
Board of Directors Item 2
11 Hawaiian Gardens Absent
12 Hawthorne Alex Monteiro Director Present
13 Hermosa Beach Doug Krauss Alternate Present
14 Los Angeles County Lindsey Horvath Vice Chair Present 15 Malibu Marianne Riggins Director Remote
16 Manhattan Beach Amy Howorth Director Remote
17 Monrovia Edward Belden Director Present
18 Moorpark Renee Delgado Director Remote
19 Ojai Michelle Ellison Alternate Remote
20 Oxnard Bert Perello Director Remote
21 Paramount Michelle Muller Alternate Remote
22 Redondo Beach Absent
23 Rolling Hills Estates Debby Stegura Director Remote
24 Santa Monica Gleam Davis Director Present
25 Santa Paula Jenny Crosswhite Director Present
26 Sierra Madre Absent
27 Simi Valley Rocky Rhodes Director Present
28 South Pasadena Jon Primuth Director Present
29 Temple City Ed Chen Director Present
30 Thousand Oaks David Newman Director Remote
31 City of Ventura Liz Campos Director Remote
32 Ventura County Vianey Lopez Vice Chair Present
33 West Hollywood Absent
34 Westlake Village Absent
35 Whittier Mary Ann Pacheco Director Remote
All votes are unanimous unless otherwise stated.
GENERAL PUBLIC COMMENT
There was no public comment.
CONSENT AGENDA
1. Approve Minutes from the June 21, 2024 Board of Directors Special Meeting
2. Approve Minutes from the July 11, 2024 Board of Directors Regular Meeting
Agenda Page 9
Board of Directors Item 2
3. Appoint One New Member to the Community Advisory Committee for the Open Position in West/Unincorporated Ventura County Region for a May 2024-April 2026 Term
4. Approve and Authorize the Chief Executive Officer to Execute a Professional Services Agreement with Arup US Inc. for Consulting Engineering Services for the Power Ready Programs with a Total Not-to-Exceed Amount of $974,770 for a Two-Year Initial Term with the Option to Renew for Two Successive One Year Terms for a Maximum of Two Additional Years
5. Adopt Resolution 24-09-072 to Approve Amendments to the Records Retention Policy No. 2019-11
6. Adopt Resolution 24-09-073 Authorizing an Increase of the $1,500,000,000 Single Transaction Limitation of Aggregate Principal Amount of Clean Energy Project Revenue Bonds to $1,524,280,000 and a Related Amendment of the Clean Energy Purchase Contract entered into in Connection with the August 2024 Energy Prepayment Transaction
7. Receive and File Calendar Year Q2 Risk Management Team Report
8. Receive and File Calendar Year Q3 Communications Report
9. Receive and File Calendar Year Q3 Member Agency Program Report
10. Receive and File Annual Electricity Usage by Jurisdiction
11. Receive and File Bill Positions July 2024 Monthly Report
12. Receive and File Monthly Community Advisory Committee Report Director Rhodes pulled Item 11 from the consent agenda.
Motion: Director Gold, Beverly Hills
Second: Director Davis, Santa Monica
Vote: The consent agenda, with the exception of Item 11, was approved by roll call vote.
Director Rhodes expressed concern about support on SB 1221 and AB 1176, noting he believes the legislation burdens member agencies without providing tangible benefits.
Motion: Vice Chair Horvath, Los Angeles County
Second: Director Gold, Beverly Hills
Vote: Item 11 was approved by roll call vote with No votes from Directors Calaycay, Rhodes, and Delgado.
REGULAR AGENDA
13. Adopt Resolution No. 24-09-074 Approving the Amended Power Share Community Solar Tariff and Power Share Tariff and Approve Proposed Power Share Auto-Enrollment Criteria
Alex Ricklefs, Program Manager, Community Solar, presented an overview of the Power Share program, which provides participating customers with a 20% bill discount and 100% renewable energy generated locally. The CPUC has directed CPA to auto-enroll customers rather than have customers opt-in. Mr. Ricklefs provided a breakdown of customers by member agency, then reviewed CPUC requirements. CPA’s clean energy capacity is expanded by 6.1 MW for a total program capacity of 18.3 MW, which expands the customer base from 6,500 to 10,000. Current customers will remain in the program. A large one-time auto-enrollment will take place in January of 2025, aiming to enroll about 4,000 new
Agenda Page 10
Board of Directors Item 2
customers, focusing on CARE or FERA customers, customers in disadvantaged communities, and/or customers at high risk of disconnection. After that, CPA will do a monthly auto-enrollment of about 25 to 50 customers. Mr. Ricklefs noted that staff will review accounts that are on payment plans, in arrears, and/or located in disadvantaged communities census tracts. Customers who meet multiple criteria will be identified as most in need. Staff will submit tariffs to the CPUC via a Tier Advice Letter, implement auto-enrollment in January of 2025, and release the RFO for new Power Share projects in the first half of 2025. Chair Klein Lopez praised staff for fulfilling the Executive Committee’s request to develop a method identifying at-risk customers from all eligible communities within CPA’s service area.
In response to Director questions, staff explained that there are about 200,000 total CARE/FERA customers in CPA territory and about 90,000 of those are in the 75th percentile of disadvantaged communities. Staff also clarified that the CPUC provides subsidies to CPA for the 20% customer bill discount and the reimbursement of above market procurement costs of the local solar projects that supply the program, including the new additional capacity for the program.
Additionally, based on the prioritization method proposed, customers who will be enrolled in the program will already be on some sort of payment plan and that the CPUC may consider the expansion of the program in the future, barring any funding challenges. Lastly, staff addressed questions relating to assisting customers with financial hardships. CPA offers several programs to assist customers experiencing financial duress and may prioritize such customers for auto-enrollment as needed. Regarding the City of Whittier’s high levels of customer participation, staff noted that the California Energy Commission (CEC) funded a regional Advanced Energy Community program in the area with that increased outreach and customer participation in the city.
Motion: Vice Chair Horvath, Los Angeles County
Second: Director Monteiro, Hawthorne
Vote: Item 13 was approved by a roll call vote.
14. Approve and Authorize the Chief Executive Officer to Execute a Professional Services Agreement with ev.energy to Develop and Implement a Managed Electric Vehicle Charging Program for CPA Residential Customers for a One Year Initial Term with Successive One Year Terms, with a Three-Year Total Not-to-Exceed Amount of $1,734,091 Joanne O'Neill, Director of Customer Programs, provided program information, stating that the goal is to encourage customers to charge during low-cost hours.
CPA is projecting ten-fold growth in electric vehicle ownership by 2045. Ms. O’Neill described the managed charging program, which offers customer incentives to charge vehicles at times that are financially beneficial to the customer and enhance grid reliability. Staff has a goal of enrolling at least 6,600 customers each year, representing approximately 5% of EV drivers in CPA’s service area. The program will provide more than 2.8 MW of managed load annually and promote retention through customer satisfaction surveys. Battery Electric Vehicles (BEVs) are the programs’ primary target, and Plug-in Hybrid Vehicles (PHEVs), and EV chargers (EVSEs) will also be eligible. Ms. O’Neill explained the customer experience, including onboarding, charging methods, app engagement, and rewards.
Customers will receive reports on savings, emissions, and incentives/rewards. The
Agenda Page 11
Board of Directors Item 2
selected vendor has experience operating programs for other CCAs and will aim to enroll 19,800 customers over the three-year contract. The vendor is able to leverage funds from the CEC to offset up to 50% of customer incentive payments, which are calculated at just under $1.5 million.
Director Crosswhite inquired about the charging mechanism and how CPA would ensure this type of charging does not harm customer equipment. Staff noted that devices can charge adaptively and explained charging cycles; staff will follow up with the vendor to clarify. In response to Director Maloney’s question about electric vehicle brands, staff noted that some manufacturers are more challenging to work with as they want full control their data and telematics. On the subject of data, the vendor is prohibited from collecting information on customers’ personal driving habits. Director Stegura asked about marketing and outreach; staff will conduct outreach through the automakers, and the Department of Motor Vehicles will also provide CPA with information about drivers of electric vehicles. There are agreements in place to protect customer data. Director Perello pointed to issues relating to EV charging in homeowner and community associations for staff awareness.
Motion: Vice Chair Horvath, Los Angeles County
Second: Director Gold, Beverly Hills
Vote: Item 14 was approved by a roll call vote.
15. Approve a Support Position on Proposition 4 – the Safe Drinking Water, Wildlife Presentation, Drought Preparedness and Clean Air Bond Act of 2024, as Supported by the Legislative & Regulatory Committee
Gina Goodhill, Senior Director of Government Affairs, explained that the bond would authorize use of $10 billion for various elements, including clean energy issues, safe drinking water, wildlife and open space protection, and drought preparedness. A little more than $1 billion would support transmission, battery storage, utility infrastructure enhancement, extreme heat response and offshore wind. The Legislative and Regulatory Committee recommended a support position, and Committee Chair Hicks added that a key component of the proposition is that it requires 40% of the projects to benefit disadvantaged communities.
Vice Chair Horvath expressed support for the measure, stating that it would help Los Angeles County meet their climate change response goals. Chair Klein Lopez agreed with the support position, noting that the proposition is consistent with CPA’s policy platform. In response to Director Perello’s concerns about support of the legislation, Nancy Whang, General Counsel, clarified that Board Members can vote yes, no, or abstain and that a vote does not create personal liability for a Board member. Ms. Whang explained that the agency is prohibited from spending agency funds on advocacy in support of the proposition. If the CPA Board votes to support, that position is only from the Joint Powers Authority and not individual member agencies.
Motion: Director Monteiro, Hawthorne
Second: Director Davis, Santa Monica
Vote: Item 15 was approved by a roll call vote with abstentions from Directors Calaycay, Perello, Rhodes, and Chen.
Agenda Page 12
Board of Directors Item 2
COMMITTEE CHAIR UPDATES
Director Hicks, Chair of the Legislative Committee, reported on the South Coast Air Quality Management District’s consideration of new requirements to electrify water heaters and furnaces by 2027 and 2028, respectively, when older appliances need replacing. The Committee will report back to the Board of Directors on the financial impact to customers.
MANAGEMENT REPORT
Mr. Bardacke reported that CPA will sunset the Reach Code Program by the end of 2025; encouraged Board members to review the member agency report for the status of Power Ready projects in their respective jurisdictions. As part of the Energized Communities program, CPA will launch the Innovation Grant program, and staff has been meeting with city managers regarding the initiative that will fund $250,000 for sustainability projects.
Applications are due at the beginning of December.
Responding to Director Rhodes’ inquiry about Southern California Edison (SCE) rates, Mr.
Bardacke explained that SCE will inform the CPUC of its generation rate reduction by September 20th, which will impact CPA’s competitiveness levels beginning in October but will not impact CPA customer bills. More information about potential changes to the Power Charge Indifference Adjustment (PCIA) will be known later in October; changes to the PCIA would impact CPA customer bills, which would be discussed at the November Board meeting. Regarding the member agency programs dashboard, Mr. Bardacke also clarified that staff will reach out to Board members if there are any significant issues with projects in their jurisdictions.
BOARD MEMBER COMMENTS
Director Monteiro reported that he attended a presentation at the U.S. Hybrid plant in Torrance regarding plans to build hydrogen-powered buses, trucks, and minivans.
REPORT FROM THE CHAIR
Chair Klein noted that the state is experiencing a severe heat wave and thanked CPA staff and Board members for their leadership during times of stress on the grid.
ADJOURN
Chair Klein Lopez adjourned the meeting at 3:53 p.m.
Agenda Page 13
Staff Report – Agenda Item 3
To: Board of Directors
From: Christian Cruz, Senior Community Outreach Manager Approved by: Ted Bardacke, Chief Executive Officer
Subject: Appointment of Community Advisory Committee Member for the 2024-2026 Term
Date: October 10, 2024
RECOMMENDATION
Appoint one (1) new member to the CAC for the open position in East Ventura/West L.A.
County Region for a May 2024 – April 2026 term.
BACKGROUND
On June 7, 2018, the Board of Directors approved a structure for the CAC to provide input on various policy and planning issues and be a voice for CPA in the community. Per the CPA Bylaws (Article 8, Section 5), the two-year term of service for current CAC members runs from May 2024 to April 2026.
RECOMMENDED CAC APPOINTMENT
Earlier this year, one of the three CAC members representing the East Ventura/West L.A.
County Region resigned from the CAC due to work commitments. Staff worked with member jurisdictions and stakeholders to identify suitable applicants for the vacant seat in the East Ventura/West L.A. County Region. Based on feedback from the regional Board representatives, staff recommends that the Board appoint Kat Selm to the vacant seat for the remainder of the current term. The applicant summary for the recommended appointee is attached.
Agenda Page 14
Board of Directors Item 3
RECOMMENDED APPOINTMENT IN YELLOW
East Ventura/West LA County
(Agoura Hills, Camarillo, Calabasas, Moorpark,
Simi Valley, Thousand Oaks)
Appointed:
• Angus Simmons
• Debbie West
Proposed new appointment:
• Kat Selm
San Gabriel Valley
(Alhambra, Arcadia, Claremont, Monrovia, Sierra
Madre, South Pasadena, Temple City)
Appointed:
• Richard Tom
• Vacant
West/Unincorporated Ventura County
(Ojai, Oxnard, Santa Paula, Ventura,
Unincorporated Ventura County)
Appointed:
• Daniel Mora
• Kent Bullard
South Bay
(Carson, Hermosa Beach, Hawthorne, Manhattan
Beach, Redondo Beach, Rolling Hills Estates)
Appointed:
• Cort Cassady
• Diane Wallace
Gateway Cities
(Downey, Hawaiian Gardens, Paramount,
Whittier)
Appointed:
• Genaro Bugarin
• Vacant
Westside
(Beverly Hills, Culver City, Malibu, Santa Monica,
West Hollywood)
Appointed:
• Cris Gutierrez
• David Haake
Unincorporated LA County
Appointed:
• Neil Fromer
• Vacant
ATTACHMENT
1. CAC New Applicant Summary
Agenda Page 15
Board of Directors Item 3
2024 Community Advisory Committee New Applicant Summary Candidate: Kat Selm Subregion: East Ventura/West LA County Eligible Yes Section 1: Personal Information
A. Home Address: Thousand Oaks, CA
B. Occupation: Senior Associate, The Better World Group Section 2: Qualifications
A. Experience serving on advisory committees / public commissions / similar bodies:
• Currently serve on the Santa Monica Mountains Conservancy advisory committee and the Ventura Land Trust advisory committee.
• I have served on steering committees for both the city of Oxnard's climate action plan and the county of Ventura's multi-jurisdictional hazard mitigation plan update. Cumulatively I have approximately three years and four months of experience serving in this capacity.
B. Experience with outreach or community leadership:
• I have helped to co-found two climate coalitions, the Conejo Climate Coalition and the Ventura Climate Coalition, that advocate for local policies that address the climate crisis such as climate action plans, reach codes, and distributed solar + storage.
• I also helped to found the Conejo Housing Coalition, which advocates for sustainable and affordable housing that is accessible for all. • In my previous role with The Nature Conservancy, I worked on equitable access to open space in disadvantaged communities in Oxnard and Santa Paula.
C. Experience or expertise in the energy field:
• throughout my time steering the Conejo Climate Coalition, I have become familiar with renewable energy, specifically the technical, logistical, and political considerations of building decarbonization, the downsides of natural gas and RNG, and Title 24 parts 6 and 11. Through education and advocacy, my coalition has successfully garnered adoption amongst developers in our city for all electric, leed certified construction of new multi-family projects.
D. Other skills / knowledge / experience to bring to Committee:
• N/A
Section 3: Additional Information
A. Why you are interested / what you hope to achieve:
• I would like to learn more about CPA, become a better advocate for its programs and activities, share this information with my network, and help to create a more sustainable community where I live.
B. List other languages / ability to support non-English speaking communities:
• n/a
Agenda Page 16
Board of Directors Item 3
C. Anything else you would like CPA to know:
• I am in the process of shifting my career towards climate and sustainability, and hope to work on clean transportation and decarbonization projects that center community and environmental justice at my new firm The Better World Group.
Serving on this committee will help me gain perspective and knowledge on critical infrastructure that aids in our fight against climate change, and I hope that my new career will benefit my work on the advisory committee and vice versa.
Section 4: Commitment
A. I will be able to make this commitment.
B. Signed to certify electric holder in CPA service territory and meet eligibility requirements? Yes.
Agenda Page 17
Staff Report – Agenda Item 4
To: Board of Directors
From: Lindsay Descagnia, Vice President, Power Supply
John McNamara, Director, Structured Contracts
Reviewed By: Matt Langer, Chief Operating Officer
Nancy Whang, General Counsel
Approved By: Ted Bardacke, Chief Executive Officer
Subject: Approve an Amended and Restated Power Purchase Agreement with SunZia Wind PowerCo LLC and Authorize the Chief Executive Officer to Execute the Agreement
Date: October 10, 2024
RECOMMENDATION
Approve the Amended and Restated Power Purchase Agreement with SunZia Wind PowerCo LLC (SunZia) and Authorize the Chief Executive Officer to Execute the Agreement.
PROJECT BACKGROUND AND NEED TO AMEND AND RESTATE
CPA and SunZia are parties to a 575 MW Power Purchase Agreement (“PPA”) that was approved by the Board on November 2, 2023. The SunZia project will be the largest renewable energy project in the United States and includes the construction of a new dedicated transmission line from the project site in central New Mexico to deliver electricity to California. The project broke ground in December of 2023. The construction is proceeding on schedule. The Guaranteed Commercial Operation date is October 31, 2026.
Agenda Page 18
Board of Directors Item 4
SunZia’s new 550-mile transmission line will run between central New Mexico and south-central Arizona and, currently, will connect the project to the California electricity grid managed by the California Independent System Operator (CAISO) at its Palo Verde intertie in Arizona. In this current configuration, SunZia will act as a standalone Balancing Authority Area (“BAA”), responsible for the reliability of its transmission system, in this case a single transmission line
In June 2024, SunZia notified CPA of its desire to change the generation facility and transmission system from a standalone BAA into one that is directly part of the CAISO system. This would effectively expand CAISO’s footprint past its current eastern boundary of Palo Verde in Arizona to the SunZia transmission switchyard in central New Mexico, which is the point of interconnection for the SunZia Wind assets. This transition would be accomplished through the CAISO Subscriber Participating Transmission Owner (SPTO) model.
The SPTO model is a new initiative by CAISO to expand its grid, facilitate new long-distance transmission investment, and access diverse renewable resources outside of the State of California to meet in-state climate goals without increasing transmission rates for CAISO customers. The SPTO model would accomplish CAISO’s goals by adding new privately funded transmission to access renewable resources. Under the SPTO, transmission costs would continue to be paid by entities that subscribe to the transmission line. The only subscriber on the SunZia transmission line is the SunZia Wind project.
Customers of SunZia, including CPA, would not bear any additional costs. Aside from the SPTO model allowing for an extension of CAISO’s footprint outside of California, the SPTO process is substantially similar to that of any in-state transmission owner joining the CAISO and does not change the economics of the SunZia PPA for CPA.
However, SunZia’s participation in the SPTO model could eventually mean the project is not treated as an import into California for purposes of the Resource Adequacy (“RA”) program. Updates to the PPA are required to ensure that CPA can claim the RA associated with SunZia when and if it becomes part of the CAISO.
Agenda Page 19
Board of Directors Item 4
CPA retained Todd Larsen with Clean Energy Counsel to represent CPA and its interests in the negotiation of this agreement. Mr. Larsen’s work was overseen by CPA’s General Counsel.
AMEND AND RESTATE AGREEMENT (“A&R”) SUMMARY
The A&R will only become effective if SunZia’s Interconnection Point becomes a part of CAISO. Until and unless SunZia accomplishes that milestone, the original PPA approved by the Board in November 2023 will continue to govern. The formal incorporation of SunZia’s Interconnection Point into CAISO is expected to take place in 2026, but SunZia has requested the A&R be put in place now to facilitate the project’s long-term financing and therefore to keep project construction on track.
Once the A&R becomes effective after SunZia becomes part of CAISO, the A&R includes language that will accommodate the structural changes required to transition from an import resource to one operating within the CAISO. While most of the existing PPA will not be altered, there are a few essential updates that are required to address the change, including:
• The rules governing the operation of the generation resource and transmission facility in order to schedule the resource as one that is located within CAISO and not dynamically scheduled as an import.
• Converting the market operations from importing energy to an “internal” CAISO resource including bidding, scheduling and delivering energy to the market. • The procedure for the transition from imported RA to System RA through Full Capacity Deliverability Status following the completion of network upgrades, if the upgrades are completed during the term of the contract. • Cleanup of definitions and language related to buyer caused curtailment to clarify and preserve cost allocations between parties during curtailments.
Agenda Page 20
Board of Directors Item 4
None of the changes to PPA will increase costs, risks, or burdens for CPA.1
BENEFITS OF THE PROPOSED A&R
SunZia’s incorporation into the CAISO’s system is anticipated to reduce operational complexity related to the scheduling of the resource into the CAISO market and reduce compliance risk associated with the accounting and registration of Renewable Energy Credits (RECs) from the project. Additionally, it will increase the certainty that CPA will be able to claim the full RA benefits for this resource, as SunZia will be able to seek Full Capacity Deliverability Status (FCDS) with CAISO. If SunZia is granted FCDS, which will require network upgrades scheduled to be completed in the mid-2030s, CPA will no longer need to obtain Import Allocation Rights (“IARs”) to claim RA from SunZia as is currently the case.
ATTACHMENT
1. Amended and Restated Renewable Power Purchase Agreement with SunZia Wind PowerCo LLC
1 Additionally, the technical amendments contained in the proposed A&R do not impact CPA’s competitiveness or SunZia’s trade secrets and therefore are not redacted. The redactions in the proposed A&R are the same as those presented in the contract approved by the Board at the November 2, 2023 Board meeting. There are no new redactions.
Agenda Page 21
SMRH:4861-6996-2153.44 1
OLD: 4861-6996-2153.36
100124 NEW: 4861-6996-2153.40
AMENDED AND RESTATED
RENEWABLE POWER PURCHASE AGREEMENT
COVER SHEET
Seller: SunZia Wind PowerCo LLC, a Delaware limited liability company Buyer: Clean Power Alliance of Southern California, a California joint powers authority Description of Facility: A wind-powered electricity generating facility with a nameplate capacity of up to 3,515 MW, as described in Exhibit A, as such facility may be modified under the terms of this Agreement.
Milestones:
Milestone Expected Date for
Completion
Executed Interconnection Agreement Completed
Bureau of Land Management Record of Decision for
SunZia Transmission Line Completed
Evidence of Site Control Completed
Expected Financial Close Completed
Expected Construction Start Date Completed
Guaranteed Construction Start Date Completed
Expected Initial Synchronization 2/28/2026
Expected Commercial Operation Date 4/30/2026
Expected Date of CAISO Commercial Operation 4/30/2026
Guaranteed Commercial Operation Date 10/31/2026
Delivery Term: Fifteen (15) Contract Years
Delivery Term Expected Energy:
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Contract Year Expected Energy (MWh)
1-15
1,815,112 MWh, as such amount may be adjusted by
Seller in accordance with the definition of “Expected
Energy” below
Guaranteed Capacity: 575 MW of total Facility capacity
Renewable Rate:
Contract Year Renewable Rate ($/MWh)
1 – 15
$ /MWh (flat) with no
escalation; provided, prior
to the RA Guarantee Date
the Renewable Rate shall be
equal to the $ /MWh.
Product
☒ Facility Energy
☒ Green Attributes (if Renewable Energy Credit, please check the applicable box below):
☒ Portfolio Content Category 1
☐ Portfolio Content Category 2
☐ Portfolio Content Category 3
☒ Capacity Attributes
Scheduling Coordinator: Seller
Security Amounts:
Development Security: $ /kW of Guaranteed Capacity
Performance Security: $ /kW of Guaranteed Capacity
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS .............................................................................................1
1.1 Contract Definitions .....................................................................................1
1.2 Rules of Interpretation ...............................................................................26 ARTICLE 2 TERM; CONDITIONS PRECEDENT ...................................................27
2.1 Contract Term. ...........................................................................................27
2.2 Conditions Precedent to Delivery Term ....................................................28
2.3 Development; Construction; Progress Reports ..........................................29
2.4 Remedial Action Plan ................................................................................29
2.5 Facility Ownership. ....................................................................................30
2.6 Project Bifurcation or Transition. ..............................................................30 ARTICLE 3 PURCHASE AND SALE ..........................................................................33
3.1 Purchase and Sale of Product .....................................................................33
3.2 Sale of Green Attributes.............................................................................33
3.3 Imbalance Energy. .....................................................................................33
3.4 Ownership of Renewable Energy Incentives. ............................................33
3.5 Future Environmental Attributes. ..............................................................34
3.6 Test Energy. ...............................................................................................34
3.7 Capacity Attributes. ...................................................................................34
3.8 Resource Adequacy Failure .......................................................................36
3.9 CEC Certification and Verification. ..........................................................36
3.10 Eligibility. ..................................................................................................37
3.11 California Renewables Portfolio Standard. ................................................37
3.12 Compliance Expenditure Cap. ...................................................................37
3.13 Project Configuration .................................................................................38 ARTICLE 4 OBLIGATIONS AND DELIVERIES .....................................................38
4.1 Delivery......................................................................................................38
4.2 Title and Risk of Loss. ...............................................................................39
4.3 Forecasting .................................................................................................39
4.4 Dispatch Down/Curtailment. .....................................................................41
4.5 Station Use .................................................................................................41
4.6 Facility Maintenance ..................................................................................42
4.7 Guaranteed Energy Production. .................................................................43
4.8 WREGIS ....................................................................................................44 ARTICLE 5 TAXES ........................................................................................................46
5.1 Allocation of Taxes and Charges. ..............................................................46
5.2 Cooperation. ...............................................................................................47 ARTICLE 6 MAINTENANCE OF THE FACILITY ..................................................47
6.1 Maintenance of the Facility. ......................................................................47
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6.2 Maintenance of Health and Safety. ............................................................47
6.3 Shared Facilities .........................................................................................47 ARTICLE 7 METERING ...............................................................................................48
7.1 Metering. ....................................................................................................48
7.2 Meter Verification. .....................................................................................48 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ..............................................48
8.1 Invoicing. ...................................................................................................48
8.2 Payment......................................................................................................49
8.3 Books and Records. ...................................................................................49
8.4 Payment Adjustments; Billing Errors. .......................................................49
8.5 Billing Disputes. ........................................................................................49
8.6 Netting of Payments. ..................................................................................50
8.7 Seller’s Development Security. .................................................................50
8.8 Seller’s Performance Security....................................................................50
8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ......51
8.10 Financial Statements. .................................................................................51 ARTICLE 9 NOTICES ...................................................................................................52
9.1 Addresses for the Delivery of Notices .......................................................52
9.2 Acceptable Means of Delivering Notice ....................................................52 ARTICLE 10 FORCE MAJEURE.................................................................................52
10.1 Definition ...................................................................................................52
10.2 No Liability If a Force Majeure Event Occurs ..........................................53
10.3 Notice .........................................................................................................54
10.4 Termination Following Force Majeure Event or Development Cure Period54 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ......................................55
11.1 Events of Default .......................................................................................55
11.2 Remedies; Declaration of Early Termination Date. ...................................58
11.3 Damage Payment; Termination Payment ..................................................58
11.4 Notice of Payment of Termination Payment or Damage Payment. ...........60
11.5 Disputes With Respect to Termination Payment or Damage Payment. ....60
11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date. .................................................60
11.7 Rights And Remedies Are Cumulative. .....................................................61
11.8 Mitigation. ..................................................................................................61 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF
WARRANTIES ..................................................................................61
12.1 No Consequential Damages. ......................................................................61
12.2 Waiver and Exclusion of Other Damages. .................................................61 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY ...........63
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13.1 Seller’s Representations and Warranties. ..................................................63
13.2 Buyer’s Representations and Warranties. ..................................................64
13.3 General Covenants. ....................................................................................65
13.4 Prevailing Wage. ........................................................................................65
13.5 Community Benefits Funding.. ..................................................................66
13.6 Supplier Diversity Reporting. ....................................................................66 ARTICLE 14 ASSIGNMENT ........................................................................................66
14.1 General Prohibition on Assignments. ........................................................66
14.2 Collateral Assignment ................................................................................66
14.3 Permitted Assignment by Seller.................................................................66
14.4 Shared Facilities; Portfolio Financing. ......................................................67
14.5 Buyer Financing Assignment. ....................................................................67 ARTICLE 15 DISPUTE RESOLUTION ......................................................................68
15.1 Governing Law. .........................................................................................68
15.2 Dispute Resolution. ....................................................................................69
15.3 Attorneys’ Fees. .........................................................................................69
15.4 Venue.. .......................................................................................................69 ARTICLE 16 INDEMNIFICATION .............................................................................69
16.1 Indemnification. .........................................................................................69
16.2 Claims. .......................................................................................................70 ARTICLE 17 INSURANCE............................................................................................70
17.1 Insurance ....................................................................................................70 ARTICLE 18 CONFIDENTIAL INFORMATION .....................................................72
18.1 Definition of Confidential Information. .....................................................72
18.2 Duty to Maintain Confidentiality. ..............................................................72
18.3 Irreparable Injury; Remedies. ....................................................................73
18.4 Further Permitted Disclosure. ....................................................................73
18.5 Press Releases ............................................................................................73 ARTICLE 19 MISCELLANEOUS ................................................................................73
19.1 Entire Agreement; Integration; Exhibits. ...................................................73
19.2 Amendments. .............................................................................................74
19.3 No Waiver.. ................................................................................................74
19.4 No Agency, Partnership, Joint Venture or Lease.. .....................................74
19.5 Severability. ...............................................................................................74
19.6 Mobile-Sierra.. ...........................................................................................74
19.7 Counterparts.. .............................................................................................74
19.8 Electronic Delivery.. ..................................................................................74
19.9 Binding Effect. ...........................................................................................75
19.10 No Recourse to Members of Buyer. ..........................................................75
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19.11 Forward Contract. ......................................................................................75
19.12 Change in Electric Market Design .............................................................75
19.13 Further Assurances.....................................................................................76
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Exhibits:
Exhibit A Facility Description
Exhibit B Facility Construction and Commercial Operation Exhibit C Compensation
Exhibit D Scheduling Coordinator Responsibilities
Exhibit E Progress Reporting Form
Exhibit F-1 Form of Monthly Expected Available Facility Capacity Report Exhibit F-2 Form of Monthly Expected Facility Energy Report Exhibit G Guaranteed Energy Production Damages Calculation Exhibit H Form of Commercial Operation Date Certificate Exhibit I Form of Installed Capacity Certificate
Exhibit J Form of Construction Start Date Certificate
Exhibit K Form of Letter of Credit
Exhibit L Form of Limited Assignment Agreement
Exhibit M Form of Guaranty
Exhibit N Notices
Exhibit O Reserved
Exhibit P CPM Adjustment Factors
Exhibit Q Supply Chain Code of Conduct
Exhibit R Metering Diagram
Exhibit S Material Permits
Exhibit T Force Majeure Event and/or Development Cure Period Claim Form Exhibit U Operating Restrictions
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AMENDED AND RESTATED
RENEWABLE POWER PURCHASE AGREEMENT
This Amended and Restated Renewable Power Purchase Agreement (“Agreement”) is entered into as of _________ (the “Execution Date”), between Buyer and Seller. Buyer and Seller are sometimes referred to herein individually as a “Party” and jointly as the “Parties”. All capitalized terms used in this Agreement are used with the meanings ascribed to them in Article 1 to this Agreement.
RECITALS
WHEREAS, Buyer and Seller entered into that certain Renewable Power Purchase Agreement dated as of November 3, 2023 (“Original Agreement”); WHEREAS, Seller intends that the Facility and the portion of the Transmission System providing transmission service to the Delivery Point will become part of the CAISO Balancing Authority Area through the CAISO Subscriber Participating Transmission Owner (“SPTO”) process, requiring certain changes to the Original Agreement; WHEREAS, Buyer and Seller now desire to amend and restate the Original Agreement, which amendment and restatement shall be effective as of the Effective Date, to accommodate these changes, and to make certain additional changes thereto; WHEREAS, Seller intends to develop, design, construct, own, and operate the Facility; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in this Agreement, the Product;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree that the Original Agreement, together with the Cover Sheet, exhibits and all other attachments referenced therein, is hereby amended and restated as of the Effective Date as follows:
ARTICLE 1
DEFINITIONS
1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.12(c). “Adjusted Energy Production” has the meaning set forth in Exhibit G.
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“Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee”, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person. “Agreement” has the meaning set forth in the Preamble and includes the Cover Sheet and any Exhibits, schedules and any written supplements hereto. “Alternate Facility” means that certain wind generating facility described in Exhibit A. “Alternative Delivery Point” means a Scheduling Point other than the Delivery Point that is agreed upon by Buyer and Seller.
“Approved Forecast Vendor” means (a) or (b) any other reputable third-party vendor that is registered to do business in California, experienced in providing and verifying wind energy generation forecasts, and not an Affiliate of Seller. “Assignment Agreement” has the meaning set forth in Section 14.5(a). “Available Capacity” means Buyer’s Share of the Installed Capacity, expressed in whole MW, that is available to generate Energy.
“Balancing Authority” has the meaning set forth in the CAISO Tariff. “Balancing Authority Area” has the meaning set forth in the CAISO Tariff. “Bankrupt” or “Bankruptcy” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet.
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“Buyer Assignee” has the meaning set forth in Section 14.5(a). “Buyer Default” means an Event of Default of Buyer.
“Buyer’s Indemnified Parties” has the meaning set forth in Section 18.2. “Buyer’s Share” means, (a) prior to the Commercial Operation Date, the percentage equal to (i) prior to the later of (x) the first date that the CAISO informs Seller in writing that Seller may deliver Energy to the CAISO and (y) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to operate in parallel with the PTO’s system, the quotient of (A) the Guaranteed Capacity divided by (B) the Expected Installed Capacity, or (ii) following the later of (x) the first date that the CAISO informs Seller in writing that Seller may deliver Energy to the CAISO and (y) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to operate in parallel with the PTO’s system, the product of (A) the quotient of (I) the Guaranteed Capacity divided by (II) the difference of (x) Expected Installed Capacity minus (y) the Guaranteed Installed Capacity, multiplied by (B) the quotient of (I) the difference of (x) the total nameplate capacity of the Facility in operation at the time, minus (y) the Guaranteed Installed Capacity, divided by (II) the total nameplate capacity of the Facility in operation at the time, as applicable, and (b) from and after the Commercial Operation Date, the percentage equal to the result of dividing the Guaranteed Capacity by the Installed Capacity, as such percentage may change from time to time with changes to the Installed Capacity; provided, in no event shall the Buyer’s Share exceed 100% (whether before or after establishment of the final Installed Capacity).
“Buyer’s WREGIS Account” has the meaning set forth in Section 4.8(a). “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Certification” means the certification and testing requirements for a generating unit set forth in the CAISO Tariff that are applicable to the Facility, including certification and testing for PMAX and PMIN associated with such generating units, that are applicable to the Facility.
“CAISO Commercial Operation” means that the CAISO has provided notification that the Energy generation from a portion of the Facility that is no smaller than the Guaranteed Installed Capacity may be scheduled into the CAISO markets on an unconditional basis in accordance with the CAISO Tariff and Business Practice Manual(s) as applicable, including the New Resource Implementation process.
“CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including
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the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time to time and approved by FERC.
“California Renewables Portfolio Standard” or “RPS” means the renewable energy program and policies established by California State Senate Bills 1038 (2002), 1078 (2002), 107 (2008), X-1 2 (2011), 350 (2015), and 100 (2018) as codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means Buyer’s Share of any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can generate and deliver to the Delivery Point at a particular moment and that can be purchased, sold or conveyed under CAISO or CPUC market rules, including Resource Adequacy Benefits. “CEC” means the California Energy Commission or its successor agency. “CEC Certification and Verification” means that the CEC has certified (or, with respect to periods before the date that CEC has provided final certification, that the CEC has pre-certified) that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Facility Energy qualifies as generation from an Eligible Renewable Energy Resource.
“CEC Precertification” means that the CEC has issued a precertification for the Facility indicating that the planned operations of the Facility would comply with applicable CEC requirements for CEC Certification and Verification.
“Change of Control” means any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, at least fifty percent (50%) of the outstanding equity interests in Seller; provided, in calculating ownership percentages for all purposes of the foregoing:
(a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’s ownership interest in Seller unless Ultimate Parent directly or indirectly owns at least fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller. “CIRA Tool” means the CAISO Customer Interface for Resource Adequacy, or any successor mechanism.
“COD Certificate” has the meaning set forth in Exhibit B. “COD Delay Damages Payment” has the meaning set forth in Exhibit B.
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“Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” means the date Commercial Operation is achieved. “Commercial Operation Delay Damages” means an amount equal to (a) the Development Security amount required hereunder, divided by (b) “Compliance Actions” has the meaning set forth in Section 3.12(a). “Compliance Expenditure Cap” has the meaning set forth in Section 3.12. “Confidential Information” has the meaning set forth in Section 18.1. “Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. “Contract Revenues” has the meaning set forth in Section 4.4(b). “Contract Term” has the meaning set forth in Section 2.1(a). “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
“COVID-19” means the pandemic disease designated COVID-19 and the related virus designated SARS-CoV-2 and any mutations thereof, and the efforts of a Governmental Authority to combat such disease.
“CPM Adjustment Factor” means, for any RA Shortfall Month, the percentage for the corresponding calendar month set forth in Exhibit P.
“CPM Price” has the meaning set forth in Section 3.8(b). “CPM Soft Offer Cap” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission, or successor entity.
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“Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply.
“Cure Plan” has the meaning set forth in Section 11.1(b)(iii). “Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice to a Party, including an Operating Instruction (as defined in the CAISO Tariff), to curtail deliveries of Facility Energy for the following reasons: (i) any System Emergency, (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, which jeopardizes CAISO’s electric system integrity or the integrity of other systems to which CAISO is connected, or (iii) in response to an Energy oversupply or potential Energy oversupply, and Seller or the SC for the Facility submitted a Self-Schedule for the MWhs curtailed during the relevant time period; (b) a curtailment ordered by a Transmission Provider for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, including a System Emergency, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize a Transmission Provider’s electric system integrity or the integrity of other systems to which a Transmission Provider is connected, including a System Emergency;
(c) a curtailment ordered by CAISO or a Transmission Provider due to a Transmission System Outage; or
(d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the PTO.
“Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation or deliveries of Facility Energy from the Facility pursuant to a Curtailment Order; provided, the Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
“Daily Delay Damages” means an amount equal to (a) the Development Security amount required hereunder, divided by
“Daily Delay Damages Payment” has the meaning set forth in Exhibit B. “Damage Payment” means the amount to be paid by the Defaulting Party to the Non-Defaulting Party after a Terminated Transaction occurring prior to the Commercial Operation Date, in a dollar amount as set forth in Section 11.3(a).
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“Day-Ahead Forecast” means the amount of Energy expected to be generated by the Facility and delivered to Buyer at the Delivery Point, net of all Electrical Losses and subject to the Hourly Delivery Cap, for each hour of the immediately succeeding day in accordance with Seller’s obligations under this Agreement, based on a forecast from the Approved Forecast Vendor using a forecasting methodology to determine the potential generation of the Facility as a function of Available Capacity, wind speed and direction, wind turbine power curves and other pertinent data (including data related to Curtailment Orders), for the period of time, consistent with Prudent Operating Practice; provided, a Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include non-binding forecasts for the immediately succeeding day, each succeeding non-Business Day and the next Business Day.
“Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff. “Deemed Delivered Energy” means the difference of (i) the Market Curtailment Max Energy, minus (ii) the amount of Facility Energy delivered to the Delivery Point during the Market Curtailment Period; provided, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0) MWh.
“Deemed Delivered RA” means, for any month, the amount of Resource Adequacy Benefits expressed in kW that Seller would have delivered to Buyer, but for Buyer’s actions or inactions (including, until such time as the Facility receives a Deliverability Allocation from the CAISO, failure to obtain Import Capability sufficient to allow for the importation of such capacity into the CAISO). If (i) Seller submits a Supply Plan to the CAISO in accordance with the requirements of this Agreement by the applicable Showing Deadline and is otherwise in compliance with Section 3.7, but (ii) the CIRA Tool shows that Seller’s Supply Plan has not been accepted by the CAISO through no fault of Seller, and (iii) Seller uses commercially reasonable efforts to resolve any failure by the CAISO to approve such Supply Plan, then the Resource Adequacy Benefits included in such Supply Plan shall be considered Deemed Delivered RA. “Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Month” has the meaning set forth in Section 4.8(e). “Delay Damages” means Daily Delay Damages and Commercial Operation Delay Damages.
“Deliverability Allocation” means an allocation of Deliverability (as defined in the CAISO Tariff) to the Facility such that Buyer may receive all of the Resource Adequacy Benefits at the Delivery Point throughout the Delivery Term without any need to obtain an allocation of Maximum Import Capability or other import rights.
“Delivery Point” has the meaning set forth in Exhibit A.
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“Delivery Term” shall mean the period of Contract Years set forth on the Cover Sheet beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Cure Period” has the meaning set forth in Exhibit B. “Development Security” means, at Seller’s option, (a) cash or (b) one or more Letters of Credit, in aggregate in the amount specified for the Development Security on the Cover Sheet. “Disclosing Party” has the meaning set forth in Section18.2. “E-Tag” has the meaning set forth in the CAISO Tariff.
“Early Termination Date” has the meaning set forth in Section 11.2(a). “Effective Date” has the meaning set forth in Section 2.1(a). “Electrical Losses” means all transmission or transformation losses between the Facility’s Point of Interconnection to the PTO’s Transmission System and the Delivery Point, expressed in MWh; provided, Electrical Losses shall not include losses that are replaced with Energy provided by one or more Transmission Providers and paid for by Seller (at Seller’s sole expense) and that, when delivered to Buyer hereunder, meet the requirements for Product delivered hereunder, including PCC1 status.
“Eligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12(e) and California Public Resources Code Section 25741(a), as either code provision is amended or supplemented from time to time. “Energy” means electrical energy, measured in kilowatt-hours, megawatt-hours, or multiple units thereof.
“Energy Replacement Damages” has the meaning set forth in Section 4.7(a). “EPC Contract” means Seller’s engineering, procurement and construction contract(s) for the Facility.
“Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Exhibit C.
“Excused Capacity Reduction” means a reduction to the Capacity Attributes available from the Facility due to (a) System Emergency (b) Curtailment Order , (c) Force
Majeure Event, (d) Major Planned Outage, (e) Qualified Forced Facility Outage, or (f) Planned Outage; provided:
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a Planned Outage or Major Planned Outage for purposes of determining the treatment of such Qualified Forced Facility Outage as an Excused Capacity Reduction by including such election in its original Notice to Buyer of such Qualified Forced Facility Outage, and may change such election via a subsequent Notice to Buyer on or before the date that is thirty (30) days prior to an applicable Showing Deadline and no more often than once per Showing Month. “Execution Date” has the meaning set forth in the preamble hereto. “Expected Commercial Operation Date” has the meaning set forth on the Cover Sheet. “Expected Construction Start Date” has the meaning set forth on the Cover Sheet. “Expected Energy” means the quantity of Facility Energy (with associated Green Attributes) that Seller expects to be able to deliver to Buyer from the Facility during each Contract Year, which for each Contract Year is the quantity specified on the Cover Sheet; provided, (i) such amount shall be increased or decreased by Seller in a Notice to Buyer within sixty (60) days following the delivery by Seller of the final Installed Capacity Certificate in the form attached hereto as Exhibit I, and (ii) the amount of Expected Energy stated in such notice shall equal Buyer’s Share of the P50 amount set forth in the most wind resource assessment from a Licensed Professional Engineer (adjusted as necessary to reflect the Hourly Delivery Cap), but in no event shall the adjusted annual Expected Energy amount be more than higher or lower than the annual Expected Energy amount as set forth on the Cover Sheet; provided further, Seller shall use commercially reasonable efforts to notify Buyer of any change in the anticipated Expected Energy from the quantity specified on the Cover Sheet prior to the Commercial Operation Date.
“Expected Installed Capacity” the amount of Seller’s anticipated Installed Capacity, which as of the Effective Date equals 3,515.4 MW, and which may be reduced upon Notice to Buyer from time to time.
“Facility” means the wind-powered electricity generating facility described on the Cover Sheet and in Exhibit A, installed at the Site pursuant to the terms of the EPC Contracts, and including mechanical equipment and associated facilities and equipment required to deliver Facility Energy to the Delivery Point; provided, the “Facility” does not include any Shared Facilities.
“Facility Energy” means, in any Settlement Interval or Settlement Period, as applicable, the amount of Energy generated by the Facility and delivered to Buyer at the Delivery Point in accordance with Seller’s obligations under this Agreement, which such amount shall equal: (i) (a) Buyer’s Share of the Energy produced by the Facility and delivered to the Point of Interconnection, as measured in MWh by the Facility Meter, as such amount may be reduced as a result of a Curtailment Order, net of all Electrical Losses (without duplication of losses programmed into the Facility Meter, if any) and Station Use, or (b) if the Facility output is reduced, at Seller’s direction (and not, for example, as a result of a Forced Facility Outage) in any Settlement Interval or Settlement Period, as applicable, that is not during a Curtailment Period or Market Curtailment Period, then Facility Energy for such Settlement Interval or Settlement Period, as applicable, will
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instead be equal to Buyer’s Share of the Energy that the Facility would have been able to produce and deliver to the Point of Interconnection, if the Facility output was not so reduced, or (c) if the Facility output is reduced, at Seller’s direction in any Settlement Interval or Settlement Period, as applicable, during a Market Curtailment Period, then Facility Energy for such Settlement Interval or Settlement Period, as applicable, will instead be equal to the Market Curtailment Max Energy, minus any of such Market Curtailment Max Energy that is actually curtailed in connection with such Market Curtailment Period, which amount of curtailed Energy shall be calculated by Seller in a manner consistent with Prudent Industry Practices and, upon request from Buyer, demonstrated to Buyer’s reasonable satisfaction; and, in each case of (a), (b) and (c), subject to the Hourly Delivery Cap multiplied by the duration of the Settlement Interval or Settlement Period, as applicable, (as measured in hours); plus (ii) all Replacement Energy delivered as part of prospectively delivered Replacement Product pursuant to Section 4.7(b). “Facility Meter” means one or more CAISO-approved revenue quality meters located inside the Facility’s Point of Interconnection switching station, together with a CAISO-approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Energy produced by the Facility net of Electrical Losses and Station Use. “FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Fifteen Minute Market” or “FMM” has the meaning set forth in the CAISO Tariff. “Financial Close” means Seller and/or one or more of its Affiliates has obtained debt and/or equity financing commitments from one or more Lenders sufficient to construct the Facility, including such financing commitments from Seller’s owner(s). “Fitch” means Fitch Ratings, Inc., or its successor.
“Floor Price” means (a) for the period during which Seller is eligible to obtain PTCs and for that portion of the Facility Energy or Deemed Delivered Energy, as the case may be, to which PTC eligibility applies, the amount, on a dollar per MWh basis, equal to the Negative PTC Value, or (b) for all other periods and portions of Facility Energy or Deemed Delivered Energy, zero dollars per MWh ($0/MWh), subject to clause (b)(iii) of Exhibit D. “Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means (i) an unexpected failure of one or more components of the Facility (including subsequent outages to remediate such unexpected failure), or (ii) the unexpected removal from service of one or more components of the Facility, which removal from service is required to prevent or limit imminent harm to or loss of life or property, or prevent imminent loss of or damage to the Facility or the Transmission System, in each case that prevents Seller from generating Energy and/or making Energy from the Facility available at the Delivery Point, and that is not the result of a Force Majeure Event.
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“Forecasted Product” has the meaning set forth in Section 4.3(b). “Future Environmental Attributes” means any and all Green Attributes that become recognized under applicable Law after the Effective Date (as defined in the Original Agreement) (and not before the Effective Date (as defined in the Original Agreement)), notwithstanding the last sentence of the definition of “Green Attributes” herein. Future Environmental Attributes do not include Tax Credits associated with the construction or operation of the Facility, or other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation. “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining the economic benefit to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., SP-15), all of which should be calculated for the remaining Contract Term, and includes the value of Green Attributes and Capacity Attributes.
“Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO, WREGIS, and the CPUC; provided, “Governmental Authority” shall not in any event include any Party. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled (including under the RPS regulations and/or under any and all other international, federal, regional, state or other law, rule, regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision, program (including any voluntary compliance or membership program), competitive market or business method (including all credits, certificates, benefits, and emission measurements, reductions, offsets and allowances related thereto)), attributable to the generation from the Facility and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; and (3) the reporting rights to such avoided emissions, such as Green Tag Reporting Rights. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) Tax Credits associated with the construction or operation of
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the Facility and other financial incentives in the form of credits, reductions, or allowances associated therewith, or (iii) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. Green Attributes under the preceding definition are limited to Green Attributes that exist under applicable Law as of the Effective Date (as defined in the Original Agreement).
“Green Tag Reporting Rights” means the right of a purchaser of renewable energy to report ownership of accumulated Green Tags in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules. “Green Tags” means a unit accumulated on a MWh basis where one (1) represents the Green Attributes associated with one (1) MWh of Facility Energy. “Green-e Certified” means the Green Attributes provided to Buyer pursuant to this Agreement are certified under the Green-e Energy National Standard. “Green-e Energy National Standard” means the Green-e Renewable Energy Standard for Canada and the United States (formerly Green-e Energy National Standard) version 4.2, updated April 27, 2023, as may be further amended from time to time. “Guaranteed Capacity” means the portion of the generating capacity of the Facility, as measured in MW, that Seller commits to install pursuant to this Agreement, as set forth on the Cover Sheet.
“Guaranteed Commercial Operation Date” has the meaning set forth on the Cover Sheet, subject to extension pursuant to Exhibit B.
“Guaranteed Construction Start Date” has the meaning set forth on the Cover Sheet, subject to extension pursuant to Exhibit B.
“Guaranteed Energy Production” has the meaning set forth in Section 4.7(a). “Guaranteed Installed Capacity” means, as of any date, the total installed generating nameplate capacity of the Facility, as measured in MW, with respect to which Seller has commenced and is obligated to continue deliveries of Energy (not including test energy) and associated Green Attributes and/or resource adequacy benefits produced by or associated with such generating nameplate capacity to purchasers under power purchase agreements or similar long-term offtake agreements with third parties; provided that (a) in determining whether each of CAISO Commercial Operation and Commercial Operation has occurred and (b) on and after the Commercial Operation Date, the Guaranteed Installed Capacity shall include the Guaranteed Capacity.
“Guaranteed RA Amount” means a guaranteed amount of Resource Adequacy Benefits equal to Buyer’s Share of the Facility’s Net Qualifying Capacity, which guaranteed amount of
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Resource Adequacy Benefits shall be subject to reduction by the amount Resource Adequacy Benefits available from the Facility are reduced due to Excused Capacity Reductions; provided, for the purposes of the definition of “Guaranteed RA Amount”, “Guarantor” means any Person that (a) is an Affiliate of Seller, or other third party reasonably acceptable to Buyer, (b) has a Credit Rating of BBB- or better from S&P or a Credit Rating of Baa3 or better from Moody’s, (c) is incorporated or organized in a jurisdiction of the United States and is in good standing in such jurisdiction, and (d) executes and delivers a Guaranty for the benefit of Buyer.
“Guaranty” means a guaranty from a Guarantor provided for the benefit of Buyer substantially in the form attached as Exhibit M, or as reasonably acceptable to Buyer. “Hourly Delivery Cap” means the maximum delivery rate of Energy and associated Renewable Energy Credits and Green Tags delivered to the Delivery Point and sold to Buyer in any given hour under this Agreement, which amount shall be equal to Buyer’s Share multiplied by 2,131 MW.
“Imbalance Energy” means the amount of Energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Import Capability” means that portion of the Maximum Import Capability allocated by the CAISO that is necessary to support the importation of Resource Adequacy Benefits from the Facility into the CAISO market in an amount equal to the Guaranteed RA Amount. “Indemnified Party” has the meaning set forth in Section 16.1. “Indemnifying Party” has the meaning set forth in Section 16.1. “Initial Synchronization” means the commencement of Trial Operations (as defined in the CAISO Tariff).
“Installed Capacity” means the nameplate capacity of the Facility at the Point of Interconnection, as evidenced by a certificate from a Licensed Professional Engineer substantially in the form attached as Exhibit I hereto, as it may be updated from time to time by delivery of a subsequent certificate from a Licensed Professional Engineer substantially in the form attached as Exhibit I hereto solely as permitted pursuant to Section 2(a) of Exhibit B.
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“Inter-SC Trade” has the meaning set forth in the CAISO Tariff. “Interconnection Agreement” means the interconnection agreement entered into by Seller or an Affiliate pursuant to which the Facility will be interconnected with the PTO’s Transmission System, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. “Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the PTO’s Transmission System in accordance with the Interconnection Agreement. “Interest Rate” has the meaning set forth in Section 8.2. “Intertie” has the meaning set forth in the CAISO Tariff. “IP Indemnity Claim” has the meaning set forth in Section 16.1(b). “ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code of 1986.
“Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.).
“Joint Powers Agreement” means that certain Joint Powers Agreement dated June 27, 2017, as amended from time to time, under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“kW” means kilowatts in alternating current, unless expressly stated in terms of direct current.
“kWh” means a kilowatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
“Lender” means, collectively, any Person (a) providing senior or subordinated construction, interim, back leverage or long-term debt, equity or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Facility, whether that financing or refinancing takes the form of private debt (including back-leverage debt), equity (including tax equity), public debt or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller and/or its Affiliates, and any trustee or agent or similar representative acting on their behalf, (b) providing interest rate
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or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations and/or (c) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation of “stable” from Moody’s, or from an issuer otherwise acceptable to Buyer in its sole discretion, in a form substantially similar to the letter of credit set forth in Exhibit K, or as reasonably acceptable to Buyer.
“Licensed Professional Engineer” means either (i) (ii)
(iii) the independent engineer retained by the Lenders, or on their behalf under customary terms and conditions, in connection with a financing of the Facility, which engineer, or employee or principal thereof (a) is licensed to practice engineering in New Mexico, (b) has training and experience in the power industry specific to the technology of the Facility, (c) is not a representative of a consultant, engineer, contractor, designer or other individual involved in the development of the Facility or of a manufacturer or supplier of any equipment installed at the Facility other than as the independent engineer for the Lenders, and (d) is licensed in an appropriate engineering discipline for the required certification being made, or (iv) a person acceptable to Buyer in its reasonable judgment.
“Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining economic loss to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., SP-15), all of which should be calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes, and Renewable Energy Incentives.
“Lost Output” has the meaning set forth in Section 4.7(a). “Major Equipment Failure” means a failure of (i) one of the Facility’s (the procurement of which involves a
similarly long lead time), or (ii) no less than of the Facility’s or (iii) no less than of the Facility’s
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“Major Planned Outage” means a Planned Outage which results in a reduction of more than to the amount of Resource Adequacy Benefits provided to Buyer from the Facility in any Showing Month.
“Market Curtailment Max Energy” means Buyer’s Share of the total Energy the Facility would have been able to deliver to the Point of Interconnection during a Market Curtailment Period, subject to the Hourly Delivery Cap, if the output of the Facility was not reduced at Seller’s direction, which amount shall be equal to the Real-Time Forecast (of the hourly expected Facility Energy) provided pursuant to Section 4.3(d) for the period of time during such Market Curtailment Period.
“Market Curtailment Period” means the period of time during a Settlement Interval or Settlement Period, as applicable, in which the LMP in the Day-Ahead Market and the Real-Time Market at the Delivery Point are less than the Floor Price; provided, if applicable, the Market Curtailment Period shall be inclusive of the time required for the Facility to ramp down to implement such curtailment (if any) and ramp up following such curtailment (if any) in accordance with the Operating Restrictions.
“Material Permits” means all permits required for Seller to commence construction that have not been obtained as of the Effective Date (as defined in the Original Agreement), as set forth on Exhibit S.
“Maximum Import Capability” has the meaning set forth in the CAISO Tariff, and includes any replacement or successor method implemented by the CAISO with respect to the ability of generating units that are external to the CAISO Balancing Authority Area to provide Resource Adequacy Benefits.
“Milestones” means the significant development activities and dates associated therewith set forth on the Cover Sheet.
“Monthly Forecast” has the meaning set forth in Section 4.3(b). “Moody’s” means Moody’s Investors Service, Inc., or its successor. “MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Period or Settlement Interval, the LMP at the Delivery Point in the applicable CAISO market that is less than zero dollars per MWh ($0/MWh). “Negative PTC Value” means the amount, on a dollar per MWh basis, equal to the PTC value that Seller is eligible to earn in respect of Energy from the Facility at the time of calculation, multiplied by negative one (-1).
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“NERC” means the North American Electric Reliability Corporation or any successor entity.
“Net Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. “Non-Summer Month” means any month that is not a Summer Month, commencing as of the month in which the RA Guarantee Date occurs and throughout the Delivery Term. “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail).
“Operating Restrictions” means the operational characteristics of the Facility set forth in Exhibit U.
“Original Agreement” has the meaning set forth in the Recitals hereto. “Pacific Prevailing Time” means the prevailing standard time or daylight savings time, as applicable, in the Pacific time zone.
“Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains the Transmission System or distribution lines and associated facilities and/or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected, as set forth in Exhibit A.
“Party” has the meaning set forth in the Preamble.
“Performance Measurement Period” means the prior 24-month period measured from the end of each Contract Year commencing in the second Contract Year. “Performance Security” means (i) cash, (ii) one or more Letters of Credit, and/or (iii) a Guaranty, in aggregate in the amount specified for the Performance Security on the Cover Sheet. “Permitted Transferee” means (i) any Affiliate of Seller or (ii) any entity that satisfies, or is controlled by another Person that satisfies, the following requirements:
(a) A tangible net worth plus Unfunded Capital Commitments of not less than or a Credit Rating of at least BBB- from S&P, BBB- from Fitch, or Baa3 from Moody’s; and
(b) At least two (2) years of experience in the ownership and operations of utility-scale wind-powered electricity generation facilities, or has retained a third-party with such experience to operate the Facility.
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“Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“Planned Outage” means a period during which the Facility is either in whole or in part not capable of providing service due to planned maintenance that has been scheduled in advance in accordance with Sections 4.6(a) and 4.6(c).
“Point of Interconnection” has the meaning set forth in Exhibit A. “Portfolio Content Category” means PCC1, PCC2 or PCC3, as applicable. “Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Content Category 2” or “PCC2” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(2), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Content Category 3” or “PCC3” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(3), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Financing” means any debt incurred by an Affiliate of Seller that is secured only by a portfolio.
“Portfolio Financing Entity” means any Affiliate of Seller that incurs debt in connection with any Portfolio Financing.
“Prevailing Wage” has the meaning set forth in Section 13.4. “Product” has the meaning set forth on the Cover Sheet. “Production Tax Credits” or “PTCs” means production tax credit under Section 45 of the Internal Revenue Code as in effect from time-to-time throughout the Contract Term or any successor or other provision providing for a federal tax credit determined by reference to production of renewable energy for which Seller, as the owner of the Facility, is eligible. “Progress Report” means a progress report including the items set forth in Exhibit E. “Project Bifurcation” has the meaning set forth in Section 2.6.
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“Project Transition” has the meaning set forth in Section 2.6. “Prudent Operating Practice” means (a) the applicable practices, methods and acts required by or consistent with applicable Laws and reliability criteria, and otherwise engaged in or approved by a significant portion of the electric industry during the relevant time period with respect to grid-interconnected, utility-scale wind-powered electricity generating facilities in the Western United States, and (b) any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the industry with respect to grid-interconnected, utility-scale wind-powered electricity generating facilities in the Western United States. Prudent Operating Practice shall include compliance with applicable Laws, applicable safety and reliability criteria, and the applicable criteria, rules and standards promulgated in the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules and standards of any successor organizations. “PTC Amount” means the amount, on a dollar per MWh basis, equal to the Production Tax Credits that Seller would have earned in respect of Energy from the Facility at the time, grossed up on an after-tax basis at the then-highest marginal combined federal and New Mexico state corporate tax rate ( ), but failed to earn
as a result of Market Curtailment Period, which amount will be calculated by reference to the amount of Deemed Delivered Energy and the number of the Facility’s wind turbines that are eligible to receive Production Tax Credits at the time of determination. “Qualified Forced Facility Outage” means a Forced Facility Outage with respect to which a Licensed Professional Engineer has certified: (i) that the conditions for a Forced Facility Outage have been met (provided, in the event of a removal from service of a component of the Facility as set forth in clause (ii) of the definition of “Forced Facility Outage”, such removal from service must occur no later than following the discovery by Seller of the need for such removal), (ii) that such Forced Facility Outage was not caused by Seller’s fault or negligence, including Seller’s failure to follow Prudent Operating Practices, and (iii) the estimated duration of such Forced Facility Outage.
“Qualified Forced Facility Outage Limit” means
“RA Compliance Showing” means the RAR compliance or advisory showings (or similar or successor showings) an entity is required to make to the CAISO pursuant to the CAISO Tariff,
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to the CPUC (and, to the extent authorized by the CPUC, to the CAISO) pursuant to the Resource Adequacy Rulings, or to any Governmental Authority.
“RA Deficiency Amount” means the liquidated damages payment that Seller shall pay to Buyer for an applicable RA Shortfall Month as calculated in accordance with Section 3.8(b). “RA Deficiency Cap” shall mean, for each Showing Month, the corresponding dollar amount set forth below:
RA Deficiency Cap
Showing Month $/kW-month
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
“RA Guarantee Date” means the Commercial Operation Date; provided, if the Facility is not delivering Resource Adequacy Benefits to Buyer for the Showing Month in which the Commercial Operation Date occurs, the RA Guarantee Date shall be the earlier of (i) the first day of the Showing Month in which the Facility is delivering Resource Adequacy Benefits to Buyer, and (ii) the first day of the Showing Month following the date that is after the Commercial Operation Date.
“RA Plan” means each of (a) Buyer’s monthly or annual “Resource Adequacy Plan” (as defined in the CAISO Tariff) filed with the CAISO, and (b) Buyer’s monthly or annual resource adequacy plans filed with the CPUC.
“RA Shortfall Amount” has the meaning set forth in Section 3.8(b). “RA Shortfall Month” means, for purposes of calculating an RA Deficiency Amount under Section 3.8(b), any Showing Month, commencing with the Showing Month that includes the RA Guarantee Date, during which the RA Shortfall Amount is greater than zero (0) kW. “RA Substitute Capacity” has the meaning set forth in the CAISO Tariff.
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“Real-Time Forecast” has the meaning set forth in Section 4.3(d). “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Real-Time Price” means the Resource-Specific Settlement Interval LMP as defined in the CAISO Tariff. If there is more than one applicable Real-Time Price for the same period of time, Real-Time Price shall mean the price associated with the smallest time interval. “REC Price” means the prevailing market price (expressed in $/MWh) for RECs meeting the RPS requirements for Portfolio Content Category 1, determined by averaging quotes provided by Buyer from three (3) unaffiliated brokers.
“Receiving Party” has the meaning set forth in Section 18.2. “Recurring Certificate Transfers” has the meaning set forth in the WREGIS Operating Rules.
“Remedial Action Plan” has the meaning set forth in Section 2.4. “Renewable Energy Credit” or “REC” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.
“Renewable Energy Incentives” means: (a) all federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including credits under Sections 38, 45, 46 and 48 of the Internal Revenue Code of 1986, as amended); (b) any federal, state, or local grants, subsidies or other like benefits relating in any way to the Facility, including a cash grant available under Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, in lieu of federal Tax credits or any similar or substitute payment available under subsequently enacted federal legislation; and (c) any other form of incentive relating in any way to the Facility that is not a Green Attribute, Future Environmental Attribute, or Capacity Attribute.
“Renewable Rate” has the meaning set forth on the Cover Sheet. “Replacement Energy” has the meaning set forth in Exhibit G. “Replacement Green Attributes” has the meaning set forth in Exhibit G. “Replacement Product” has the meaning set forth in Exhibit G. “Replacement RA” means resource adequacy benefits from the Facility or from another resource, in each case that are reasonably comparable to the Resource Adequacy Benefits, delivered to the Delivery Point or to another point within the CAISO grid and provided by Seller to Buyer in accordance with Section 3.7(e).
“Requested Confidential Information” has the meaning set forth in Section 18.2.
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“Resource Adequacy Benefits” means the rights and privileges attached to Buyer’s Share of the Capacity Attributes available from the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and shall include flexible capacity and any local, zonal or otherwise locational attributes associated with the Facility, if any.
“Resource Adequacy Requirements” or “RAR” means the resource adequacy requirements applicable to an entity as established by the CAISO pursuant to the CAISO Tariff, by the CPUC pursuant to the Resource Adequacy Rulings, or by any other Governmental Authority.
“Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024, 14-06-050, 15-06-063, 16-06-045, 17-06-027, 18-06-030, 18- 06-031, 19-02-022, 19-06-026, 19-10-021, 20-01-004, 20-03-016, 20-06-002, 20-06-028, 20-06- 031, 20-12-006, 21-06-029, 21-07-014, 22-03-034, 22-06-050, 22-12-028, 22-08-039, 23-04-010 and any other existing or subsequent ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Contract Term. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of S&P Global Inc.) or its successor.
“Schedule” has the meaning set forth in the CAISO Tariff, and “Scheduled” and “Scheduling” have a corollary meaning.
“Scheduled Energy” means the Facility Energy scheduled by Seller that clears under the applicable CAISO market based on the final Day-Ahead Schedule, FMM Schedule (as defined in the CAISO Tariff), and/or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time implemented in accordance with the CAISO Tariff. “Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
“Scheduling Point” has the meaning set forth in the CAISO Tariff. “Security Interest” has the meaning set forth in Section 8.9. “Self-Schedule” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning set forth on the Cover Sheet.
“Seller’s WREGIS Account” has the meaning set forth in Section 4.8(a).
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“Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages. “Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy from the Facility (which is excluded from Shared Facilities) to the Point of Interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Shared Facilities Agreements” has the meaning set forth in Section 6.3. “Showing Deadline” means, for any Showing Month, the deadline for submitting a Supply Plan or RA Plan, as applicable, applicable to that Showing Month, as established by the CAISO. “Showing Month” shall be the calendar month of the Delivery Term, commencing with the Showing Month that contains the RA Guarantee Date, that is the subject of the RA Compliance Showing, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, pursuant to the CAISO Tariff and Resource Adequacy Rulings in effect as of the Effective Date (as defined in the Original Agreement), the monthly RA Compliance Showing made in June is for the Showing Month of August. “Site” means the real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date certificate in the form of Exhibit J to Buyer; provided, any such update to the Site that includes real property that was not originally contained within the Site boundaries described in Exhibit A shall be subject to Buyer’s approval of such updates in its sole discretion. “Site Control” means that Seller: (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site. “SPTO” has the meaning set forth in the Recitals hereto. “SP-15” means the Existing Zone Generation Trading Hub for Existing Zone region SP15 as set forth in the CAISO Tariff.
“Station Use” means the Energy (including Energy produced by the Facility) that is used within the Facility to power the lights, motors, temperature control systems, control systems and
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other electrical loads that are necessary for operation of the Facility, and/or that is consumed within the Facility’s electric energy distribution system as losses. “Summer Month” means any of June, July, August September and October, commencing as of the month in which the RA Guarantee Date occurs and throughout the Delivery Term. “SunZia North” means that portion of the Facility identified as SunZia Wind North in Exhibit A.
“SunZia South” means that portion of the Facility identified as SunZia Wind South in Exhibit A.
“SunZia Transmission Line” means that certain 3,000-MW high-voltage (+/-525-kV) transmission line originating at the Point of Interconnection in New Mexico and terminating near Phoenix, Arizona. The western terminus of the line will connect to the 500-kV Pinal Central Substation.
“Supply Chain Code” has the meaning in Exhibit Q.
“Supply Plan” has the meaning set forth in the CAISO Tariff, as applicable to the Guaranteed RA Amount from the Facility.
“System Emergency” means any condition that requires, as determined and declared by CAISO or a Transmission Provider, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) to preserve Transmission System reliability. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Tax Credits” means the PTC, ITC and any other state, local and/or federal production tax credit, depreciation benefit, tax deduction and/or investment tax credit specific to the production of renewable energy and/or investments in renewable energy facilities. “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3(b). “Test Energy” means (1) the amount of Energy generated by the Facility and delivered to Buyer at the Delivery Point, equal to Buyer’s Share of Energy delivered from the Facility to the Point of Interconnection, as measured in MWh by the Facility Meter, subject to the Hourly Delivery Cap, and as such amount may be reduced as a result of a Curtailment Order(a)
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commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Energy to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to operate in parallel with the PTO’s system, and (2) the associated Green
Attributes, including RECs, that meet the RPS requirements for Portfolio Content Category 1. “Test Energy Rate” has the meaning set forth in Section 3.6. “Transmission Provider” means any entity that (i) owns, operates and maintains transmission or distribution lines and associated facilities and/or has entitlements to use certain transmission or distribution lines and associated facilities, and (ii) transmits or transports the Product on behalf of Seller or Buyer to or from the Delivery Point, including the Participating Transmission Owner.
“Transmission System” means the transmission facilities operated by the Transmission Providers, now or hereafter in existence, which provide energy transmission service upstream to or downstream from the Delivery Point.
“Transmission System Outage” means an outage on a Transmission System, other than a System Emergency, that prevents (i) Buyer from receiving, or (ii) Seller from delivering, Energy at the Delivery Point.
“Ultimate Parent” means Pattern Energy Group LP.
“Unfunded Capital Commitments” means as of any date of determination, the aggregate amount of all currently-available but undrawn capital obligated to be provided to a Person by investor(s) pursuant to binding, written agreements, not subject to the satisfaction of any conditions precedent to such funding outside the control of such Person. “Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.
1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
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(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Article, Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement shall mean such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the terms “include” and “including” mean “include or including (as applicable) without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided;
(h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars;
(k) the expression “and/or” when used as a conjunction shall connote “any or all of”;
(l) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating
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Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(m) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
ARTICLE 2
TERM; CONDITIONS PRECEDENT
2.1 Contract Term.
(a) Conditions Precedent to Contract Term. This Agreement shall become effective on the date on which the Interconnection Point becomes part of the CAISO Balancing Authority Area (such date, the “Effective Date”), as confirmed to Seller or an Affiliate of Seller by the CAISO in writing, and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”); provided, subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.2.
Seller shall promptly provide Notice to Buyer of the Effective Date. Prior to the Effective Date, the Original Agreement shall remain in full force and effect, unmodified by this Agreement. Any amounts owed or obligations accrued by either Party under the Agreement prior to the Effective Date which have not been paid or otherwise satisfied as of the Effective Date shall survive under this Agreement after the Effective Date until paid or otherwise satisfied. (b) Continuing Provisions. Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination.
The confidentiality obligations of the Parties under Article 18 shall remain in full force and effect for two (2) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for one (1) year following the termination of this Agreement.
2.2 Conditions Precedent to Delivery Term. The Delivery Term shall not commence until Seller completes to Buyer’s reasonable satisfaction each of the following conditions, which Buyer shall, if submitted by Seller within thirty (30) days of the expected Commercial Operation Date, review and either accept or provide Notice stating in reasonably detail the basis for Buyer’s rejection thereof within five (5) Business Days of receipt thereof. If there is a dispute between Buyer and Seller as to whether Commercial Operation has occurred, then either Party may elect to immediately refer the matter to the dispute resolution procedures set forth in Article 15, and all payments of Commercial Operation Delay Damages from and after the date such dispute is initiated shall be tolled until the dispute is resolved. If the dispute is resolved in favor of Seller, the Commercial Operation Date shall be the date proposed by Seller prior to such dispute and no Commercial Operation Delay Damages shall be owed from Seller from and after such date, and if the dispute is resolved in favor of Buyer, Commercial Operation Delay Damages (if any) shall be due as set forth in Exhibit B.
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(a) Seller shall have delivered to Buyer certificates from a Licensed Professional Engineer substantially in the form of Exhibit H and Exhibit I; (b) A Participating Generator Agreement (as defined in the CAISO Tariff) between Seller and CAISO and a Meter Service Agreement for CAISO Metered Entities (as defined in the CAISO Tariff) between CAISO and Seller (if, with respect to each such agreement, it is required under the CAISO Tariff or for Seller to meet its obligations under this Agreement), shall have been executed and delivered and be in full force and effect and a copy of such agreements delivered to Buyer;
(c) All applicable regulatory authorizations, approvals and permits necessary for the operation of the Facility have been obtained and all conditions thereof that are capable of being satisfied on the Commercial Operation Date have been satisfied and shall be in full force and effect;
(d) Seller has received CEC Precertification of the Facility (and reasonably expects to receive final CEC Certification and Verification for the Facility in no more than one hundred eighty (180) days from the Commercial Operation Date); (e) Seller has obtained CAISO Certification for the Facility; (f) Seller (with the reasonable participation of Buyer) shall have completed all applicable WREGIS registration requirements, including the completion and submittal of all applicable registration forms and supporting documentation, which may include applicable interconnection agreements, informational surveys related to the Facility, QRE service agreements, and other appropriate documentation required to effect Facility registration with WREGIS and to enable Renewable Energy Credit transfers related to the Facility within the WREGIS system;
(g) Seller has delivered the Performance Security to Buyer in accordance with Section 8.8;
(h) Seller has delivered to Buyer an officer’s certificate stating that Seller has not utilized any equipment or resources in connection with the construction, commissioning or testing of the Facility in violation of Section 2.3(b); (i) Seller has paid Buyer for all amounts due and owing by Seller under this Agreement as of the Commercial Operation Date, if any, including Delay Damages.
2.3 Development; Construction; Progress Reports.
(a) Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Construction Start Date, and (ii) each calendar month from the first calendar month following the Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a Progress Report and agree to regularly scheduled meetings between representatives of Buyer and Seller to review such reports and discuss
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Seller’s construction progress. The form of the Progress Report is set forth in Exhibit E. Seller shall also provide Buyer with any reasonably requested documentation and additional information (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. Seller is solely responsible for the design and construction of the Facility, including the location of the Site, the Facility layout, and the selection and procurement of the equipment comprising the Facility. (b) Seller shall use commercially reasonable efforts to ensure that all materials, products and components that are used in constructing, installing and operating the Facility throughout the Contract Term and provided by Seller and Seller’s contractors and suppliers in direct contract with Seller or Seller’s Affiliates shall be in compliance with the Supply Chain Code.
Seller shall comprehensively implement due diligence procedures for its and its Affiliate’s first-tier subcontractors and suppliers, and other subcontractors and suppliers to the extent reasonably practicable. Seller shall notify Buyer as soon as reasonably practicable if it becomes aware of any breach of its obligations under this Section 2.3(b).
(c) Buyer shall have the right, at Buyer’s sole expense, to retain an independent auditor to audit Seller’s compliance with the requirements of Section 2.3(b).
2.4 Remedial Action Plan. If Seller misses a Milestone by more than ninety (90) days with respect to any Milestone prior to the Guaranteed Construction Start Date, and thirty (30) days with respect to the Guaranteed Construction Start Date or any Milestone after the Guaranteed Construction Start Date, in each case except as the result of Force Majeure Event or Buyer Default, in addition to updates provided to Buyer via Progress Reports delivered pursuant to Section 2.3, Seller shall submit to Buyer, within ten (10) Business Days of the end of such ninety (90)- or thirty (30)-day period, as applicable, following the Milestone completion date, a remedial action plan (“Remedial Action Plan”), which will describe in detail any delays (actual or anticipated) beyond the scheduled Milestone dates, including the cause of the delay (e.g., governmental approvals, financing, property acquisition, design activities, equipment procurement, project construction, interconnection, or any other factor), Seller’s detailed description of its proposed course of action to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date, as it may be extended; provided, delivery of any Remedial Action Plan shall not relieve Seller of its obligation to provide Remedial Action Plans with respect to any subsequent Milestones and to achieve the Guaranteed Commercial Operation Date in accordance with the terms of this Agreement. Subject to the provisions of Exhibit B, so long as Seller complies with its obligations under this Section 2.4, Seller shall not be considered in default of its obligations under this Agreement solely as a result of missing any Milestone.
2.5 Facility Ownership. Buyer acknowledges that, as of the Commercial Operation Date, the Facility will be owned by one or more of Seller’s Affiliates (each an “Owner”) that will be, in turn, wholly owned by Seller, and the Facility will not be owned directly by Seller. As of the Commercial Operation Date, Seller will have, and throughout the Contact Term Seller will maintain, such agreements with Seller’s Affiliates and other instruments as are necessary for Seller to perform its obligations under this Agreement. References to Seller in this Agreement will include, as the context requires, Owners (including in respect of Seller performing the obligation
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or causing Owners to perform the obligation). Seller will maintain its one hundred percent (100%) ownership of the Owners throughout the Delivery Term and will not sell or transfer Owners without Buyer’s consent, which consent shall not be withheld or delayed unreasonably.
2.6 Project Bifurcation or Transition. Notwithstanding the provisions of Section 2.5, Seller may, at any time during the Contract Term, elect by Notice to Buyer to both terminate this Agreement and either (x) cause each Owner to simultaneously enter into a Replacement PPA with Buyer in respect of the portion of the Facility (i.e., the portions of the Facility known as SunZia Wind North or SunZia Wind South) owned by such Owner (a “Project Bifurcation”), or (y) cause the Owner of SunZia Wind South to enter into a Replacement PPA with Buyer solely in respect of its portion of the Facility (a “Project Transition”). Each Replacement PPA will be on the same terms and conditions as those set forth in this Agreement, except for those administrative changes that are necessary to effectuate the separation or transition of this Agreement into Replacement PPA(s) with the Owner or Owners, as applicable. Among the provisions that are to be changed are:
(a) the identity of Seller throughout shall be changed to reflect the identity of the applicable Owner;
(b) subject to the potential adjustment of the Installed Capacity pursuant to the terms of this Agreement or any Replacement PPA, the nameplate capacity of (i) each Owner’s portion of the Facility, in the case of a Project Bifurcation, or (ii) SunZia Wind South in the case of a Project Transition (either the actual Installed Capacity, if the transition to the Replacement PPA(s) occurs after the final Installed Capacities have been determined under this Agreement, or the anticipated installed capacity at the time of the Project Bifurcation or Project Transition, as applicable, if otherwise) shall be inserted in “Description of Facility” in the Cover Sheet; (c) Exhibit A (Facility Description) shall be revised to reflect (i) each Owner’s portion of the Facility in the case of a Project Bifurcation, or (ii) a description of SunZia Wind South in the case of a Project Transition; and
(d) Exhibit N (Notices) shall be revised to reflect the appropriate information for each Owner signatory to the relevant Replacement PPA, as applicable. (e) All instances of “2,131 MW” in this Agreement shall be changed in each Replacement PPA, on a pro rata basis, to reflect the installed capacity of each Owner’s portion of the Facility relative to, as applicable, either the actual Installed Capacity, if the Project Bifurcation or Project Transition, as applicable, occurs after the final Installed Capacity has been determined, or the anticipated installed capacity at the time of the Project Bifurcation or Project Transition, as applicable, if otherwise.
(f) In the case of a Project Bifurcation:
(i) the amount of the Guaranteed Capacity in the Cover Sheet of each Replacement PPA shall be changed, on a pro rata basis, to reflect the installed capacity of each Owner’s portion of the Facility, as
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applicable (either the actual Installed Capacity, if the transition to the Replacement PPAs occurs after the final Installed Capacities have been determined, or the anticipated installed capacity at the time of the transition, if otherwise); provided that, for the avoidance of doubt, the sum of the Guaranteed Capacities in the Cover Sheet in each Replacement PPA shall equal the Guaranteed Capacity in the Cover Sheet in this Agreement; and
(ii) subject to the potential adjustment of the Expected Energy pursuant to the terms of this Agreement or any Replacement PPA, the amount of the Expected Energy in the Cover Sheet shall be reduced on a pro rata basis to reflect the nameplate capacity and net capacity factor of each Owner’s portion of the Facility (either the actual Installed Capacity and net capacity factor when the final Installed Capacities have been determined or, if the final Installed Capacities have not yet been determined, the anticipated nameplate capacity and net capacity factor), as determined by Seller in its reasonable discretion; provided, the sum of the Expected Energy amounts in the Cover Sheet in each Replacement PPA shall equal the Expected Energy amount in the Cover Sheet in this Agreement;
(g) In the case of a Project Transition:
(i) subject to the potential adjustment of the Guaranteed Capacity pursuant to the terms of this Agreement or any Replacement PPA, the amount of the Guaranteed Capacity in the Cover Sheet of the Replacement PPA shall equal the amount of the Guaranteed Capacity in the Cover Sheet in this Agreement;
(ii) subject to the potential adjustment of the Expected Energy pursuant to the terms of this Agreement or any Replacement PPA, the amount of the Expected Energy in the Cover Sheet of the Replacement PPA shall equal the amount of the Expected Energy in the Cover Sheet in this Agreement as of the Execution Date;
(iii) the site for the facility set forth in the Replacement PPA shall not be materially different from the site set forth for SunZia South in Exhibit A;
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(v) the “Ultimate Parent” definition shall identify a Person that is not an Affiliate of the Person that owns SunZia North upon the effective date of the Project Transition.
In addition: (1) subject to the potential adjustment of the Installed Capacity pursuant to the terms of this Agreement or any Replacement PPA, if the Installed Capacity has been determined in accordance with this Agreement as of the effective date of the Replacement PPA(s), the Installed Capacity shall be revised to reflect the corresponding amount of installed nameplate capacity associated with (i) each Owner’s portion of the Facility in the case of a Project Bifurcation, or (ii) the installed nameplate capacity of SunZia Wind South in the case of a Project Transition, (2) in the case of Project Bifurcation, contract values or requirements that are based on determinants that are changing as a result of such Project Bifurcation shall be adjusted on a pro rata basis under the Replacement PPAs to correspond to the changed determinants, including the amount of the Guaranteed Energy Production (which is set based on the Expected Energy) and the amount of required Development Security and Performance Security (which are each set based on the Guaranteed Capacity), and (3) Section 2.5 shall no longer apply and shall not be included in the Replacement PPA(s).
If Seller elects to consummate a Project Bifurcation or a Project Transition, Seller shall include in its Notice to Buyer drafts of each Replacement PPA, as applicable, and a draft agreement providing for the termination of this Agreement. Buyer shall, within ten (10) Business Days of its receipt of Seller’s Notice, provide by Notice to Seller any comments on the draft Replacement PPA(s), as applicable, and the termination agreement, and cooperate reasonably with Seller and the Owners to resolve any issues and enter into the Replacement PPA(s) and the termination agreement within thirty (30) days of Seller’s Notice. If the Replacement PPA(s) and the termination agreement are not executed within such thirty (30) days, the Parties shall resolve their differences under the dispute resolution procedures set forth in Article 15.
Upon execution of the Replacement PPA(s) and termination of this Agreement: (A) each Owner shall deliver to Buyer substitute Development Security or Performance Security, as applicable, and as may be necessary or convenient; (B) upon receipt of the substitute Development Security or Performance Security referenced in item (A) of this sentence (if any), Buyer shall return to Seller the Development Security or Performance Security, as applicable; (C) Buyer and the Owners shall, and the Owners shall cause Seller to, reasonably cooperate to implement any additional administrative actions that may be necessary to effectuate the Project Bifurcation or Project Transition (including, for example, in connection with WREGIS or CAISO); and (D) Seller shall have no further obligations to Buyer and Buyer shall have no further obligations to Seller, except for those obligations associated with the period of time prior to the termination of this Agreement.
ARTICLE 3
PURCHASE AND SALE
3.1 Purchase and Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term, Buyer shall purchase all the Product produced by or
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associated with the Facility at the Renewable Rate and in accordance with Exhibit C, and Seller shall supply and deliver to Buyer all the Product produced by or associated with the Facility. The sale by Seller and purchase by Buyer of Facility Energy hereunder shall be for resale; provided, no such re-sale or use shall relieve Buyer of any obligations hereunder. During the Delivery Term, Buyer shall have exclusive rights to offer, bid, or otherwise submit the Product, and/or any component thereof, from the Facility after the Delivery Point for resale in the market, and retain and receive any and all related revenues.
3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase from Seller, all Green Attributes attributable to the Facility Energy. Upon request of Buyer, Seller shall use commercially reasonable efforts to (a) submit, and receive approval from the Center for Resource Solutions (or any successor that administers the Green-e Certification process), for the Green-e tracking attestations and (b) support Buyer’s efforts to qualify the Green Attributes transferred by Seller as Green-e Certified.
3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period or Settlement Interval, as applicable, the amount of Facility Energy may deviate from the amounts thereof scheduled with the CAISO. Following the Commercial Operation Date, to the extent there are such deviations, any costs, liabilities or revenues from such imbalances shall be solely for the account of Seller as Scheduling Coordinator hereunder, except as expressly set forth in this Agreement.
3.4 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.
3.5 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date (as defined in the Original Agreement), environmental attributes anticipated to be sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date (as defined in the Original Agreement). Subject to the final sentence of this Section 3.5(a) and to Section 3.5(b), in such event, Buyer shall bear all costs associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Renewable Rate. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to alter the Facility or the operation of the Facility unless the Parties have agreed on all necessary terms
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and conditions relating to such alteration or change in operation and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration or change in operation. (b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs to Buyer, as set forth above; provided, the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.
3.6 Test Energy. No less than fourteen (14) days prior to the first day on which Test Energy is expected to be available from the Facility, Seller shall notify Buyer of the availability of the Test Energy. Seller shall sell, and Buyer shall purchase from Seller, all Test Energy on an as-available basis. As compensation for such Test Energy and associated Product, Buyer shall pay Seller an amount equal to (a) of the Renewable Rate
and (b
per MWh thereafter (if applicable) (the “Test Energy Rate”). The conditions precedent in Section 2.2 are not applicable to the Parties’ obligations under this Section 3.6.
3.7 Capacity Attributes.
(a) Throughout the Delivery Term and subject to Section 3.12, Seller grants, pledges, assigns and otherwise commits to Buyer all the Capacity Attributes from the Facility. (b) Throughout the Delivery Term and subject to Section 3.7(d) and Section
3.12, Seller shall perform all commercially reasonable actions necessary to ensure that the Facility qualifies to provide all Resource Adequacy Benefits to Buyer at the Delivery Point. Throughout the Delivery Term, and subject to Section 3.7(d) and Section 3.12, Seller hereby covenants and agrees to transfer all Resource Adequacy Benefits to Buyer. (c) For the duration of the Delivery Term, and subject to Section 3.12, Seller shall take all commercially reasonable actions, including complying with all applicable registration and reporting requirements, and execute all documents or instruments that are reasonable and necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement, including submitting Supply Plans in accordance with CAISO and CPUC requirements and the requirements of this Agreement. At least prior to the CAISO submission deadline for each annual RA Plan, and at least prior to the Showing Deadline for each monthly RA Plan
, Seller shall provide a non-binding Notice to Buyer presenting the Resource Adequacy Benefits that Seller expects to include in such Supply Plan for the next calendar year or Showing Month, including any Replacement RA Seller commits to provide pursuant to Section 3.7(e), if applicable; provided, if Seller becomes aware of any change to the Resource Adequacy Benefits that Seller is able to include in any monthly Supply Plan after delivering any such Notice, Seller shall provide a Notice to Buyer of any such change as soon as reasonably practicable,
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(d) Buyer acknowledges that during some or all of the Delivery Term, it will be required to take certain actions and obtain certain rights at the Delivery Point in order to make use of the Capacity Attributes associated with the Product, including: (a) at least until such time as the Facility receives a Deliverability Allocation from the CAISO, maintaining Import Capability necessary to import the Guaranteed RA Amount into the CAISO at the Delivery Point, (b) timely filing its RA Plans as required by the CAISO and the CPUC, and (c) obtaining any other rights or capacities that Buyer is required to obtain, or take any other action that Buyer is required to take, in order for Seller to provide or Buyer to make use of the Capacity Attributes of the Facility, in each case as may be required under applicable Law and as may change from time to time. To the extent Buyer does not or cannot maintain Import Capability (solely until such time as the Facility receives a Deliverability Allocation from the CAISO) or any other rights or capacities necessary to support the importation of the Guaranteed RA Amount into the CAISO or otherwise receive or utilize the Capacity Attributes, for reasons other than a Seller failure under this Agreement, including Seller’s failure to comply with applicable CPUC and CAISO requirements necessary to qualify the Facility as a Resource Adequacy Resource located within the CAISO Balancing Authority Area, the Capacity Attributes that are not delivered or that cannot be delivered (or that Buyer cannot make use of) shall constitute Deemed Delivered RA; provided, if Buyer is unable to obtain or utilize any portion of the Import Capability due to any allocation of Deliverability (as defined in the CAISO Tariff) to the Facility that is not a Deliverability Allocation and, as a result, Seller is unable to deliver to Buyer an amount of Resource Adequacy Benefits equal to the Guaranteed RA Amount, then such portion of the Capacity Attributes that are not delivered or that cannot be delivered (or that Buyer cannot make use of) shall not constitute Deemed Delivered RA but shall constitute a shortfall for which Seller owes to Buyer the RA Deficiency Amount.
If Seller anticipates that it will have any RA Deficiency Amounts in a Showing Month from and after the RA Guarantee Date, Seller may provide Replacement RA in the amount of (X) Guaranteed RA Amount
(f) Seller shall provide RA Substitute Capacity in accordance with applicable CAISO requirements in connection with Facility outages. Seller acknowledges and agrees that any failure by Seller to provide such RA Substitute Capacity may result in CAISO rejecting or cancelling Seller’s request for CAISO to approve such Facility outage. (g) The Parties acknowledge that since the Effective Date (as defined in the Original Agreement) there have been changes of Applicable Laws with respect to the “slice-of-day” rules for Resource Adequacy Benefits (“Slice-of-Day Rule”) that in certain respects may be inconsistent with the provisions of this Agreement. The Parties shall negotiate in good faith to further amend this Agreement within one hundred eighty (180) days of the Effective Date to resolve any such inconsistencies between this Agreement and the Slice-of-Day Rules; provided,
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the intent of the negotiations shall be to maintain the balance of the Parties’ benefits, burdens, and obligations set forth in this Agreement as of the Effective Date; provided further, any amendment to this Agreement pursuant to this Section 3.7(g) shall be subject to Lender consent.
3.8 Resource Adequacy Failure.
(a) RA Deficiency Determination. For each RA Shortfall Month Seller shall pay to Buyer the RA Deficiency Amount as liquidated damages, as the sole and exclusive remedy for the Capacity Attributes that Seller failed to convey to Buyer.
RA Deficiency Amount Calculation. For any Showing Month from and after the RA Guarantee Date, the “RA Deficiency Amount” shall equal the product of (i) the difference, expressed in kW, of (A) the Guaranteed RA Amount, minus (B) Buyer’s Share of the Net Qualifying Capacity of the Facility that was included in the Supply Plan for the applicable Showing Month (not less than the amount included in Seller’s Notice to Buyer pursuant to Section
3.7(c)) (or, if Seller does not have a Net Qualifying Capacity in such Showing Month (other than due to Buyer’s action or inaction), the Net Qualifying Capacity of the Facility shall be deemed to be zero (0) kW), minus (C) Deemed Delivered RA in respect of such Showing Month, minus (D) Replacement RA delivered in respect of such Showing Month (such difference, the “RA Shortfall Amount”), multiplied by (ii) (A) the product of (X) the CPM Soft Offer Cap (or its successor) multiplied by (Y) the CPM Adjustment Factor (“CPM Price”),
3.9 CEC Certification and Verification. Subject to Section 3.12 and in accordance with the timing set forth in this Section 3.9, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certification and Verification. Within one hundred eighty (180) days after the Commercial Operation Date, Seller shall obtain and maintain throughout the remainder of the Delivery Term the final CEC Certification and Verification; provided, Seller’s failure to obtain and/or maintain CEC Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date shall not constitute a breach or default under this agreement so long as (i) Seller applies for CEC Certification and Verification for the Facility within thirty (30) days after Commercial Operation and thereafter uses commercially reasonable efforts to obtain CEC Certification and Verification as soon as reasonably practicable, (ii) Seller provides non-binding Notice to Buyer promptly upon learning of any reasonably expected delay in obtaining CEC Certification and Verification beyond one hundred eighty (180) days following the Commercial Operation Date, and (iii) Seller obtains final CEC Certification and Verification on or before two hundred seventy (270) days following the Commercial Operation Date. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Certification and Verification for the Facility.
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3.10 Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC 6]
3.11 California Renewables Portfolio Standard. Subject to Section 3.12, Seller shall also take all other actions necessary to ensure that the Facility Energy is tracked for purposes of satisfying the California Renewables Portfolio Standard requirements, as may be amended or supplemented by the CPUC or CEC from time to time.
3.12 Compliance Expenditure Cap. If a change in Law occurring after the Effective Date (as defined in the Original Agreement) has increased Seller’s cost to comply with Seller’s obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of Green Attributes, Capacity Attributes, CEC Certification and Verification, and/or WREGIS Certificates (as applicable), then the Parties agree that the maximum aggregate amount of costs and expenses Seller shall be required to bear during the Delivery Term to comply with all of such obligations shall be capped at per MW of
Guaranteed Capacity (“Compliance Expenditure Cap”).
(a) Any actions required for Seller to comply with its obligations set forth in the first paragraph above, the cost of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.” (b) If Seller reasonably anticipates the need to incur out-of-pocket expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated out-of-pocket expenses. (c) Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all or some portion of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. If Buyer does not respond to a Notice given by Seller under this Section 3.12 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Notice, and Seller shall have no further obligation to take, and no liability for any failure to take, such Compliance Actions until such time as Buyer agrees to pay such Accepted Compliance Costs.
(d) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller’s actual costs to effect the
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Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller.
3.13 Project Configuration. In order to optimize the benefits of the Facility, Buyer and Seller each agree that if requested by the other Party, then Buyer and Seller shall discuss in good faith potential reconfiguration of the Facility or Interconnection Facilities, which discussion either Party may terminate in its sole discretion at any time; provided, neither Party shall be obligated to agree to any changes under this Agreement, or to incur any expense in connection with such changes, except under terms mutually acceptable to both Parties in the sole discretion of each as set forth in a written agreement.
ARTICLE 4
OBLIGATIONS AND DELIVERIES
4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the Commercial Operation Date through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product and Replacement Product at the Delivery Point in accordance with the terms of this Agreement. Seller shall effectuate the delivery of Facility Energy and shall be responsible for securing such arrangements with CAISO, the PTO and any other Transmission Provider as are necessary in connection therewith. Seller shall be responsible for paying or satisfying when due any costs or charges (except as otherwise set forth in this Agreement) imposed in connection with the delivery of Facility Energy to the Delivery Point, including any operation and maintenance charges imposed by the Transmission Provider directly relating to the Facility’s operations. Buyer shall be responsible for all costs, charges and penalties (except as otherwise set forth in this Agreement), if any, imposed in connection with the delivery of Facility Energy at and after the Delivery Point, including without limitation transmission costs and transmission line losses. The Facility Energy will be scheduled with the CAISO by Seller (or Seller’s designated Scheduling Coordinator) in accordance with Exhibit D.
(b) Green Attributes. All Green Attributes associated with Test Energy and the Facility Energy during the Delivery Term are exclusively dedicated to and vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys Buyer’s Share of all such Green Attributes to Buyer as included in the delivery of the Product from the Facility. (c) Energy Products. If, at any time during the Contract Term, Buyer requests Seller to provide any new or different Energy-related products or Ancillary Services that may become recognized from time to time in the CAISO market, and Seller is able to provide any such product from the Facility without material adverse effect (including any obligation to incur more than de minimis costs, expenses or liabilities, or any more than de minimis impacts on the operations of Seller, any of Seller’s Affiliates, or the Facility) on Seller, Seller’s Affiliates or the Facility or Seller’s obligations or liabilities under this Agreement or any other agreement, then Seller shall use commercially reasonable efforts to coordinate with Buyer to provide such product.
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If provision of any such new product would have a material adverse effect (including any obligation to incur more than de minimis costs, expenses or liabilities, or any more than de minimis impacts on the operations of Seller, any of Seller’s Affiliates, or the Facility) on Seller, Seller’s Affiliates or the Facility or Seller’s obligations or liabilities under this Agreement or any other agreement, then Seller shall be obligated to provide such product only if the Parties first execute an amendment to this Agreement with respect to such product that is mutually acceptable to both Parties.
4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Facility Energy, shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.
4.3 Forecasting. Seller shall provide the forecasts described below. Seller shall use commercially reasonable efforts to forecast accurately and to transmit such information in a format reasonably acceptable to Buyer (or Buyer’s designee). Seller shall use reasonable efforts to provide forecasts that are consistent with the information known by Seller at the time the forecasts are submitted and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practice.
(a) Annual Forecast of Facility Energy. No less than forty-five (45) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) the compliance deadline for the annual RA Plan (which is currently the last Business Day of October that is prior to commencement of the year for the annual RA Plan) for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of expected Facility Energy, by hour, for the following calendar year in a form substantially similar to the table found in Exhibit F-1, or as reasonably requested by Buyer.
(b) Monthly Forecast of Facility Energy and Available Capacity. No less than thirty (30) days before the beginning of Commercial Operation, and thereafter fifteen (15) days before the applicable RA Plan Showing Deadline for each Showing Month during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of the hourly expected (i) Available Capacity and (ii) Facility Energy (items (i)-(ii) collectively referred to as the “Forecasted Product”), for each day of the following month in a form substantially similar to Exhibits F-1 and F-2, as applicable (“Monthly Forecast”).
(c) Day-Ahead Forecast. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery of Facility Energy, Seller shall provide Buyer with a non-binding forecast of the hourly expected Available Capacity and the Day-Ahead Forecast.
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(d) Real-Time Forecasts. During the Delivery Term, Seller shall, or shall cause its authorized representative to, notify Buyer of any changes from the Day-Ahead Forecast resulting from changes of fifteen (15) MW or more in Available Capacity or when the expected Facility Energy, net of all Electrical Losses, differs by more than fifteen (15) MWh, as applicable, of the amount set forth in the Day-Ahead Forecast, in each case whether due to a Forced Facility Outage, Force Majeure Event or other cause affecting the Available Capacity, as soon as reasonably possible, but no later than one (1) hour prior to the deadline for submitting schedules to the CAISO in accordance with the rules for participation in the Real-Time Market. Such updated forecast shall be deemed the “Real-Time Forecast”; provided, if there are no such changes from the Day-Ahead Forecast, the Day-Ahead Forecast for the applicable day shall be deemed the Real-Time Forecast. If the Available Capacity or, if applicable, the expected Facility Energy, changes by at least fifteen (15) MW or fifteen (15) MWh, as applicable, as of a time that is less than one (1) hour prior to the Real-Time Market deadline, but before such deadline, then Seller must notify Buyer as soon as reasonably possible. Such Real-Time Forecasts of Facility Energy shall be based on a forecast from the Approved Forecast Vendor and shall contain information regarding the beginning date and time of the event resulting in the change in Available Capacity or the expected Facility Energy, as applicable, the expected end date and time of such event, and any other information required by the CAISO or reasonably requested by Buyer. With respect to any Forced Facility Outage, Seller shall use commercially reasonable efforts to notify Buyer of such outage within ten (10) minutes of the commencement of the Forced Facility Outage. Seller shall use commercially reasonable efforts to inform Buyer of any developments that are reasonably likely to affect either the duration of such outage or the availability of the Facility during or after the end of such outage. Such Real-Time Forecasts shall be communicated in a method reasonably acceptable to Buyer, provided that Buyer specifies the method no later than sixty (60) days prior to the effective date of such requirement. In the event Buyer fails to provide Notice of an acceptable method for communications under this Section 4.3(d), then Seller shall send such communications by telephone and e-mail to Buyer.
(e) Meteorological Data.
(i) Commencing on the Commercial Operation Date, and
continuing throughout the Delivery Term, Seller shall provide to Buyer records of meteorological measurements based on output from reasonably representative meteorological stations installed at the Site, which shall be either (
, which measurements shall be provided
by Seller to Buyer
(provided, Buyer shall have the option to elect, no more than once per calendar year, the method of delivery as set forth in subsections (x) or (y) above upon no less than thirty ( prior written Notice to Seller of such election), in each case including the following data points:
(A) wind speed (and, if Seller elects to receive meteorological data as set forth in 4.3(e)(y) above, the highest 3-second wind gust within ten (10) minutes), (B) wind direction, (C) ambient air temperature, (D) precipitation (rain rate), (E) precipitation (running thirty (30)-day total), and (F) barometric pressure; provided, the method of data delivery and the foregoing data points specified
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under this Section 4.3(e) may be updated as reasonably agreed to by the Parties. Such updates may include modifications to or additions of data points as are reasonably necessary for Buyer’s administration of this Agreement, to the extent that Seller can effectuate such updates through the use of commercially reasonable efforts.
(ii) All information provided to Buyer pursuant to this Section
4.3(e) shall constitute Confidential Information of Seller, and Buyer shall be prohibited from providing any such information to any other Person without Seller’s express written prior consent (in Seller’s sole discretion). Seller shall not be obligated to provide any assistance to Buyer with respect to using, interpreting or otherwise processing such data, but Seller shall respond to Buyer’s reasonable requests for clarifying or correcting information.
4.4 Dispatch Down/Curtailment.
(a) General. Seller agrees to reduce the amount of Facility Energy produced by the Facility, by the amount and for the period set forth in any Curtailment Order; provided, Seller is not required to reduce such amount to the extent it is inconsistent with the limitations of the Facility set forth in the Operating Restrictions.
Alternative Delivery Point/Third-Party Sales. In the event that, and for so long as, Seller is unable, despite using commercially reasonable efforts, to deliver all or a portion of the Product to Buyer at the Delivery Point, but is able to deliver Product to Buyer at one or more Alternative Delivery Points, such Alternative Delivery Points shall be considered the Delivery Point for all purposes under this Agreement.
(c) Failure to Comply. Subject to Section 4.4(a), if Seller fails to comply with a Curtailment Order, then, for each MWh of Facility Energy that is delivered in excess of the Curtailment Order, Seller shall pay Buyer for each such MWh the amount, if any, paid to Seller by Buyer for delivery of such excess MWh.
(d) Seller Equipment Required for Operating Instruction Communications.
Seller shall develop and install all communications systems necessary for the operation of the Facility in accordance with Prudent Operating Practice, including communications systems that provide for the receipt and following of automated dispatch instructions from the CAISO.
4.5 Station Use. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge (i) Seller is responsible for providing all Energy to serve Station Use
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(including paying the cost of any Energy used to serve Station Use), (ii) the supply of such Station Use shall not be deemed a violation of this Agreement, (provided, Seller shall indemnify and hold harmless Buyer from any and all costs, penalties, charges or other adverse consequences that result from Energy supplied for Station Use by any means other than retail service from the applicable utility, and shall take any additional measures to ensure Station Use is supplied by the applicable utility’s retail service if necessary to avoid any such costs, penalties, charges or other adverse consequences), and (iii) Station Use may not be supplied from Facility Energy (provided, Seller may supply Station Use from Energy produced by the Facility so long no such Energy is recorded as Facility Energy by the Facility Meter, and subject to the other requirements of this Agreement).
4.6 Facility Maintenance. Without limiting Section 3.1 or Exhibit G:
(a) Seller shall provide to Buyer written schedules for Planned Outages for each calendar year no later than September 1 of the prior calendar year for each following calendar year.
Buyer may provide comments no later than ten (10) days after receiving any such schedule, and Seller shall in good faith take into account any such comments. Seller shall promptly deliver to Buyer the final updated schedule of Planned Outages thereafter. Seller shall be permitted to reduce deliveries of Product during any period of such Planned Outages. (b) If reasonably required in accordance with Prudent Operating Practices, Seller may perform maintenance at a different time than maintenance scheduled pursuant to Section 4.6(a). Seller shall be responsible, at no additional cost to Buyer, to provide any replacement Capacity Attributes required by the CAISO in connection with the CAISO’s approval of any Seller request for a Planned Outage after the applicable Supply Plan has been submitted. (c) Notwithstanding anything in this Agreement to the contrary, no Planned Outages of the Facility shall be scheduled or planned during any Summer Month during the Delivery Term
unless (i) such outage is required to avoid damage to the Transmission System, (ii) (iv) such outage is reasonably required to maintain
health and safety pursuant to Section 6.2, or (v) the Parties agree otherwise in writing. In the event that Seller has a previously Planned Outage that becomes coincident with a System Emergency that prevents Seller from reasonably performing the contemplated maintenance activities, Seller shall make commercially reasonable efforts to reschedule such Planned Outage. (d) Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall promptly provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage and shall keep Buyer informed of any developments that will affect either the duration of the outage or the availability of the Facility during or after the end of such outage.
(e) Seller shall be permitted to reduce deliveries of Product (i) during any period of System Emergency, (ii) pursuant to a Curtailment Order, (iii) during a Market
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Curtailment Period, (iv) during any Force Majeure Event, (v) due to Prudent Operating Practice or in compliance with applicable Law, or (vi) otherwise pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff or as may be required under a Shared Facilities Agreement.
(f) Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.
(g) Seller shall be permitted in its sole discretion to reduce Facility generation other than Buyer’s Share of such Facility generation during any Settlement Interval or Settlement Period that is not during a Curtailment Period or Market Curtailment Period. During such curtailments, Seller shall deliver Facility Energy to Buyer in accordance with clause (b) of the definition of “Facility Energy”.
(h) With respect to any (i) Major Planned Outage or (ii) Forced Facility Outage of or more of Installed Capacity that persists for more than , Seller shall provide reports to Buyer not less frequently than each month regarding Seller’s progress toward completion of repairs, maintenance, equipment replacement and/or any other material aspect of returning the Facility to full operation, including information reasonably requested by Buyer.
4.7 Guaranteed Energy Production.
(a) During each Performance Measurement Period, Seller shall deliver to Buyer an amount of Facility Energy, not including any Excess MWh, equal to no less than the Guaranteed Energy Production (as defined below). “Guaranteed Energy Production” means an amount of Facility Energy, as measured in MWh, equal to of the average annual Expected Energy for the two (2) Contract Years constituting such Performance Measurement Period; provided, the Guaranteed Energy Production applicable to the first Performance Measurement Period of the Delivery Term shall be equal to of the average annual Expected Energy for the two (2) Contract Years constituting such Performance Measurement Period. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, in addition to Facility Energy, Seller shall be deemed to have delivered to Buyer the sum of (a) any Deemed Delivered Energy, plus (b) Facility Energy in the amount it could reasonably have delivered to Buyer but was prevented from delivering to Buyer by reason of any (i) Force Majeure Events, (ii) Curtailment Period (excluding any Transmission System Outage due to the fault or negligence of Seller), (iii) System Emergency not caused by Seller, or (iv) Buyer Default or other Buyer failure to perform that prevents Seller from being able to deliver Facility Energy to the Delivery Point (“Lost Output”). If Seller fails to achieve the Guaranteed Energy Production amount in any Performance Measurement Period, Seller shall pay Buyer damages calculated in accordance with Exhibit G (“Energy Replacement Damages”); provided, Seller may, as an alternative, provide Replacement Product delivered retrospectively to Buyer at the Delivery Point or the SP 15 EZ Gen Hub.
(b) Seller shall be permitted to deliver Replacement Product (i) prospectively during any Performance Measurement Period if Seller reasonably anticipates that delivery of such
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Replacement Product is necessary to achieve the Guaranteed Energy Production for such Performance Measurement Period, or (ii) retrospectively during the Contract Year immediately following any Performance Measurement Period in accordance with Section 4.7(a) above; provided, Seller’s right to deliver Replacement Product shall be subject to mutual agreement of the Parties (in the reasonable discretion of each) of the delivery schedule for such Replacement Product; provided further, the amount of Replacement Product delivered by Seller pursuant to (i) or (ii) shall not exceed ten percent (10%) of the Expected Energy for the Contract Year for which such Replacement Product is delivered. Seller shall provide Notice to Buyer of any proposed delivery of Replacement Product, including a proposed schedule of such deliveries, (i) no later than thirty (30) days prior to the proposed delivery of such Replacement Product in the case of prospectively delivered Replacement Product, and (ii) no later than thirty (30) days after the conclusion of any Performance Measurement Period with respect to which Seller proposes to deliver retroactive Replacement Product.
4.8 WREGIS. Seller shall, at its sole expense, but subject to Section 3.12, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section 4.8(g), provided that Seller fulfills its obligations under Sections
4.8(a) through (g) below. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using Recurring Certificate Transfers (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause Recurring Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules.
Since WREGIS Certificates will only be created for whole MWh amounts of Facility Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate. (c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month as evidenced by the Facility’s metered data.
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( d) Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are fo1mally transfe1Ted to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Ce1iificates upon payment to Seller in accordance with Section 8.2.
■ A "WREGIS Certificate Deficit" means any deficit or sho1ifall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month ("Deficient Month") caused by an e1rnr or omission of Seller. If any WREGIS Ce1iificate Deficit is caused by, or is the result of any action or inaction of, Seller, then Seller shall either (x) resolve the associated WREGIS Ce1iificate Deficit or (y) provide Replacement Green Attributes (as defined in Exhibit G) upon a schedule reasonably acceptable to Buyer (including in consideration of costs to Buyer), in each case no later than ninety (90) days following such Deficient Month; provided, Seller may offer to cure such WREGIS Certificate Deficit pursuant to clause (x) or (y) above after such ninety (90)-day period, which cure Buyer may accept or reject in its sole discretion;provided urther I if Bu er re·ects Seller's roffered cure followin such nine 90 -da eriod
sentence, Buyer's payment obligatio • • . .
If and to the extent Seller fails
m e1t er cause (x) or (y) of the previous
associated with the lmcured WREGIS
Without limiting
Seller's obligations under this Section 4.8, if a deficit or sho1ifall in WREGIS Ce1i ificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month is caused solely by an eITor or omission of WREGIS, the Paiiies shall cooperate in good faith to cause WREGIS to co1Tect its eITor or omission.
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(f) If WREGIS changes the WREGIS Operating Rules after the Effective Date (as defined in the Original Agreement) or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date (as defined in the Original Agreement), the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Facility Energy in the same calendar month. (g) Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC REC-1]
(h) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract. [STC REC-2] (i) Seller’s obligations under Sections 3.10, 4.8(g) and 4.8(h) shall be subject to Section 3.12, the term “Project” as used in Section 3.10 shall refer to the “Facility” as defined herein, the term “the contract” in Section 4.8(h) shall refer to “this Agreement” as defined herein, and the term “commercially reasonable efforts” as used in Section 3.10 and Section 4.10(g) means efforts consistent with and subject to Section 3.12.
ARTICLE 5
TAXES
5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the time and place contemplated under this Agreement. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the time and place contemplated under this Agreement (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees). If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation to evidence such exemption or exclusion within thirty (30) days after the date Buyer makes such claim. Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes for which Buyer is responsible hereunder and from which Buyer claims it is exempt.
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5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Product delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Product.
ARTICLE 6
MAINTENANCE OF THE FACILITY
6.1 Maintenance of the Facility. Seller shall, as between Seller and Buyer, be solely responsible for the operation and maintenance of the Facility and the delivery of the Product and shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.
6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Buyer’s emergency contact identified in Exhibit N Notice of such condition as soon as practicable thereafter. Such action may include disconnecting and removing all or a portion of the Facility, or suspending the supply of Facility Energy to the Delivery Point.
6.3 Shared Facilities The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities, and Seller’s rights and obligations under the Interconnection Agreement, may be subject to certain shared facilities and/or co-tenancy agreements (“Shared Facilities Agreements”) to be entered into among two or more of Seller, the Participating Transmission Owner, Seller’s Affiliates, and/or third parties pursuant to which certain Interconnection Facilities, interconnection service and/or transmission service may be subject to joint ownership and/or shared maintenance and operation arrangements; provided, such agreements shall (i) not preclude Seller from performing or satisfying, and shall not purport to limit, its obligations hereunder, including providing interconnection capacity for the Facility in an amount not less than 2,131 MW, (ii) provide for separate metering of the Facility, (iii) provide that any other generating or energy storage facilities not included in the Facility but using Shared Facilities shall not be included within the Facility’s CAISO Resource ID, and (iv) provide that any curtailment that is not specific to one or more CAISO Resource IDs of output from generating or energy storage facilities using the Shared Facilities shall not be allocated to the Facility more than its pro rata portion of the total capacity of all generating or energy storage facilities using the Shared Facilities, unless such curtailment of Shared Facilities was attributable to the Facility or caused by Seller. Seller shall not, and shall not permit any affiliate to, allocate to other parties a share of the total interconnection capacity under the Interconnection Agreements in excess of an amount equal to the total interconnection capacity under the Interconnection Agreements minus 2,131 MW.
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ARTICLE 7
METERING
7.1 Metering. The Facility Meter shall be installed at the switching station adjacent to the SunZia East Converter Station and maintained at Seller’s cost. If the Facility Meter is inaccurate, Seller will cause such meter to be promptly corrected in accordance with Prudent Operating Practice and CAISO requirements, as applicable. Seller shall be responsible for any costs, fines or penalties, including imbalance charges as a result of the inaccurate meter. The Facility Meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event that Seller breaks a seal, Seller shall notify Buyer as soon as practicable. Seller shall, or shall cause its Scheduling Coordinator to, provide Buyer with read-only access to a real-time data feed of the generation of the Facility, and real-time Facility Meter reads. In addition, Seller hereby agrees to provide all Facility Meter data to Buyer in a form reasonably acceptable to Buyer on a read-only basis, and consents to Buyer obtaining from the CAISO or the PTO, as applicable, the Facility Meter data applicable to the Facility and all inspection, testing and calibration data and reports. Seller, or Seller’s Scheduling Coordinator, shall cooperate with Buyer to provide records, including invoices or settlement data from the CAISO, for the full Facility, for Buyer to verify the accuracy of all invoices, and to allow both Parties to retrieve the Facility Meter reads from the CAISO Market Results Interface – Settlements (MRIS-S) (or its successor) or from the Facility Meter at the Facility.
7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’s reasonable request, Seller shall test the Facility Meter. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate it shall be promptly repaired or replaced. If a meter is inaccurate by more than one percent (1%) and it is not known when the meter inaccuracy commenced (if such evidence exists, such date will be used to adjust prior invoices), then the invoices covering the period of time since the last meter test shall be adjusted for the amount of the inaccuracy on the assumption that the inaccuracy persisted during the second half of such period so long as such adjustments are accepted by CAISO and WREGIS; provided, such period may not exceed twelve (12) months.
ARTICLE 8
INVOICING AND PAYMENT; CREDIT
8.1 Invoicing. Seller shall use commercially reasonable efforts to deliver an invoice to Buyer for Product no later than the fifteen (15th) day of each month for the previous calendar month. Each invoice shall (a) reflect records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month, including the amount of Facility Energy and Replacement Product delivered to Buyer (if any), the calculation of Deemed Delivered Energy and Adjusted Energy Production (if any), the LMP prices at the Delivery Point for each Settlement Period, and the Renewable Rate applicable to such Product in accordance with Exhibit C, and other relevant data for the prior month; and (b) be in a format reasonably acceptable to Buyer, covering the Product provided in the preceding month determined in accordance with the applicable
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provisions of this Agreement. Seller shall provide Buyer with all reasonable access (including, in real time, to the maximum extent reasonably possible) to any records, including invoices or settlement data from the CAISO, forecast data and other information, all as may be necessary from time to time for Buyer to verify the accuracy of all invoices.
8.2 Payment. Buyer shall make payment to Seller for Product (and any other amounts due) by wire transfer or ACH payment to the bank account provided on each monthly invoice.
Buyer shall pay undisputed invoice amounts no later than thirty (30) days after Buyer’s receipt of the invoice from Seller; provided, if such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on an annual Interest Rate equal to the prime rate published on the date of the invoice in The Wall Street Journal (or, if The Wall Street Journal is not published on that day, the next succeeding date of publication), plus two percent (2%) (the “Interest Rate”). If the due date occurs on a day that is not a Business Day, the late payment charge shall begin to accrue on the next succeeding Business Day.
8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon fifteen (15) days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement. Seller acknowledges that in accordance with California Government Code Section 8546.7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of this Agreement, for a period of three (3) years following the last payment hereunder (or such longer period required by applicable Law), because the compensation under this Agreement exceeds $10,000.
8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO, or there is determined to have been a meter inaccuracy sufficient to require a payment adjustment. If the required adjustment is in favor of Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due.
8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, or adjustment
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to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party and such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.
8.6 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all undisputed amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibits B and G, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.
8.7 Seller’s Development Security. To secure its obligations under this Agreement, Seller shall have delivered the Development Security to Buyer within thirty (30) days after the Effective Date (as defined in the Original Agreement). Seller shall maintain the Development Security in full force and effect; provided, Seller shall have no obligation to replenish the Development Security following any draw thereupon by Buyer; provided further, Buyer shall not draw on the Development Security with respect to any payments due from and payable by Seller until after any required Notice and the expiration of all cure periods. Upon the earlier of (a) Seller’s delivery of the Performance Security, or (b) sixty (60) days after termination of this Agreement, Buyer shall return the Development Security to Seller, less the amounts drawn in accordance with this Agreement. If the Development Security is provided in the form of more than one Letter of Credit, any draw on the Development Security by Buyer shall be made pro rata among each such Letter of Credit.
8.8 Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Commercial Operation Date.
Seller shall maintain the Performance Security in full force and effect, and Seller shall within ten (10) Business Days after any draw thereon replenish the Performance Security in the event Buyer collects or draws down any portion of the Performance Security for any reason permitted under this Agreement other than to satisfy a Termination Payment, until the following have occurred: (a) the Delivery Term has expired or terminated early; and (b) all payment obligations of Seller due and payable under this Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as
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through set-off or netting); provided, Buyer shall not draw on the Performance Security with respect to any payments due from and payable by Seller until after any required Notice and the expiration of all cure periods. Following the occurrence of both events listed in clauses (a) and (b) above, Buyer shall promptly return to Seller the unused portion of the Performance Security. If the Performance Security is provided in the form of more than one Letter of Credit, any draw on the Performance Security by Buyer shall be made pro rata among each such Letter of Credit.
8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security and Performance Security, to the extent the Development Security and/or Performance Security are provided in the form of cash collateral or cash equivalent collateral, any other cash collateral and cash equivalent collateral posted pursuant to Sections 8.7 and 8.8 and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of Buyer, and Seller agrees to take all action as Buyer reasonably requires in order to perfect Buyer’s Security Interest in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof.
Upon or any time after the occurrence of an Event of Default caused by Seller, an Early Termination Date resulting from an Event of Default caused by Seller, or an occasion provided for in this Agreement where Buyer is authorized to retain all or a portion of the Development Security or Performance Security, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 8.9):
(a) Exercise any of its rights and remedies with respect to the Development Security and Performance Security, including any such rights and remedies under Law then in effect;
(b) Draw on any outstanding Letter(s) of Credit issued for its benefit and retain any cash held by Buyer as Development Security or Performance Security; and (c) Liquidate all Development Security or Performance Security (as applicable) then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.
Buyer shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce Seller’s obligations under this Agreement (Seller remains liable for any amounts owing to Buyer after such application), subject to Buyer’s obligation to return any surplus proceeds remaining after such obligations are satisfied in full.
8.10 Financial Statements.
(a) If a Guaranty is provided as Performance Security in lieu of cash or a Letter of Credit, Seller shall provide to Buyer, or cause the Guarantor to provide to Buyer, unaudited quarterly and annual audited financial statements of the Guarantor (including a balance sheet and
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statements of income and cash flows), all prepared in accordance with generally accepted accounting principles in the United States, consistently applied. (b) Buyer shall provide to Seller (i) within one hundred twenty (120) days following the end of each fiscal year during the Contract Term, a copy of Buyer’s annual report containing audited consolidated financial statements for such fiscal year and (ii) within sixty (60) days after the end of each of its first three fiscal quarters of each fiscal year during the Contract Term, a copy of Buyer’s quarterly report containing unaudited consolidated financial statements for such fiscal quarter. In all cases the statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles (“GAAP”); provided, should any such statements not be available on a timely basis due to a delay in preparation or certifications, such unavailability shall not be an Event of Default so long as Buyer diligently pursues the preparation, certification, and delivery of the statements. Buyer shall be deemed to have delivered such financial statements to Seller if such statements are made publicly available.
ARTICLE 9
NOTICES
9.1 Addresses for the Delivery of Notices. Any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth in Exhibit N or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.
9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail or other electronic means) at the time indicated by the time stamp upon delivery and, if after 5 pm, on the next Business Day; or (d) if delivered in person, upon receipt by the receiving Party. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission.
ARTICLE 10
FORCE MAJEURE
10.1 Definition.
(a) “Force Majeure Event” means any act or event that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of commercially reasonable efforts, cannot be avoided by and is beyond the reasonable
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control (whether direct or indirect) of the claiming Party; provided, a Force Majeure Event shall not excuse any such delay, nonperformance, or noncompliance to the extent the claiming Party’s fault or negligence contributed thereto in scope or duration. (b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic (as
defined in the Original Agreement)); landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below.
(c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions or changes in Law that render a Party’s performance of this Agreement at the Renewable Rate unprofitable or otherwise uneconomic (including an increase in component or compliance costs for any reason, including foreign or domestic tariffs, Buyer’s ability to buy Product at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under this Agreement); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above; (iv) a Curtailment Order, except to the extent that a Curtailment Order is caused by an event that otherwise qualifies as a Force Majeure Event; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility, including the lack of wind, sun or other fuel source of an inherently intermittent nature, except to the extent such inability is caused by a Force Majeure Event; (vi) a strike, work stoppage or labor dispute limited only to any one or more of Seller, Seller’s Affiliates, Seller’s contractors, their subcontractors thereof or any other third party employed by Seller to work on the Facility; (vii) any equipment failure except if such equipment failure is caused by a Force Majeure Event; or (viii) any action or inaction by any third party, including Transmission Provider, that delays or prevents the approval, construction or placement in service of any Interconnection Facilities or Network Upgrades, except to the extent caused by a Force Majeure Event.
10.2 No Liability If a Force Majeure Event Occurs. Except as provided in Section 4 of Exhibit B, neither Seller nor Buyer shall be liable to the other Party in the event it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability with due speed and diligence. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has
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been removed. The obligation to use due speed and diligence shall not be interpreted to require resolution of labor disputes by acceding to demands of the opposition when such course is inadvisable in the discretion of the Party having such difficulty. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. The occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due hereunder.
10.3 Notice. In order to claim a Force Majeure Event, the claiming Party, within fourteen (14) days of becoming aware that an event or series of events, as applicable, constitutes a Force Majeure Event, must give the other Party Notice describing the particulars of the occurrence in substantially the form set forth in Exhibit T, (b) provide timely evidence reasonably sufficient to establish that the occurrence constitutes Force Majeure as defined in this Agreement, and (c) notify the other Party in writing of the cessation or termination of such Force Majeure Event, all as known or estimated in good faith by the affected Party.
10.4 Termination Following Force Majeure Event or Development Cure Period. (a) If the cumulative extensions granted under the Development Cure Period (other than the extensions granted pursuant to clause 4(d) in Exhibit B) plus the payment of Commercial Operation Delay Damages equal or exceed , and Seller has demonstrated to Buyer’s reasonable satisfaction that Seller’s failure to achieve COD by the Guaranteed Commercial Operation Date (as extended) was the result of delays that would have otherwise entitled to Seller to of Development Cure Period delays but for the one hundred eighty (180)-day limitation, then Seller may terminate this Agreement upon Notice to Buyer. Upon such termination, neither Party shall have any liability to the other Party, save and except for those obligations specified in Section 2.1(b), and Buyer shall promptly return to Seller any Development Security then held by Buyer plus the full amount of Commercial Operation Delay Damages paid by Seller, less any amounts drawn in accordance with this Agreement with respect to other amounts due from Seller, if any. (b) If a Force Majeure Event has occurred after the Commercial Operation Date that has caused either Party to be wholly or partially unable to perform its obligations hereunder in any material respect, and the impacted Party has claimed and received relief from performance of its obligations for a consecutive twelve (12)-month period, then the non-claiming Party may terminate this Agreement upon Notice to the other Party; provided, if Seller is the Party claiming such Force Majeure Event and such Force Majeure Event cannot reasonably be cured within such twelve (12) month period, then Seller may provide a plan to Buyer, which must be acceptable to Buyer in its reasonable discretion, to cure such Force Majeure Event within an additional six (6) month period and Buyer may not terminate this Agreement due to such Force Majeure Event unless Seller has not resumed performance of its material obligations hereunder upon the expiration of
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such additional six (6)-month period; provided further, if the impacted Party has claimed and received relief from performance of its obligations due to such Force Majeure Event for a consecutive eighteen (18)-month period, then either Party may terminate this Agreement upon Notice to the other Party. Upon any such termination, neither Party shall have any liability to the other Party, save and except for those obligations specified in Section 2.1(b), and Buyer shall promptly return to Seller any Performance Security then held by Buyer, less any amounts drawn in accordance with this Agreement.
ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION
11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30)-day period despite exercising commercially reasonable efforts); (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1 or for which an exclusive remedy is provided), and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30)-day period despite exercising commercially reasonable efforts); (iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Article 14, if applicable; (vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party; or
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(vii) failure by either Party to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 (except, with respect to Seller, as set forth in Sections 11.1(b)(vi) and
11.1(b)(vii)) within five (5) Business Days after Notice from the other Party, including Seller’s failure to replenish the Performance Security amount in accordance with this Agreement in the event Buyer draws against it for any reason other than to satisfy a Termination Payment; (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i) if at any time Seller delivers or attempts to deliver Energy to the Delivery Point for sale under this Agreement that was not generated or discharged by the Facility, except for Replacement Product;
(ii) the failure by Seller to achieve the Construction Start Date on or before the Guaranteed Construction Start Date or Commercial Operation on or before the Guaranteed Commercial Operation Date, as such dates may be extended by Seller’s payment of Daily Delay Damages, Commercial Operation Delay Damages and/or by Development Cure Period extensions;
(iii) if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) of the 6-month pro rata amount of Expected Energy for such period adjusted for seasonality proportionately to the monthly forecast provided annually by Seller under Section
4.3(a), and Seller fails to (x) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) threshold and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Operating Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days, or such longer period if necessary to remedy a Major Equipment Failure, not to exceed a total of eighteen (18) months (“Cure Plan”) and (y) complete such Cure Plan in all material respects as set forth therein, including within the timeframe set forth therein; (iv) if at any time during the Delivery Term the Installed Capacity does not equal or exceed the Guaranteed Installed Capacity;
(v) Reserved;
(vi) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, or (3) a replacement Guaranty from a Guarantor meeting the criteria set forth in the definition of Guarantor, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
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(A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least A- by S&P or A3 by Moody’s; (B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to comply with or perform its obligations under such Letter of Credit and such failure shall be continuing after the lapse of any applicable grace period permitted under such Letter of Credit; (D) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (E) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; (F) such Letter of Credit fails or ceases to be in full force and effect at any time;
(G) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit;
(vii) with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or (3) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) if any representation or warranty made by the Guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated, and such representation or warranty is not remedied within thirty (30) days after Notice thereof;
(B) the failure of the Guarantor to make any payment required or to perform any other material covenant or obligation in any Guaranty; (C) the Guarantor becomes Bankrupt;
(D) the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor;
(E) the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) prior to the indefeasible satisfaction of all obligations of Seller hereunder; or
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(F) the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty.
11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“Non-Defaulting Party”) shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment, or (ii) the Termination Payment, as applicable, in each case calculated in accordance with Section 11.3 below; (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; and
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement; provided, payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for any Terminated Transaction and the Event of Default related thereto.
11.3 Damage Payment; Termination Payment. If an Early Termination Date has been declared, the Non-Defaulting Party shall calculate, in a commercially reasonable manner, the Damage Payment or Termination Payment, as applicable, in accordance with this Section 11.3. (a) Damage Payment Prior to Commercial Operation Date. If the Early Termination Date occurs before the Commercial Operation Date, then the Damage Payment shall be calculated in accordance with this Section 11.3(a).
(i) If Seller is the Defaulting Party, then the Damage Payment shall be owed to Buyer and shall be a dollar amount that equals the amount of the Development Security as set forth on the Cover Sheet plus, if the Development Security is posted as cash, any interest accrued thereon. Buyer shall be entitled to immediately retain for its own benefit those funds held as Development Security and any interest accrued thereon if the Development Security is posted as cash, and any amount of Development Security that Seller has not yet posted with Buyer shall be immediately due and payable by Seller to Buyer. There will be no amounts owed to Seller. The Parties agree that Buyer’s damages in the event of an Early Termination Date prior to the Commercial Operation Date caused by Seller’s default would be difficult or impossible to
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determine and that the damages set forth in this Section 11.3(a)(i) are a reasonable approximation of Buyer’s harm or loss.
(ii) Except as set forth in Section 11.3(a)(iii), if Buyer is the Defaulting Party, then the Damage Payment shall be owed to Seller and shall equal Buyer’s Share of the sum of the actual, documented and verifiable costs incurred by Seller between the Effective Date (as defined in the Original Agreement) and the Early Termination Date in connection with the Facility, less the fair market value (determined in a commercially reasonable manner) of (A) all Seller’s assets individually or (B) the entire Facility, whichever is greater on the Early Termination Date, regardless of whether or not any Seller asset or the entire Facility is actually sold or disposed of. (iii) If Buyer is the Defaulting Party and such default arises in connection with: (A) Buyer’s repudiation of this Agreement; (B) Buyer’s bad faith; (C) Buyer’s failure to comply with its obligations under Section 2.2 to, within five (5) Business Days after receipt thereof, either accept or provide Notice stating in reasonable detail the basis for its reasonable rejection of Seller’s evidence of completion of any condition to Commercial Operation set forth in Section 2.2 (provided that Seller submitted such evidence within thirty (30) days of the expected Commercial Operation Date); or (D) Buyer’s failure to comply with its obligations under Section
2.6 to (x) within ten (10) Business Days of its receipt of Seller’s Notice of a Project Bifurcation or Project Transition, provide Notice to Seller of any comments on the draft Replacement PPA(s) and termination agreement attached to such Notice, and (y) cooperate reasonably with Seller and the Owners to resolve any issues and enter into the Replacement PPA(s) and the termination agreement within thirty (30) days of Seller’s Notice to Buyer of the same (provided, this clause (D) shall apply only if the draft Replacement PPA(s) are on the same terms and conditions as those set forth in this Agreement, except for those administrative changes that are necessary to effectuate the separation or transition of this Agreement into Replacement PPA(s) (including such changes as are set forth in Section 2.6(a) through Section 2.6(g), as applicable)), then the Damage Payment shall be owed to Seller and shall be equal to the Termination Payment determined in accordance with Section 11.3(b) below as of the Early Termination Date. There will be no amount owed to Buyer. The Parties agree that Seller’s damages in the event of an Early Termination Date prior to the Commercial Operation Date caused by Buyer’s default would be difficult or impossible to determine and that the damages set forth in Section 11.3(a)(ii) above or this Section 11.3(a)(iii), as applicable, are a reasonable approximation of Seller’s harm or loss. (b) Termination Payment On or After the Commercial Operation Date. The payment owed by the Defaulting Party to the Non-Defaulting Party for a Terminated Transaction occurring after the Commercial Operation Date (“Termination Payment”) shall be the aggregate of all Settlement Amounts plus any and all other amounts due to or from the Non-Defaulting Party (as of the Early Termination Date) netted into a single amount. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information.
The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to
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mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (i) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (ii) the Termination Payment described in this Section
11.3(b) is a reasonable and appropriate approximation of such damages, and (iii) the Termination Payment described in this Section 11.3(b) is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party.
11.4 Notice of Payment of Termination Payment or Damage Payment. As soon as practicable after a Terminated Transaction, but in no event later than sixty (60) days after the Early Termination Date, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Damage Payment or Termination Payment, as applicable, and whether the Termination Payment or Damage Payment, as applicable, is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment or Damage Payment, as applicable, shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.
11.5 Disputes With Respect to Termination Payment or Damage Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment or Damage Payment, as applicable, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment or Damage Payment, as applicable, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment or Damage Payment, as applicable, shall be determined in accordance with Article 15.
11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date. If this Agreement is terminated prior to the Commercial Operation Date for any reason except due to Buyer’s Event of Default, neither Seller nor Seller’s Affiliates may sell, market or deliver any Product associated with or attributable to the Facility to a party other than Buyer for a period of following such early termination date, unless prior to selling, marketing or delivering such Product, or entering into the agreement to sell, market or deliver such Product to a party other than Buyer, Seller or Seller’s Affiliates provide Buyer with a written offer to sell the Product on terms and conditions materially similar to the terms and conditions contained in this Agreement and (a) Buyer fails to accept such offer within forty-five (45) days of Buyer’s receipt thereof, or (b) Seller and Buyer fail to reach an agreement on the changes necessary to conform the new agreement on materially similar terms to this Agreement within ninety (90) days after Buyer’s receipt of such offer, despite both Parties negotiating in good faith. Seller’s or Seller’s Affiliate’s written offer to sell the Product pursuant to this Section 11.6 shall be at the Renewable Rate without increase or escalation;
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Nothing in this Section 11.6 shall be construed to limit in any way Seller’s right to market, sell, or deliver Energy, green attributes, capacity attributes, or other products generated by or associated with the Facility in excess of Buyer’s Share of such Energy, green attributes, capacity attributes, or other products generated by or associated with the Facility.
Neither Seller nor Seller’s Affiliates may sell or transfer the Facility, or any part thereof, or land rights or interests in the Site (including the interconnection queue position of the Facility) so long as the limitations contained in this Section 11.6 apply, unless the transferee agrees to be bound by the terms set forth in this Section 11.6 pursuant to a written agreement approved by Buyer.
Seller shall indemnify and hold Buyer harmless from all benefits lost and other damages sustained by Buyer as a result of any breach by Seller of its covenants contained within this Section 11.6.
11.7 Rights And Remedies Are Cumulative. Except where liquidated damages or other remedy are explicitly provided as the exclusive remedy, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.
11.8 Mitigation. Any Non-Defaulting Party shall be obligated to use commercially reasonable efforts to mitigate its Costs, Losses and damages resulting from any Event of Default of the other Party under this Agreement.
ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.
12.1 No Consequential Damages. EXCEPT TO THE EXTENT PART OF (A) AN
EXPRESS REMEDY OR MEASURE OF DAMAGES HEREIN, (B) AN IP INDEMNITY CLAIM, (C) AN ARTICLE 16 INDEMNITY CLAIM, (D) INCLUDED IN A LIQUIDATED DAMAGES CALCULATION, OR (E) RESULTING FROM A PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE,
EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR
DAMAGES FOR LOST REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR
NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, BY STATUTE, IN TORT OR CONTRACT.
12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET
FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND
MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN
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THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF
CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
NOTWITHSTANDING ANYTHING ELSE HEREIN TO THE CONTRARY, SELLER’S
AGGREGATE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT IN
CONNECTION WITH ANY DELAY BY SELLER IN COMPLETING THE FACILITY OR
ACHIEVING THE COMMERCIAL OPERATION DATE, INCLUDING FAILURE BY
SELLER TO ACHIEVE THE MILESTONE DATES SET FORTH ON THE COVER SHEET
AND ANY FAILURE BY SELLER TO SELL PRODUCT TO BUYER HEREUNDER AS A
RESULT OF ANY SUCH DELAY OR FAILURE, SHALL NOT EXCEED THE SUM OF (A)
THE AMOUNT OWING OR PAID BY SELLER IN RESPECT OF DELAY DAMAGES, IF ANY, AND (B) THE AMOUNT OF THE DAMAGE PAYMENT OWED BY SELLER, IF ANY.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.
IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY. THE
VALUE OF ANY TAX CREDITS, DETERMINED ON AN AFTER-TAX BASIS, LOST DUE TO BUYER’S DEFAULT (WHICH SELLER HAS NOT BEEN ABLE TO MITIGATE AFTER
USE OF REASONABLE EFFORTS) AND AMOUNTS DUE IN CONNECTION WITH THE
RECAPTURE OF ANY RENEWABLE ENERGY INCENTIVES, IF ANY, SHALL BE DEEMED TO BE DIRECT DAMAGES.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 3.8, 4.7, 4.8, 11.2 AND 11.3, AND AS
PROVIDED IN EXHIBIT B, EXHIBIT C, EXHIBIT G, AND EXHIBIT P, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE REMEDY IS
INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE
INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES
AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR
CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,
WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.
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THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE
EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE
BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY
WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY
13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller.
(b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other material agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Seller and its Affiliates are developing the Facility to be located in New Mexico.
(f) Neither Seller nor its Affiliates have received notice from or been advised by any existing or potential supplier or service provider that COVID-19 has caused, or is reasonably likely to cause, a delay in the construction of the Facility or the delivery of materials necessary to complete the Facility, in each case that would cause the Construction Start Date to be
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later than the Guaranteed Construction Start Date or the Commercial Operation Date to be later than the Guaranteed Commercial Operation Date.
(g) Prior to the Construction Start Date, Seller or an Affiliate of Seller will enter into (or has already entered into as of the date hereof) (i) EPC Contracts that provide for the construction of the Facility as described in Exhibit A and (ii) turbine supply agreements that provide for the purchase of distinct turbines for SunZia North and for SunZia South, respectively.
Promptly upon (but in no event later than ten (10) Business Days following) execution of the turbine supply agreement in respect of SunZia South, Seller shall provide to Buyer an updated Exhibit A setting forth the turbine supplier for SunZia South.
13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing 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. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and other Law.
(b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, including but not limited to community choice aggregation, the Joint Powers Act, competitive bidding, public notice, open meetings, election, referendum, or prior appropriation requirements, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound.
(d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity.
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(e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court, (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment.
(f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.
(g) Buyer cannot assert sovereign immunity as a defense to the enforcement of its obligations under this Agreement.
13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(a) It shall continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and to be qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall maintain (or obtain from time to time as required) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.
13.4 Prevailing Wage. Seller shall use commercially reasonable efforts to ensure that all employees hired by Seller (and its contractors and subcontractors) that will perform construction work or provide services at the Site related to construction of the Facility are paid wages at base rates not less than those prevailing for workers performing similar work in the locality as provided by applicable New Mexico Law, if any (“Prevailing Wages”). Within one hundred eighty (180) days after the Commercial Operation Date, Seller shall, at Seller’s sole expense, provide either (a) a certificate reasonably acceptable to Buyer, demonstrating that Seller (and its contractors and subcontractors) paid Prevailing Wages, or (b) a certificate from an officer of Seller certifying that Seller made commercially reasonable efforts to pay Prevailing Wages together reasonably
acceptable to Buyer of such efforts, and in either case including at a minimum (i) the Prevailing Wages pursuant to New Mexico Law for each applicable trade classification with respect to workers performing work or providing services at the Site, and (ii) the highest and the lowest annual base rate paid to such workers for the Facility in each such classification. Nothing herein shall require Seller, its contractors and subcontractors to comply with, or assume liability created by, other inapplicable provisions of any New Mexico labor laws. Buyer agrees that Seller’s obligations under this Section 13.4 may be satisfied upon the execution of a project labor agreement with respect to construction of the Facility.
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13.5 Community Benefits Funding. Seller shall (a) on or before the date that is thirty (30) days after the date of Financial Close, if such date occurs, pay to Buyer and (b) on or before the Commercial Operation Date, if such date occurs, pay to Buyer , both for Buyer to use for
community benefits as determined by Buyer in its sole discretion. Any public statements regarding Seller’s payments under this Section 13.5 and their direct connection to specific community benefits for which such payments are used shall be subject to Section 18.5.
13.6 Supplier Diversity Reporting. From the Effective Date until the Commercial Operation Date, upon request from Buyer and on a schedule to be reasonably agreed by the Parties, Seller shall provide a separate “Supplier Plan” setting forth (a) the plans and efforts of Seller to subcontract with businesses owned by women, minorities, disabled veterans, lesbian, gay, bisexual, or transgender persons, or persons with disabilities (“Diverse Suppliers”), as more fully defined under CPUC General Order 156 (provided, Persons shall qualify as Diverse Suppliers only to the extent such Persons are so certified with the Supplier Clearinghouse as set forth in CPUC General Order 156 or elect to voluntarily self-identify as such to Seller), and (b) the plans and efforts of Seller to subcontract with small, local, and diverse businesses, as more fully defined under CPUC General Order 156 (“Small Local Businesses”); provided, such report shall be in a form reasonably acceptable to Buyer.
ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments. Except as provided below in this Article 14, neither Party may voluntarily assign this Agreement or its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. Any Change of Control of Seller (whether voluntary or by operation of law) will be deemed an assignment and will require the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed; provided, a Change of Control of Seller shall not require Buyer’s consent if the assignee or transferee is a Permitted Transferee. Any assignment made without the required written consent, or in violation of the conditions to assignment set out below, shall be null and void.
14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement as collateral for any financing or refinancing (including any tax equity financing) of the Facility without the consent of Buyer. In connection with any financing or refinancing of the Facility by Seller, Buyer shall in good faith work with Seller and Lender to execute a customary and reasonable consent to collateral assignment of this Agreement, as reasonably agreed by Buyer, Seller and Lender; provided, Seller shall reimburse Buyer’s reasonable and documented out-of-pocket legal fees in connection with negotiating such consent to collateral assignment.
14.3 Permitted Assignment by Seller. Seller may, without the prior written consent of Buyer, transfer or assign this Agreement to: (a) an Affiliate of Seller or (b) any Person succeeding
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to all or substantially all of the assets of Seller (whether voluntary or by operation of law); if, and only if:
(a) the assignee is a Permitted Transferee;
(b) Seller has given Buyer Notice at least fifteen (15) Business Days before the date of such proposed assignment to the extent permitted under applicable Law, and if prior Notice is not permitted because Seller or any other Person involved in the transaction, directly or indirectly, is a publicly traded company and applicable Laws prohibit prior disclosure to Buyer, then within ten (10) Business Days after the date of such assignment and
(c) Seller (x) has, except in connection with a Change of Control, provided Buyer a written agreement signed by the Person to which Seller wishes to assign its interests that provides that such Person will assume all of Seller’s obligations and liabilities under this Agreement upon such transfer or assignment and (y) certifies that such Person meets the definition of a Permitted Transferee.
Notwithstanding the foregoing, any assignment by Seller, its successors or assigns under this Section 14.3 shall be of no force and effect unless and until such Notice and agreement by the assignee have been received and accepted by Buyer.
14.4 Shared Facilities; Portfolio Financing. Buyer agrees and acknowledges that Seller may elect to finance all or any portion of the Facility or the Interconnection Facilities or the Shared Facilities (1) utilizing tax equity or cash equity investment, and/or (2) through a Portfolio Financing, which may include cross-collateralization or similar arrangements. In connection with any financing or refinancing of the Facility, the Interconnection Facilities or the Shared Facilities by Seller or any Portfolio Financing, Buyer, Seller, Portfolio Financing Entity (if any), and Lender shall execute and deliver such further consents, approvals and acknowledgments as may be reasonable and necessary to facilitate such transactions; provided, Buyer shall not be required to agree to any terms or conditions which are reasonably expected to have a material adverse effect on Buyer and all reasonable attorney’s fees incurred by Buyer in connection therewith shall be borne by Seller.
14.5 Buyer Financing Assignment.
(a) Seller agrees that Buyer may assign a portion of its rights and obligations under this Agreement to a Person in connection with a municipal prepayment financing transaction (“Buyer Assignee”) at any time upon not less than fifteen (15) Business Days’ prior notice to Seller by delivering Notice of such assignment, which Notice must include a proposed assignment agreement substantially in the form attached hereto as Exhibit L (“Assignment Agreement”); provided, at the time of such assignment, such Buyer Assignee has a Credit Rating equal to Baa3 from Moody’s and BBB- from S&P. As reasonably requested by Buyer Assignee, Seller shall (i) provide Buyer Assignee with reasonable information and documentation with respect to Seller, including but not limited to account opening information, information related to forecasted generation, Credit Rating, and compliance with anti-money laundering rules, the Dodd-Frank Act,
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the Commodity Exchange Act, the Patriot Act and similar rules, regulations, requirements and corresponding policies; and (ii) promptly execute such Assignment Agreement and implement such assignment as contemplated thereby, subject only to the countersignature of Buyer Assignee and Buyer, the requirements of this Section 14.5, and Lender consent. From and after any execution of an Assignment Agreement, Buyer shall remain primarily responsible for all its obligations under this Agreement and the Assignment Agreement, including (i) the obligation to pay for all Product and (ii) any and all damages, costs and expenses of Seller associated with Buyer Assignee’s failure to take or pay for any such Product as contemplated by this Agreement. In no event shall any assignment by Buyer under this Section 14.5 purport to limit any rights of Seller under, or cause Seller to incur any additional obligations under, this Agreement other than de minimis administrative or ministerial obligations.
(b) Subject to the provisions of this Section 14.5(b), if Buyer proposes to use a financing structure other than the financing structure contemplated by the form attached hereto as Exhibit L, including modifying this Agreement to require Seller to deliver some or all of the Facility Energy using Inter-SC Trades or other structure that materially deviates from the terms of this Agreement or the form of Assignment Agreement, Seller agrees to use commercially reasonable efforts to negotiate with Buyer an assignment agreement providing for such structure, starting from the form of Assignment Agreement attached hereto, as such form shall be modified at the request of Seller to ensure that Seller is satisfied in its reasonable discretion that (x) it will be made financially whole (including for the time value of money) with respect to its financial position under such proposed financing structure compared to Seller’s financial position absent such proposed financing structure and the transactions contemplated thereby, including but not limited to with respect to Seller’s cash flows and liquidity position, and (y) it will not be required to (i) change the manner in which the Facility is operated, (ii) change the Delivery Point or the transmission path to the Delivery Point, (iii) procure additional or alternative transmission capacity, or (iv) change the way that Energy is delivered (provided, such restriction shall not preclude Inter-SC Trades at a different transaction point, such as SP-15); provided, such form must include the express requirements that Buyer Assignee shall make timely payment of all amounts due from Buyer under this Agreement, and that Buyer shall remain primarily liable for all of Buyer’s obligations under this Agreement and such agreement memorializing such proposed financing structure, including (i) the obligation to pay for all Product and (ii) any and all damages, costs and expenses of Seller associated with Buyer Assignee’s failure to take or pay for any such Product as contemplated by this Agreement; provided further, Seller’s execution of any such agreement memorializing such proposed financing structure shall be subject to Lender consent.
ARTICLE 15
DISPUTE RESOLUTION
15.1 Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC – 17]
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15.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either forty-five (45) days of initiating such discussions, or within sixty (60) days after Notice of the dispute, either Party may seek any and all remedies available to it at law or in equity, subject to the limitations set forth in this Agreement.
15.3 Attorneys’ Fees. In any proceeding brought to enforce this Agreement or because of the breach by any Party of any covenant or condition herein contained, each Party shall bear its own respective costs, expenses and attorneys’ fees in connection with said action.
15.4 Venue. In the event of any legal action to enforce or interpret this Contract, the sole and exclusive venue shall be the federal courts of the United States or, if such federal courts refuse jurisdiction notwithstanding the Parties’ agreement, then in the courts of the State of California, in either case sitting in Los Angeles County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, and waive any claim or defense that such forum is not convenient or proper.
ARTICLE 16
INDEMNIFICATION
16.1 Indemnification.
(a) Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its Affiliates, directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against all claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) (i) for personal injury or death to Persons and damage to the property of any third party to the extent arising out of, resulting from, or caused by the negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees, or agents, or (ii) for third-party claims resulting from the Indemnifying Party’s breach (including inaccuracy of any representation of warranty made hereunder), performance or non-performance of its obligations under this Agreement. (b) Seller shall indemnify, defend and hold harmless Buyer and its Affiliates, directors, officers, employees from and against all claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) in connection with any claims of infringement upon or violation of any trade secret, trademark, trade name, copyright, patent, or other intellectual property rights of any third party by equipment, software, applications or programs (or any portion of same) used in connection with the Facility (an “IP Indemnity Claim”). (c) Nothing in this Section 16.1 shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages resulting from its sole negligence, intentional acts or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy.
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16.2 Claims. Promptly after receipt by a Party of any claim or Notice of the commencement of any action, administrative, or legal proceeding, or investigation as to which the indemnity provided for in this Article 16 may apply, the Indemnified Party shall notify the Indemnifying Party in writing of such fact. The Indemnifying Party shall assume the defense thereof with counsel designated by the Indemnifying Party and satisfactory to the Indemnified Party, provided, if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Indemnifying Party, the Indemnified Party shall have the right to select and be represented by separate counsel, at the Indemnifying Party’s expense, unless a liability insurer is willing to pay such costs. If the Indemnifying Party fails to assume the defense of a claim meriting indemnification, the Indemnified Party may at the expense of the Indemnifying Party contest, settle, or pay such claim; provided, settlement or full payment of any such claim may be made only following consent of the Indemnifying Party or, absent such consent, written opinion of the Indemnified Party’s counsel that such claim is meritorious or warrants settlement. Except as otherwise provided in this Article 16, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 16, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s damages net of any insurance proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party to obtain such insurance proceeds.
ARTICLE 17
INSURANCE
17.1 Insurance.
(a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, the following types and minimum limits of insurance with a carrier rated “A- VII” or higher by A.M. Best’s Key Rating Guide: (i) commercial general liability insurance, including products and completed operations and personal injury (including bodily injury and death) and property damage insurance, with a minimum limit of liability of One Million Dollars ($1,000,000) per occurrence, and a general aggregate of not less than Two Million Dollars ($2,000,000) for combined bodily injury and property damage; and (ii) an umbrella insurance policy in a minimum limit of liability of Ten Million Dollars ($10,000,000). The amounts of liability insurance described in this Article 17 may be satisfied by primary insurance or by any combination of primary and excess/umbrella insurance. Such insurance shall contain standard cross-liability and severability of interest provisions such that each Person is protected in the same manner as though a separate policy has been issued to each but nothing therein shall operate to increase the insurance company’s liability beyond the amount the insurance company would have been liable if only one Person or interest had been named as insured. The liability insurance policies referenced in this Article 17 shall (x) provide an endorsement waiving rights of subrogation against Buyer, (y) name Buyer as additional insured on all required liability insurance (except workers compensation), and (z) be primary to any insurance of Buyer that may apply to such occurrence, accident or claim and no “other insurance” provision shall be applicable to Buyer or any additional insureds, by virtue of having been named an additional insured under any policy of insurance.
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(b) Workers Compensation and Employer’s Liability Insurance. Employers’ Liability insurance shall not be less than One Million Dollars ($1,000,000) providing statutory benefits as required by Law (if any exposure exists) for injury, sickness, disability or death of the employees.
(c) Business Auto Liability Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of One Million Dollars ($1,000,000) combined single limit. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired motor vehicles in the performance of the Agreement.
(d) Property Insurance. Seller shall maintain or cause to be maintained property insurance (construction all-risk or operational all-risk as may be applicable) covering the Facility against physical loss or damage, including coverage for natural perils including but not limited to flood, earthquake, windstorm, severe convective storm and wildfire, all with limits in accordance with industry standard recognizing that natural perils may be subject to a lower sublimit. Coverage will be on an “all-risk” basis including mechanical and electrical breakdown. (e) Subcontractor Insurance. Seller shall require all of its tier-one subcontractors to carry: (i) comprehensive general liability insurance with a combined single limit of coverage not less than One Million Dollars ($1,000,000); (ii) workers’ compensation insurance and employers’ liability coverage in accordance with applicable requirements of Law; and (iii) business auto insurance for bodily injury and property damage with limits of one million dollars ($1,000,000) per occurrence. Seller shall use commercially reasonable efforts to cause all subcontractors shall name Seller as an additional insured to insurance carried pursuant to clauses (e)(i) and (e)(iii). Seller shall use commercially reasonable efforts to cause all subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 17.1(e).
(f) Evidence of Insurance. Within ten (10) days after execution of the Agreement and upon annual renewal thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage. Such certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. All insurance required herein shall be primary coverage without right of contribution from any insurance of Buyer, and such policies shall be endorsed with a waiver of subrogation in favor of Buyer for all work performed by Seller, its employees, agents and subcontractors and any subrogation rights which may pass to Seller’s insurance carriers for the payment of any claims. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer. (g) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 17, Seller, among other things and without restricting Buyer’s remedies under the Law or otherwise, shall, at its own cost and expense, comply with the terms and conditions of Article 16.
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ARTICLE 18
CONFIDENTIAL INFORMATION
18.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: (a) the terms and conditions of, and proposals and negotiations related to, this Agreement, and (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.
18.2 Duty to Maintain Confidentiality. The Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”) shall not disclose Confidential Information to a third party (other than the Party’s employees, lenders, counsel, accountants, directors or advisors, or any such representatives of a Party’s Affiliates, who have a need to know such information and have agreed to keep such terms confidential) except in order to comply with any applicable Law, regulation, or any exchange, control area or independent system operator rule or in connection with any court or regulatory proceeding applicable to such Party or any of its Affiliates; provided, each Party shall, to the extent practicable, use reasonable efforts to prevent or limit the disclosure. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation. The Parties agree and acknowledge that nothing in this Section 18.2 prohibits a Party from disclosing any one or more of the commercial terms of a transaction (other than the name of the other Party unless otherwise agreed to in writing by the Parties) to any industry price source for the purpose of aggregating and reporting such information in the form of a published energy price index.
The Parties acknowledge and agree that the Agreement and any transactions entered into in connection herewith are subject to the requirements of the California Public Records Act (Government Code Section 6250 et seq.). In order to designate information as confidential, the Disclosing Party must clearly stamp and identify the specific portion of the material designated with the word “Confidential.” The Parties agree not to over-designate material as Confidential Information. Over-designation includes stamping whole agreements, entire pages or series of pages as “Confidential” that clearly contain information that is not Confidential Information.
Upon request or demand of any third person or entity not a Party hereto to Buyer pursuant to the California Public Records Act for production, inspection and/or copying of Confidential Information (“Requested Confidential Information”), Buyer shall as soon as practical, and no later than ten (10) Business Days after receipt, notify Seller in writing via email that such request has been made. Seller shall be solely responsible for taking at its sole expense whatever legal steps are necessary to prevent release of the Requested Confidential Information to the third party by
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Buyer. If Seller takes no such action after receiving the foregoing Notice from Buyer, Buyer shall, at its discretion, be permitted to comply with the third party’s request or demand to the extent Buyer reasonably believes that disclosure is required under the California Public Records Act and is not required to defend against it. If Seller does take or attempt to take such action, Buyer shall provide timely and reasonable cooperation to Seller, if requested by Seller, and Seller agrees to indemnify and hold harmless Buyer, its officers, employees and agents (“Buyer’s Indemnified Parties”), from any claims, liability, award of attorneys’ fees, or damages, and to defend any action, claim or lawsuit brought against any of Buyer’s Indemnified Parties for Buyer’s refusal to disclose any Requested Confidential Information.
18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party, and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth herein. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.
18.4 Further Permitted Disclosure. Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by the Receiving Party to any of its agents, consultants, contractors, trustees, or actual or potential investors or financing parties (including, in the case of Seller, its Lender(s)), so long as such Person to whom Confidential Information is disclosed agrees in writing to be bound by confidentiality provisions that are at least as restrictive as this Article 18 to the same extent as if it were a Party.
18.5 Press Releases. Neither Party shall issue or make (or cause its Affiliates to issue or make) a written press release or written public statement regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such written press release or written public statement, which agreement shall not be unreasonably conditioned, withheld or delayed.
ARTICLE 19
MISCELLANEOUS
19.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and those of the Cover Sheet or any Exhibit, the provisions of first the Cover Sheet, and then this Agreement shall prevail, and such Exhibit shall be corrected accordingly. This Agreement shall be considered for all purposes as prepared
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through the joint efforts of the Parties and shall not be construed against one Party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.
19.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, this Agreement may not be amended by electronic mail communications.
19.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.
19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co-venturers in or lessor/lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement) and/or, to the extent set forth herein, any Lender and/or Indemnified Party.
19.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.
19.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable Law.
19.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original.
19.8 Electronic Delivery. This Agreement may be duly executed and delivered by a Party by electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party.
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19.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
19.10 No Recourse to Members of Buyer. Buyer is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Buyer shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Seller shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer’s constituent members, or the employees, directors, officers, consultants or advisors of Buyer or its constituent members, in connection with this Agreement.
19.11 Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. §366 in any Bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. §101-1532.
19.12 Change in Electric Market Design.
(a) If a change in the CAISO Tariff renders this Agreement or any provisions hereof incapable of being performed or administered, then any Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 15. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, and (ii) all of the unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution.
(b) If any of the Transmission Systems utilized to deliver Product to the Delivery Point under this Agreement are integrated into a new or existing regional transmission organization or independent system operator and such integration has a material and adverse impact on either Party’s performance under this Agreement, including the costs of either Party to perform, then the affected Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to restore the balance of benefits, burdens, and obligations set forth in this Agreement as of the Effective Date. Upon delivery of such a request,
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Buyer and Seller shall engage in such negotiations in good faith; provided, neither Party shall be obligated to amend this Agreement if such amendment(s) would adversely affect, or could reasonably be expected to have or result in any adverse effect on, any of such Party’s rights, benefits, costs, revenue, value of the Agreement, risks and/or obligations under this Agreement.
19.13 Further Assurances. Each of the Parties hereto agrees to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than or in addition to those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Execution Date.
SUNZIA WIND POWERCO LLC,
a Delaware limited liability company
By:
Name:
Title:
CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA,
a California joint powers authority
By:
Name:
Title:
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EXHIBIT A
FACILITY DESCRIPTION
The Facility description provided herein reflects Seller’s expectation for the Facility and the Site as of the Effective Date. Seller may, by Notice to Buyer prior to the Construction Start Date, modify the Site Name and Site Location within the counties set forth below. Except as otherwise provided in the Agreement, Seller shall not make any alteration or modification to the Facility which results in a change to the Guaranteed Capacity, Guaranteed RA Amount, or to the anticipated output of the Facility without Buyer’s prior written consent; provided, Seller shall be permitted to repower the Facility after the tenth (10th) Contract Year so long as Seller continues to be obligated to deliver Guaranteed Energy Production and Guaranteed RA Amount associated with the Guaranteed Capacity during such repower; upon any such repower that changes the Installed Capacity, Seller shall deliver an updated Installed Capacity Certificate in the form of Exhibit I.
Site Name: SunZia Wind Project, consisting of SunZia Wind North and SunZia Wind South Site Map:
[Site Map shown on next page]
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Project Anticipated Nameplate
Capacity (MW)*
Ratio to Facility
Anticipated
Nameplate Capacity
Wind Turbine
Model(s)
Facility 3,515.4
SunZia Wind North 1,089 Vestas
SunZia Wind South 2,426.4 To be provided by
Seller pursuant to
Section 13.1(g)
* the “Anticipated Nameplate Capacity” listed above is the anticipated nameplate capacity for the Facility and each sub-project as of the Effective Date (as defined in the Original Agreement), which shall be subject to modification pursuant to the terms of this Agreement.
Site Location: Lincoln, Torrance and San Miguel Counties, New Mexico Delivery Point: CAISO Scheduling Point-Intertie combination at PALOVRDE_ASR-APND and PVWEST.
Point of Interconnection: the Pete Heinrich AC Switching Station.
Transmission Provider: SunZia Transmission, LLC; Salt River Project Agricultural Improvement and Power District; Tucson Electric Power Company; Desert Southwest Region of Western Area Power Administration; and such other Persons who meet the definition of a Transmission Provider hereunder from time to time.
Technology: Utility Scale Wind Technology
Guaranteed Capacity: 575 MW
State: New Mexico
Facility Metering Points: See Exhibit R, as may be updated by Seller from time to time upon Notice to Buyer, so long as such update does not have a materially adverse effect on Buyer, as determined by Buyer in its reasonable discretion.
Participating Transmission Owner: SunZia Transmission, LLC Alternate Facility Descriptions: the Western Spirit Wind Complex, consisting of the below projects:
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1. Clines Corners Wind Project: a 324 MW wind-powered electricity generating facility located in Torrance and Guadalupe Counties, in the State of New Mexico, with CAISO IDs CLINESCO_3_PVDYN and CLINESCO_3_WBDYN.
2. Duran Mesa Wind Project: a 105 MW wind-powered electricity generating facility located in Torrance County, in the State of New Mexico, with CAISO ID DURNMESA_3_WBDYN.
3. Tecolote Wind Project: a 272 MW wind-powered electricity generating facility located in Torrance and Guadalupe Counties, in the State of New Mexico, with CAISO ID TECOLOTE_3_WBDYN.
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EXHIBIT B
FACILITY CONSTRUCTION AND COMMERCIAL OPERATION
1. Construction of the Facility.
(a) “Construction Start” will occur upon Seller’s acquisition of all applicable regulatory authorizations, approvals and permits for commencement of construction of the Facility following Seller’s execution of an EPC Contract related to the Facility, and once Seller has issued a notice to proceed that authorizes the contractor to mobilize to Site and begin physical construction (including, at a minimum, excavation for foundations or the installation or erection of improvements) at the Site, and has ordered all essential equipment and supplies as, in each case, can reasonably be considered necessary so that physical construction of the Facility may begin and proceed to completion without foreseeable interruption of material duration. The date of Construction Start will be evidenced by Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit J hereto, and the date certified therein shall be the “Construction Start Date.”
(b) Subject to Section 5 of this Exhibit B, Seller may extend the Guaranteed Construction Start Date by paying Daily Delay Damages to Buyer for each day Seller desires to extend the Guaranteed Construction Start Date, not to exceed a total of days of extensions by such payment of Daily
Delay Damages. On or before the date that is ten (10) days prior to the then-current Guaranteed Construction Start Date, Seller shall provide Notice and payment to Buyer of the Daily Delay Damages for the number of days of extension to the Guaranteed Construction Start Date (“Daily Delay Damages Payment”). If Seller achieves Construction Start prior to the Guaranteed Construction Start Date, as extended by the payment of Daily Delay Damages, Buyer shall refund to Seller the Daily Delay Damages for each day Seller achieves Construction Start prior to the Guaranteed Construction Start Date times the Daily Delay Damages, not to exceed the total amount of Daily Delay Damages paid by Seller pursuant to this Section 1(b); provided such Daily Delay Damages Payment may, at Seller’s option, be in the form of cash or one or more Letter(s) of Credit, which Letter(s) of Credit Buyer may immediately draw on, on a pro rata basis, to receive such Daily Delay Damages Payment; provided, if Seller provides such Letter(s) of Credit to Buyer prior to providing Notice of the Daily Delay Damages Payment as set forth above, then Buyer shall not draw on such Letter(s) of Credit until Buyer receives such Notice from Seller. Additionally, if Seller achieves Commercial Operation on or before the Guaranteed Commercial Operation Date (not including any extensions to such date resulting from Seller’s payment of Commercial Operation Delay Damages, but as may be extended pursuant to a Development Cure Period), then Buyer shall refund to Seller all Daily Delay Damages paid by Seller and not previously refunded by Buyer.
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2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when Seller has fulfilled all of the conditions precedent as set forth in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”).
(a) Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. Seller may continue to increase the Installed Capacity of the Facility after the Commercial Operation Date and will notify Buyer from time to time of such increases by delivering a certificate from a Licensed Professional Engineer substantially in the form attached as Exhibit I hereto; when the Installed Capacity is complete, Seller shall include a statement to that effect in a Notice accompanying the final such certificate.
(b) Subject to Section 2.2 of the Agreement and Section 5 of this Exhibit B, if Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date (as it may be otherwise extended hereunder), Seller may elect to extend the Guaranteed Commercial Operation Date by paying Commercial Operation Delay Damages to Buyer for each day Seller desires to extend the Guaranteed Commercial Operation Date, not to exceed a total of days of extensions by such payment of Commercial Operation Delay Damages. If Seller elects to extend the Guaranteed Commercial Operation Date, on or before the date that is five (5) Business Days prior to the then-current Guaranteed Commercial Operation Date, Seller shall provide Notice and payment to Buyer of the Commercial Operation Delay Damages for the number of days of extension to the Guaranteed Commercial Operation Date (“COD Delay Damages Payment”); provided, such COD Delay Damages Payment may, at Seller’s option, be in the form of cash or one or more Letter(s) of Credit, which Letter(s) of Credit Buyer may immediately draw on, on a pro rata basis, to receive such COD Delay Damages Payment; provided, if Seller provides such Letter(s) of Credit to Buyer prior to providing Notice of the COD Delay Damages Payment as set forth above, then Buyer shall not draw on such Letter(s) of Credit until Buyer receives such Notice from Seller.
If Seller achieves Commercial Operation prior to the Guaranteed Commercial Operation Date as extended by the payment of the COD Delay Damages Payment, Buyer shall refund to Seller in cash the Commercial Operation Delay Damages for each day Seller achieves Commercial Operation prior to the Guaranteed Commercial Operation Date, as extended, times the Commercial Operation Delay Damages, not to exceed the total amount of the COD Delay Damages Payment paid by Seller pursuant to this Section 2(b).
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3. Termination for Failure to Achieve Commercial Operation. If the Facility has not achieved Commercial Operation on or before the Guaranteed Commercial Operation Date (as may be extended hereunder), Buyer may elect to terminate this Agreement in accordance with Sections 11.1(b)(ii) and 11.2. If the Facility has not achieved Commercial Operation on or before the Guaranteed Commercial Operation Date (as may be extended hereunder), and Buyer has not terminated this Agreement on or before the date that is sixty (60) days after the Guaranteed Commercial Operation Date (as may be extended hereunder) in accordance with Sections 11.1(b)(ii) and 11.2, Seller may elect to terminate this Agreement upon Notice to Buyer, it shall not be an Event of Default by either Party, and neither Party shall have any liability to the other Party, except for the payment by Seller, as liquidated damages, of the Damage Payment, and those obligations that survive termination as expressly described in Section 2.1(b) and Section 11.6.
4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall, subject to notice and documentation requirements set forth below, be extended on a day-for-day basis (the “Development Cure Period”) for the duration of any and all delays arising out of the following circumstances to the extent (i) the following circumstances are not the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, and (ii) such delays could not be mitigated by Seller using commercially reasonable efforts to overcome the delays; provided, if such delays occur concurrently, the Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date, as applicable, shall only be extended by a single day for each such concurrent day of delay:
(a) Seller has not acquired the Material Permits by the Guaranteed Construction Start Date, despite the exercise of diligent and commercially reasonable efforts by Seller; or
(b) a Force Majeure Event occurs; or
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(c) the Interconnection Facilities or the SunZia Transmission Line are not complete and ready for the Facility to achieve Initial Synchronization by the expected date for Initial Synchronization as set forth on the Cover Sheet, despite the exercise of commercially reasonable efforts by Seller;
(e) a delay caused by Buyer.
Seller shall submit any claim for Development Cure Period delays within (x) three (3) Business Days of the applicable milestone in the case of (a), (c) or (d) above, and (y) fourteen (14) days after the initial occurrence of the claimed Force Majeure Event in the case of (b) above, in substantially the form set forth in Exhibit T. Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period (other than the extensions granted pursuant to clause 4(e) above) shall not exceed one hundred eighty (180) days, for any reason, including a Force Majeure Event, and the cumulative extensions granted to the Guaranteed Commercial Operation Date by the payment of Commercial Operation Delay Damages and any Development Cure Period(s) (other than the extensions granted pursuant to clause 4(e) above) shall not exceed . Upon request from Buyer, Seller shall provide
documentation demonstrating to Buyer’s reasonable satisfaction that the delays described above did not result from Seller’s actions or failure to take commercially reasonable actions.
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EXHIBIT C
COMPENSATION
Buyer shall compensate Seller for the Product in accordance with this Exhibit C. (a) Renewable Rate. During the Delivery Term, Buyer shall pay Seller the following amounts for each MWh of Facility Energy, retroactively delivered Replacement Energy delivered pursuant to Section 4.7, and Deemed Delivered Energy during each Contract Year:
(i) Facility Energy. For each MWh of Facility Energy and retroactively delivered Replacement Energy delivered pursuant to Section 4.7, in each Settlement Interval or Settlement Period, as applicable, the difference of (A) the Renewable Rate, minus (B) the Day-Ahead Market LMP applicable to the Delivery Point for such Settlement Interval or Settlement Period, as applicable; provided, (x) if the Day-Ahead Market LMP applicable to the Delivery Point for such Settlement Interval or Settlement Period, as applicable, is less than the Floor Price, (A) if the LMP in the Real-Time Market at the Delivery Point is greater than or equal to the Floor Price, Buyer shall pay the difference of (1) the Renewable Rate minus (2) the LMP in the Real-Time Market at the Delivery Point, or (B) if the LMP in the Real-Time Market at the Delivery Point is less than the Floor Price, then such LMP in the Day-Ahead Market will be deemed to be the Floor Price for purposes of this clause (a), and (y) if the result of the foregoing results in a negative value, then Seller shall pay Buyer the absolute value of such result (which payment may be applied as a credit to Buyer on Seller’s monthly invoice); and
(ii) Deemed Delivered Energy. For each MWh of Deemed Delivered Energy in each Settlement Interval or Settlement Period, as applicable, Buyer shall pay Seller the Renewable Rate. In addition, during the period in which Seller is receiving the PTC for the Facility Energy, Buyer shall also pay the PTC Amount for all Deemed Delivered Energy; provided, however, Buyer shall not pay the PTC Amount for Deemed Delivered Energy that was generated by the Facility and sold to a third party during a Market Curtailment Period pursuant to Section 4.4(b).
Notwithstanding the foregoing, Seller shall receive no compensation from Buyer, including for the PTC Amount, for Deemed Delivered Energy to the extent that Seller is required to reduce delivery of Facility Energy or would be required to reduce delivery of Deemed Delivered Energy as a result of any Curtailment Period.
(b) Excess Contract Year Deliveries Over 115%. Notwithstanding the foregoing, if at any point in a Contract Year the amount of Facility Energy plus Deemed Delivered Energy exceeds one hundred fifteen percent (115%) of the Expected Energy for such Contract Year, Seller shall provide Notice to Buyer thereof and Buyer shall have the right, but not the obligation, to purchase additional Product (which shall include the purchase of Replacement Energy and Deemed Delivered Energy) during such Contract Year. If Buyer elects not to purchase such additional Product for the remainder of such Contract Year, Buyer shall notify Seller thereof, and (i) Seller’s obligation to deliver and Buyer’s obligation to purchase Product will stop five (5) Business Days following the receipt of such notice by Seller, until the first day of the following Contract Year, and (ii) Seller may sell and deliver Product to any third party until the first day of the following
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Contract Year. If Seller makes third-party sales in accordance with this paragraph, Seller shall be entitled to all revenues and shall bear all costs associated with such sales. (c) Excess Settlement Interval Deliveries. If during any Settlement Interval or Settlement Period, as applicable, Seller delivers Facility Energy in excess of the product of (a) the Hourly Delivery Cap multiplied by (b) the duration of the Settlement Interval or Settlement Period, as applicable, expressed in hours (“Excess MWh”), then the price applicable to all such Excess MWh in such Settlement Interval shall be zero dollars ($0), and if there is a Negative LMP during such Settlement Interval, Seller shall pay to Buyer an amount equal to the absolute value of the Negative LMP times such Excess MWh.
(d) Test Energy. Test Energy is compensated in accordance with Section 3.6. (e) Tax Credits. The Parties agree that the Renewable Rate is not subject to adjustment or amendment if Seller fails to receive any Tax Credits, or if any Tax Credits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Credits. Seller shall bear all risks, financial and otherwise, throughout the Contract Term, associated with Seller’s or the Facility’s eligibility to receive Tax Credits or to qualify for accelerated depreciation for Seller’s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase and price for and Seller’s obligation to deliver Facility Energy and Product, shall be effective regardless of whether construction of the Facility (or any portion thereof) or the sale of Facility Energy is eligible for, or receives Tax Credits during the Contract Term.
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EXHIBIT D
SCHEDULING COORDINATOR RESPONSIBILITIES
(a) Seller as Scheduling Coordinator for the Facility. Seller shall act as the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility to Schedule and deliver Test Energy and the Product at the Delivery Point. Seller shall bid the Facility’s generation into the applicable CAISO market pursuant clause (b) below. Each Party shall perform all scheduling activities in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and (iii) Prudent Operating Practice. As between Buyer and Seller hereunder, Seller shall be responsible for reporting the Facility Energy delivered to the CAISO in its FERC electronic quarterly reports. The Parties agree to communicate and cooperate as necessary in order to address any scheduling or settlement issues as they may arise, and to work together in good faith to resolve them in a manner consistent with the terms of the Agreement. To the extent required under the CAISO Tariff, Seller (as the Facility’s SC) shall ensure that all Facility Energy is electronically tagged (E-Tagged) in accordance with Prudent Operating Practice, this Agreement, and the applicable CAISO Tariff protocols and Scheduling practices. (b) CAISO Market Participation.
(i) (x) Seller shall, at Seller’s election, submit either bids equal to or below the Floor Price, or Self-Schedules, in each case for the Day-Ahead Forecast into the Day-Ahead Market, and (y) Seller shall, at Seller’s election, submit either bids equal to or below the Floor Price, or Self-Schedules, in each case into the Real-Time Market for any portion of the expected Facility Energy above the amount of the Day-Ahead Forecast that is awarded a Day-Ahead Schedule. Seller may, but is not required to, reduce deliveries of Product during periods in which the LMP in the Day-Ahead Market or Real-Time Market at the Delivery Point is less than the Floor Price, as applicable; provided, Seller shall not reduce deliveries of Product below the amount of the Day-Ahead Forecast that has been awarded a Day-Ahead Schedule during periods in which the LMP in the Real-Time Market at the Delivery Point is less than the Floor Price; provided further, if Seller does not reduce deliveries of Product during such periods, Seller shall be compensated for such Facility Energy pursuant to Section (a) in Exhibit C, and such Facility Energy shall not be considered to be Deemed Delivered Energy.
(ii) The Parties agree to use good faith efforts to work together to permit Buyer to set the Floor Price on a basis upon not less than ten (10) Business Days’ Notice to Seller; provided, however, that Buyer shall not have the right to set the Floor Price at a price that is greater than (i) for the period during which Seller is eligible to obtain PTCs for Facility Energy, the Negative PTC Value, and (ii) after the period during which Seller is eligible to obtain PTCs for Facility Energy, zero dollars per MWh ($0/MWh). (c) CAISO Costs and Revenues. As the Scheduling Coordinator for the Facility, Seller shall be responsible for all CAISO costs, including without limitation, all penalties, Imbalance Energy charges, and other charges, and shall be entitled to all CAISO revenues, including without limitation, credits, Imbalance Energy payments, and revenues associated with CAISO dispatches,
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bid cost recovery, Inter-SC Trade credits, or other credits in respect of the Product scheduled or delivered from the Facility. Seller shall be responsible for all CAISO penalties resulting from any failure by Seller to abide by the CAISO Tariff. The Parties agree that any Availability Incentive Payments (as defined in the CAISO Tariff) are for the benefit of Seller and for Seller’s account and that any Non-Availability Charges (as defined in the CAISO Tariff) are the responsibility of Seller and for Seller’s account. In addition, if during the Delivery Term, the CAISO implements or has implemented any sanction or penalty related to scheduling, outage reporting, or generator operation, the cost of such sanctions or penalties arising from the scheduling, outage reporting, or generator operation of the Facility shall be Seller’s responsibility. (d) Master File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master 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. (e) Customer Market Results Interface Access. Seller shall provide to Buyer read-only access to Seller’s (or its SC’s) customer market results interface for the Facility.
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EXHIBIT E
PROGRESS REPORTING FORM
Each Progress Report must include the following items:
1. Executive summary.
2. Current facility description.
3. Current Site plan of the Facility.
4. Description of any planned changes to the Facility or the Site from the previous Progress Report.
5. Gantt chart or 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 or month, as applicable.
8. Written description about the progress relative to Seller’s Milestones, including (i) whether Seller has met or is on target to meet the Milestones, and (ii) if a Milestone has been delayed, a description of the cause of the delay, potential courses of action to achieve such missed Milestone and all subsequent Milestones.
9. List of issues that could reasonably foreseeably 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. Schedule of status of all major construction agreements, permits, financing agreements and major equipment purchase orders showing the start dates, anticipated completion dates, and completion percentages.
12. Schedule of all Material Permits obtained through the date of the Progress Report.
13. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the PTO’s Transmission System and all other interconnection utility services.
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EXHIBIT F-1
MONTHLY EXPECTED AVAILABLE CAPACITY
[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 JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
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.
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EXHIBIT F-2
MONTHLY EXPECTED FACILITY ENERGY
[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 JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
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.
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EXHIBIT G
GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
In accordance with Section 4.7, if Seller fails to achieve the Guaranteed Energy Production during any Performance Measurement Period, a liquidated damages payment shall be due from Seller to Buyer, calculated as follows:
[(A – B) * (C – D)] – (E + F)
where:
A = the Guaranteed Energy Production amount for the Performance Measurement Period, in MWh
B = the Adjusted Energy Production amount for the Performance Measurement Period, in MWh
C = Replacement price for the Performance Measurement Period, in $/MWh, which is the sum of (a) the simple average of the LMP in the Day-Ahead Market at the Delivery Point for all of the hours in the Performance Measurement Period, plus (b) the REC Price
D = the Renewable Rate, in $/MWh
E = The amount of Energy Replacement Damages paid by Seller with respect to the immediately preceding Performance Measurement Period F = The product of (a) the amount of Replacement Product in MWhs delivered by Seller with respect to the immediately preceding Contract Year and (b) the price which is (C – D)
“Adjusted Energy Production” shall mean the sum of the following: Facility Energy + Deemed Delivered Energy + Lost Output.
“Replacement Energy” means Energy that is produced by the Facility or the Alternate Facility and provided by Seller to Buyer as Replacement Product, in an amount equal to the amount of Replacement Green Attributes provided by Seller as Replacement Product for the same Performance Measurement Period.
“Replacement Green Attributes” means Renewable Energy Credits that are of the same Portfolio Content Category (i.e., PCC1) as the Green Attributes portion of the Product, and that may be used in connection with the same compliance period applicable to Buyer under the RPS program as the Renewable Energy Credits that would have been generated by the Facility.
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“Replacement Product” means (a) Replacement Energy, and (b) Replacement Green Attributes in an amount not to exceed ten percent (10%) of the Expected Energy for the Contract Year in connection with which such Replacement Product is delivered.
No payment shall be due if the calculation of (a) (A – B), (b) (C – D), or (c) [(A – B) * (C – D)] – (E + F), yields a negative number. In no event will Buyer owe any payment to Seller pursuant to this Exhibit G.
Within sixty (60) days after each Contract Year, Buyer shall send Seller Notice of the amount of damages owing, if any, which shall be payable to Buyer before the later of (a) thirty (30) days of such Notice and (b) ninety (90) days after each Performance Measurement Period; provided, the amount of damages owing shall be adjusted to account for Replacement Product, if any, delivered after each applicable Performance Measurement Period.
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EXHIBIT H
FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by the undersigned, a licensed professional engineer and duly authorized representative of ____________________ in its capacity as independent engineer (“Engineer”) for purposes of this certification, to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”), pursuant to the [agreement between Seller and Engineer] and in connection with that certain Amended and Restated Renewable Power Purchase Agreement dated _______ (“Agreement”) by and between [Pattern Entity] (“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.
Engineer hereby certifies and represents to Buyer the following:
(1) Wind turbines with a nameplate capacity at least equal to at least 100% of the Guaranteed Installed Capacity have been installed at the Facility. (2) Testing and commissioning of each wind turbine referred to in paragraph (1) above has been completed in accordance with the turbine supply agreement, and each such wind turbine has delivered electricity to the Point of Interconnection specified in the Interconnection Agreement.
(3) The Participating Transmission Owner has provided documentation supporting full unrestricted release of at least the Guaranteed Installed Capacity for Commercial Operation on _______[DATE]_____.
(4) the CAISO has provided notification that the Energy generation from a portion of the Facility that is no smaller than the Guaranteed Installed Capacity may be scheduled into the CAISO markets on an unconditional basis in accordance with the CAISO Tariff and Business Practice Manual(s) as applicable, including the New Resource Implementation process.
EXECUTED on this ________ day of _____________, 20__.
Sincerely,
By:
[NAME], P.E.
[TITLE]
New Mexico License No. [##]
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EXHIBIT I
FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by the undersigned, a licensed professional engineer and duly authorized representative of ________________ in its capacity as independent engineer (“Engineer”) for purposes of this certification, to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”), pursuant to the [agreement between Seller and Engineer] and in connection with that certain Renewable Power Purchase and Sale Agreement dated __________ (“Agreement”) by and between [Pattern Entity] (“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 the date set forth below, [___] wind turbines with an aggregate nameplate capacity of [__], which is the Installed Capacity as of the date hereof, have been installed at the Facility, and testing and commissioning of each such wind turbines has been completed in accordance with the turbine supply agreement and each such wind turbine has delivered electricity to the Point of Interconnection specified in the Interconnection Agreement.
EXECUTED on this ________ day of _____________, 20__.
Sincerely,
By:
[NAME], P.E.
[TITLE]
New Mexico License No. [##]
Exp. [DATE]
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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 Amended and Restated Renewable Power Purchase 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) the EPC Contract related to the Facility was executed on __________; (2) the notice to proceed with the construction of the Facility was issued on ______________ (attached);
(3) the Construction Start Date (as defined in Exhibit B of the Agreement) has occurred as of ___________; and
(4) 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).
IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:
Its:
Date:
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EXHIBIT K
FORM OF LETTER OF CREDIT
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [●]
DATE: [●]
BENEFICIARY:
APPLICANT: SUNZIA WIND POWERCO LLC
1088 SANSOME STREET, SAN FRANCISCO, CA 94111
EXPIRATION DATE: [●]
AMOUNT/CURRENCY: [●]
AT THE REQUEST OF AND FOR THE ACCOUNT OF APPLICANT, WE, [INSERT BANK NAME AND ADDRESS] (“ISSUER”), HEREBY ESTABLISH IN YOUR FAVOR IN
RESPECT OF OBLIGATIONS OF APPLICANT OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER [●] (“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, WHEREBY,
SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, BENEFICIARY IS
HEREBY AUTHORIZED TO DRAW ON US, BY SIGHT, BY ITS DRAWING STATEMENT
AS PROVIDED HEREIN, FOR AN AGGREGATE AMOUNT UP TO BUT NOT EXCEEDING [●] (THE “FACE AMOUNT”).
WE ARE ADVISED THIS LETTER OF CREDIT IS IRREVOCABLE AND IS ESTABLISHED
AS SECURITY PURSUANT TO THAT CERTAIN RENEWABLE POWER PURCHASE AGREEMENT DATED AS OF ___________, 2023 BETWEEN APPLICANT AND BENEFICIARY (THE “AGREEMENT”).
THIS LETTER OF CREDIT SHALL BE EFFECTIVE IMMEDIATELY AND SHALL EXPIRE ON [●], WHICH IS ONE YEAR AFTER THE ISSUE DATE OF THIS LETTER OF CREDIT,
OR ANY EXPIRATION DATE EXTENDED IN ACCORDANCE WITH THE TERMS HEREOF (THE “EXPIRATION DATE”).
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ADDITIONAL TWELVE (12) MONTH PERIODS FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, BUT IN NO EVENT TO AN EXPIRATION DATE LATER THAN [●] (THE “FINAL EXPIRATION DATE”), UNLESS AT LEAST NINETY (90) DAYS PRIOR TO THE
EXPIRATION DATE WE SEND NOTICE IN WRITING TO YOU VIA HAND DELIVERY OR
OVERNIGHT COURIER AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO
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AUTOMATICALLY EXTEND THIS LETTER OF CREDIT FOR ANY ADDITIONAL PERIOD.
ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF CREDIT YOU MAY
DRAW ON US HEREUNDER FOR UP TO THE FULL UNUTILIZED AMOUNT AVAILABLE AS OF THE DATE OF DRAWING ON THIS LETTER OF CREDIT.
PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED UNDER THIS LETTER OF
CREDIT (PROVIDED THAT THE CUMULATIVE AGGREGATE AMOUNT THAT MAY BE
DEMANDED UNDER THIS LETTER OF CREDIT SHALL NOT EXCEED THE FACE
AMOUNT), AND THIS LETTER OF CREDIT SHALL REMAIN IN FULL FORCE AND EFFECT WITH RESPECT TO ANY CONTINUING BALANCE.
FUNDS UNDER THIS LETTER OF CREDIT SHALL BE AVAILABLE TO THE
BENEFICIARY UPON PRESENTATION TO US OF A DATED DRAWING CERTIFICATE
IN THE FORM OF EXHIBIT A HERETO (WHICH IS AN INTEGRAL PART OF THIS LETTER OF CREDIT) PURPORTEDLY SIGNED BY THE BENEFICIARY’S DULY AUTHORIZED REPRESENTATIVE.
THE DRAWING CERTIFICATE MAY BE PRESENTED BY (A) PHYSICAL DELIVERY TO [ADDRESS] OR (B) BY FACSIMILE TO FACSIMILE NUMBER [●] (EACH SUCH DRAWING, A “FAX DRAWING”); PROVIDED, HOWEVER, THAT A FAX DRAWING
WILL NOT BE EFFECTIVELY PRESENTED UNTIL YOU CONFIRM BY TELEPHONE OUR RECEIPT OF SUCH FAX DRAWING BY CALLING US AT TELEPHONE NUMBER [●] OR YOU CONFIRM BY EMAIL AT: [●]. IF YOU PRESENT A FAX DRAWING UNDER THIS
LETTER OF CREDIT YOU DO NOT NEED TO PRESENT THE ORIGINAL OF ANY
DRAWING DOCUMENTS, AND IF WE RECEIVE ANY SUCH ORIGINAL DRAWING DOCUMENTS THEY WILL NOT BE EXAMINED BY US. IN THE EVENT OF A FULL AND
FINAL DRAWING THE ORIGINAL STANDBY LETTER OF CREDIT MUST BE RETURNED TO US BY OVERNIGHT COURIER.
ALL PAYMENTS MADE UNDER THIS LETTER OF CREDIT SHALL BE MADE WITH ISSUER’S OWN IMMEDIATELY AVAILABLE FUNDS BY MEANS OF WIRE TRANSFER IN IMMEDIATELY AVAILABLE UNITED STATES DOLLARS TO BENEFICIARY’S
ACCOUNT AS INDICATED BY BENEFICIARY IN ITS DRAWING CERTIFICATE OR IN A COMMUNICATION ACCOMPANYING ITS DRAWING CERTIFICATE.
WE HEREBY AGREE THAT THE DRAWING DOCUMENTS DRAWN UNDER AND IN
COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY
HONORED BY US UPON DELIVERY OF THE ABOVE SPECIFIED DRAWING
CERTIFICATE, IF PRESENTED ON OR BEFORE THE EXPIRATION DATE AS SPECIFIED HEREIN.
AS STIPULATED HEREIN, “BUSINESS DAY” SHALL MEAN ANY DAY OTHER THAN A
SATURDAY, SUNDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN THE STATE
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OF ________ ARE AUTHORIZED OR REQUIRED BY LAW TO CLOSE. IF ANY DRAWING
OR THE DOCUMENTATION PRESENTED IN CONNECTION THEREWITH, DOES NOT
CONFORM TO THE TERMS AND CONDITIONS HEREOF, WE WILL ADVISE YOU OF THE SAME BY TELEPHONE OR FACSIMILE AND GIVE THE REASONS FOR SUCH NON-CONFORMANCE.
THIS LETTER OF CREDIT IS ISSUED SUBJECT TO THE RULES OF THE ‘INTERNATIONAL STANDBY PRACTICES 1998’, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590 (‘ISP98’) AND AS TO MATTERS NOT ADDRESSED BY ISP98 SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF STATE OF NEW YORK.
NOTWITHSTANDING ANY REFERENCE IN THIS LETTER OF CREDIT TO ANY OTHER
DOCUMENTS, INSTRUMENTS OR AGREEMENTS (OTHER THAN AS SET FORTH IN
THE IMMEDIATELY PRIOR PARAGRAPH), THIS LETTER OF CREDIT CONTAINS THE
ENTIRE AGREEMENT BETWEEN BENEFICIARY AND ISSUER RELATING TO THE OBLIGATIONS OF ISSUER HEREUNDER.
OTHER THAN AS PROVIDED HEREIN, COMMUNICATIONS WITH RESPECT TO THIS
LETTER OF CREDIT SHALL BE IN WRITING, SHALL SPECIFICALLY REFER TO BENEFICIARY AND TO OUR LETTER OF CREDIT NO. [●], AND SHALL BE ADDRESSED TO: [●] [ISSUING BANK’S NAME AND ADDRESS]
ALL NOTICES TO BENEFICIARY SHALL BE IN WRITING AND ARE REQUIRED TO BE SENT BY CERTIFIED LETTER, OVERNIGHT COURIER OR DELIVERED IN PERSON TO:
[BENEFICIARY], ATTN: [BENEFICIARY ADDRESS]. 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.
ALL COSTS RELATED TO THIS LETTER OF CREDIT SHALL BE PAID BY THE APPLICANT.
ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. AND
CANADIAN GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, TERRITORIES, INDIVIDUALS, ENTITIES, AND VESSELS. ISSUER
ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES,
SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS.
THIS LETTER OF CREDIT MAY BE SIGNED BY THE ISSUING BANK WITH EITHER A
DIGITAL OR ORIGINAL SIGNATURE, EITHER OF WHICH SHALL BE LEGALLY VALID AND ENFORCEABLE. THE ISSUING BANK MAY TRANSMIT THIS LETTER OF CREDIT TO THE BENEFICIARY BY MAIL, FAX OR ELECTRONIC TRANSMISSION. FOR THE
AVOIDANCE OF DOUBT, ANY ELECTRONIC PDF VERSION OF THIS LETTER OF
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CREDIT RECEIVED BY THE BENEFICIARY SHALL BE AN OPERATIVE INSTRUMENT AND MAY BE USED BY THE BENEFICIARY AS IT WOULD A HARDCOPY ORIGINAL.
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EXHIBIT “A”
DRAWING CERTIFICATE
TO: [ISSUING BANK]
[ADDRESS]
RE: IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER [●] ISSUED BY [ISSUING BANK] TO [BENEFICIARY] (“LETTER OF CREDIT”); CAPITALIZED TERMS USED BUT
NOT DEFINED IN THIS DRAWING CERTIFICATE HAVE THE MEANINGS ASCRIBED
TO THEM IN THE LETTER OF CREDIT)
THIS IS A DRAWING CERTIFICATE UNDER THE ABOVE-MENTIONED LETTER OF CREDIT.
I, , AN AUTHORIZED REPRESENTATIVE OF [BENEFICIARY], DO HEREBY CERTIFY THAT:
APPLICANT AND BENEFICIARY ARE PARTY TO THAT CERTAIN RENEWABLE POWER PURCHASE AGREEMENT DATED AS OF ___________, 2023 (THE “AGREEMENT”).
THE DRAWING UNDER THIS LETTER OF CREDIT IS IN AN AMOUNT DETERMINED
ON A PROPORTIONATE BASIS WITH RESPECT TO EACH OTHER OUTSTANDING
LETTER OF CREDIT (OR OTHER FORM OF CREDIT SUPPORT) PROVIDED BY OR ON
BEHALF OF THE APPLICANT TO BENEFICIARY IN SUPPORT OF THE AGREEMENT AS [DEVELOPMENT SECURITY] [PERFORMANCE SECURITY] [SECURITY FOR
PAYMENT OF DAILY DELAY DAMAGES IN ACCORDANCE WITH EXHIBIT B OF THE AGREEMENT] [SECURITY FOR PAYMENT OF COMMERCIAL OPERATION DELAY DAMAGES IN ACCORDANCE WITH EXHIBIT B OF THE AGREEMENT], AND DOES
NOT EXCEED A PRO RATA AMOUNT WITH RESPECT TO A CONCURRENT DRAWING
UNDER EACH SUCH OTHER OUTSTANDING LETTER OF CREDIT (OR OTHER FORM OF CREDIT SUPPORT).
[CHOOSE ONLY ONE OF THE FOLLOWING]
(1) BENEFICIARY IS MAKING A DRAWING UNDER THIS LETTER OF CREDIT IN THE AMOUNT OF U.S. $___________ BECAUSE [AN EVENT OF
DEFAULT (AS SUCH TERM IS DEFINED IN THE AGREEMENT) WITH
RESPECT TO SELLER HAS OCCURRED OR OTHER OCCASION
PROVIDED FOR IN THE AGREEMENT WHERE BENEFICIARY IS
AUTHORIZED TO DRAW ON THE LETTER OF CREDIT HAS OCCURRED] [OR] [A DAILY DELAY DAMAGES PAYMENT IS DUE UNDER THE
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AGREEMENT] [OR] [A COMMERCIAL OPERATION DELAY DAMAGES
PAYMENT IS DUE UNDER THE AGREEMENT].
(2) 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.
IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT, CLEAN POWER
ALLIANCE OF SOUTHERN CALIFORNIA, A CALIFORNIA JOINT POWERS AUTHORITY IS ENTITLED TO AND HEREBY DEMANDS PAYMENT OF USD _________, SUCH AMOUNT TO BE PAID TO [BENEFICIARY] BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO: (INSERT WIRE INSTRUCTIONS),WHICH, CLEAN POWER
ALLIANCE OF SOUTHERN CALIFORNIA CERTIFIES IT IS ENTITLED TO UNDER THE AGREEMENT.
COMMUNICATIONS TO ME CONCERNING THIS DRAWING CERTIFICATE MAY BE MADE AT FOLLOWING TELEPHONE AND FACSIMILE NUMBERS: ____________; _________________.
IN WITNESS WHEREOF, [BENEFICIARY] THROUGH ITS AUTHORIZED
REPRESENTATIVE HAS EXECUTED AND DELIVERED THIS DRAWING CERTIFICATE THIS DAY OF , 20 _.
[____]
BY:
NAME:
TITLE:
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EXHIBIT L
FORM OF LIMITED ASSIGNMENT AGREEMENT
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FORM OF ASSIGNMENT SCHEDULE
[SELLER ENTITY]
Assigned Product: Energy and Green Attributes (PCC1)
Assigned Delivery Point: [__]
Assigned Prepay Quantity: As set forth in Appendix 2; provided that (i) all Assigned Products shall be delivered pursuant to the Limited Assignment Agreement during the Assignment Period as provided in Appendix 1 and (ii) the Assigned Prepay Quantity is defined for the convenience of PPA Buyer and [Financing Party] and shall have no impact on the obligations of the Parties under the Limited Assignment Agreement.
APC Contract Price: $[__]/MWh
Assignment Period: [__]
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ANNEX I – FORM OF LIMITED ASSIGNMENT AGREEMENT
This Limited Assignment Agreement (this “Assignment Agreement” or “Agreement”) is entered into as of [______________] by and among [PPA Seller], a [______________] (“PPA Seller”), Clean Power Alliance, a California joint powers authority (“PPA Buyer”), and [Financing Party], a [______________] (“Financing Party”), and relates to that certain power purchase agreement (the “PPA”) between PPA Buyer and PPA Seller as defined in Appendix 1 hereto. Unless the context otherwise specifies or requires, capitalized terms used but not defined in this Agreement have the meanings set forth in the PPA.
In consideration of the premises above and the mutual covenants and agreements herein set forth, PPA Seller, PPA Buyer and Financing Party (the “Parties” hereto; each is a “Party”) agree as follows:
1. Limited Assignment and Delegation.
(a) PPA Buyer hereby assigns, transfers, and conveys to Financing Party all right, title and interest in and to the rights of PPA Buyer under the PPA to receive delivery of, or have made available to it, the products described in Appendix 1 (collectively, the “Assigned Product”) during the Assignment Period (as defined in Appendix 1), as such rights may be limited or further described in the “Further Information” section on Appendix 1 (the “Assigned Product Rights”). All Assigned Product shall be delivered pursuant to the terms and conditions of this Agreement during the Assignment Period as provided in Appendix 1. All other rights of PPA Buyer under the PPA are expressly reserved for PPA Buyer. The Parties agree that the assignment, transfer and/or conveyance of all or any portion of the Assigned Products in accordance with this Agreement and the Parties’ performance of any obligation in accordance with this Agreement shall not constitute a failure to meet the requirements of the PPA, or a breach of any covenant, representation or warranty under the PPA (and in no event shall Seller be responsible for any failure of any portion of the Assigned Products to satisfy the requirements of the PPA, to the extent such failure results from the assignment, transfer and/or conveyance of such Assigned Products in accordance with this Agreement). (b) PPA Buyer hereby delegates to Financing Party the obligation to pay for all Assigned Product that is actually delivered to Financing Party pursuant to the Assigned Product Rights during the Assignment Period (the “Delivered Product Payment Obligation” and together with the Assigned Product Rights, collectively the “Assigned Rights and Obligations”); provided that (i) all other obligations of PPA Buyer under the PPA are expressly retained by PPA Buyer and PPA Buyer shall be solely responsible for any amounts due to PPA Seller that are not directly related to Assigned Product; and (ii) the Parties acknowledge and agree that PPA Seller will only be obligated to deliver a single consolidated invoice during the Assignment Period (with a copy to Financing Party consistent with Section 1(d) hereof). To the extent Financing Party fails to pay the Delivered Product Payment Obligation by the due date for payment set forth in the PPA, notwithstanding anything in this Agreement to the contrary, PPA Buyer agrees that it shall remain responsible for payment of such Delivered Product Payment Obligation and that PPA Seller may declare an Event of Default pursuant to Section 11.1(a)(i) of the PPA if Buyer does not make such payment within five (5) Business Days of receiving Notice of such non-payment from PPA Seller, and that PPA Buyer shall remain liable for any and all damages, costs and expenses of Seller associated with Financing Party’s failure to take or pay for any such Product as contemplated by this Agreement. The Parties acknowledge and agree that (i) the Assigned Rights and Obligations include only a portion of PPA Buyer’s rights and obligations under the PPA, and that all rights and obligations arising under the PPA that are not expressly included in the Assigned Rights and Obligations
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shall be “Retained Rights and Obligations” that are retained solely by PPA Buyer, and (ii) the Retained Rights and Obligations include all rights and obligations of PPA Buyer arising during the Assignment Period except the rights and obligations expressly included in the Assigned Rights and Obligations. Any claims arising or existing in connection with or related to the PPA, whether related to performance by PPA Seller, PPA Buyer or Financing Party, and whether arising before, during or after the Assignment Period, in each case excluding the Delivered Product Payment Obligation (provided, however, PPA Buyer still remains liable that all amounts due and owing under the PPA are timely paid), will be included in the Retained Rights and Obligations, and any such claim will be resolved exclusively between PPA Seller and PPA Buyer in accordance with the PPA.
(c) Financing Party hereby accepts and PPA Seller hereby consents and agrees to the assignment, transfer, conveyance, and delegation described in clauses (a) and (b) above. (d) All scheduling of Assigned Product and other communications related to the PPA shall take place pursuant to the terms of the PPA; provided that during the Assignment Period (i) title to Assigned Product will pass from PPA Seller to Financing Party upon delivery or making available by PPA Seller of Assigned Product in accordance with the PPA; (ii) PPA Buyer will provide copies to Financing Party of any Notice of a Force Majeure Event or Event of Default or default, breach or other occurrence that, if not cured within the applicable grace period, could result in an Event of Default contemporaneously upon delivery thereof to PPA Seller and promptly after receipt thereof from PPA Seller; (iii) PPA Seller will provide copies to Financing Party of annual forecasts of Energy and monthly forecasts of available capacity and Energy provided pursuant to Section 4.3 of the PPA; (iv) PPA Seller will provide copies to Financing Party of all invoices and supporting data provided to PPA Buyer pursuant to Section 8.1, provided that any payment adjustments or subsequent reconciliations occurring after the date that is ten (10) days prior to the payment due date for a monthly invoice, including pursuant to Section 8.4, will be resolved solely between PPA Buyer and PPA Seller and therefore PPA Seller will not be obligated to deliver copies of any communications relating thereto to Financing Party; and (v) PPA Buyer and PPA Seller, as applicable, will provide copies to Financing Party of any other information reasonably requested by Financing Party relating to Assigned Product.
(e) PPA Seller acknowledges that (i) Financing Party intends to immediately transfer title to any Assigned Product received from PPA Seller through one or more intermediaries such that all Assigned Product will be re-delivered to PPA Buyer; and (ii) in the event that PPA Buyer fails to pay the relevant intermediary entity for any such Assigned Products, the receivables owed by PPA Buyer for such Assigned Products (“PPA Buyer Receivables”) may be transferred to Financing Party. To the extent any such PPA Buyer Receivables are transferred to Financing Party, and PPA Buyer acknowledges in writing that such receivables are due and payable and waives any and all defences and counterclaims associated with such receivables for the undisputed amounts owed pursuant to the PPA, Financing Party may transfer such PPA Buyer Receivables to PPA Seller and apply the face amount thereof as a reduction to any Delivered Product Payment Obligation. Thereafter, PPA Seller shall be entitled to pursue collection on such PPA Buyer Receivables directly against PPA Buyer. Nothing in this Section 1(e) shall modify PPA Seller’s right to declare an Event of Default pursuant to Section 11.1(a)(i) of the PPA in the event that any portion of the Delivered Product Payment Obligation remains unpaid by the due date for payment set forth in the PPA, and such amount is not paid by Financing Party or PPA Buyer within five (5) Business Days of PPA Buyer receiving Notice of such non-payment from PPA Seller as provided in Section 1(b), above.
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(f) On or before the commencement of the Assignment Period, [_____] (“Guarantor”) will issue, in favor of PPA Seller, a guaranty of Financing Party’s payment obligations under this Assignment Agreement substantially in the form of Appendix 3 attached hereto (“Guaranty”). PPA Seller may draw upon, apply, or make demand under the Guaranty to recover any unpaid amounts due from Financing Party and not timely paid as set forth herein; provided, however, that PPA Seller’s rights under the Guaranty and this subsection (f) shall not reduce or affect PPA Buyer’s obligation to render payments when due under the PPA or extend any deadlines in the PPA.
(g) All payments due to PPA Seller in respect of Sections 3.3 of the PPA will be paid (subject to Section 1(e), above) by Financing Party into the custodial account listed in Appendix 1, and all payments due to PPA Buyer in respect of Section 3.3 of the PPA will be paid by PPA Seller into the custodial account listed in Appendix 1, which custodial account is established under that certain Custodial Agreement of even date herewith that Financing Party, PPA Buyer and [Custodian] have entered into for the administration of payments due hereunder.
(h) The Assigned Prepay Quantity set forth in Appendix 2 relates to obligations by and between Financing Party and PPA Buyer and has no impact on PPA Seller’s rights and obligations under the PPA.
(i) Except as expressly set forth in Section 1(a) of this Assignment Agreement with respect to the product delivery obligations, nothing in this Agreement modifies or amends any rights or obligations of PPA Buyer and PPA Seller under the PPA.
2. Assignment Early Termination.
(a) The Assignment Period may be terminated early upon the occurrence of any of the following:
(1) delivery of a written notice of termination specifying a termination date by either Financing Party or PPA Buyer to each of the other Parties; (2) delivery of a written notice of termination specifying a termination date by PPA Seller to each of Financing Party and PPA Buyer following Financing Party’s failure to pay when due any amounts owed to PPA Seller in respect of any Delivered Product Payment Obligation and such payment is not made by Financing Party within five (5) Business Days following receipt by Financing Party and PPA Buyer of written notice;
(3) delivery of a written notice by PPA Seller if any of the events described in the definition of Bankrupt in the PPA occurs with respect to Financing Party; (4) delivery of a written notice by Financing Party if any of the events described in the definition of Bankrupt in the PPA occurs with respect to PPA Seller; or
(5) failure of the Guaranty provided by the Guarantor to PPA Seller hereunder to be in full force and effect (other than in accordance with its terms) prior to the indefeasible satisfaction of all obligations of Financing Party hereunder or if the Guarantor provides notice of termination of the Guaranty or otherwise repudiates,
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disaffirms, disclaims, or rejects, in whole or in part, or challenges the validity of the Guaranty.
(b) The Assignment Period will end at the end of last delivery hour on the date specified in the termination notice provided pursuant to Section 2(a), above, which date shall not be earlier than the end of the last day of the calendar month in which such notice is delivered if termination is pursuant to clause (1) or (2) of Section 2(a), above. All Assigned Rights and Obligations shall revert from Financing Party to PPA Buyer upon the expiration or early termination of the Assignment Period, provided that (i) Financing Party shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Product delivered or made available to Financing Party prior to the end of the Assignment Period, and (ii) any legal restrictions on the effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the expiration or early termination of the Assignment Period.
(c) The Assignment Period will automatically terminate upon the expiration or early termination of the PPA. All Assigned Rights and Obligations shall revert from Financing Party to PPA Buyer upon the expiration of or early termination of the PPA, provided that (i) Financing Party shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Product delivered to Financing Party prior to the end of the Assignment Period, and (ii) any legal restrictions on the effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the expiration or early termination of the Assignment Period.
3. Representations and Warranties. The PPA Seller and the PPA Buyer represent and warrant to Financing Party that (a) the PPA is in full force and effect; and (b) no event or circumstance exists (or would exist with the passage of time or the giving of notice) that would give either of them the right to terminate the PPA or suspend performance thereunder.
4. Notices. Any notice, demand, or request required or authorized by this Assignment Agreement to be given by one Party to another Party shall be delivered in accordance with Article 9 of the PPA and to the addresses of each of PPA Seller and PPA Buyer specified in the PPA. PPA Buyer agrees to notify Financing Party of any updates to such notice information, including any updates provided by PPA Seller to PPA Buyer. Notices to Financing Party shall be provided to the following address, as such address may be updated by Financing Party from time to time by notice to the other Parties:
Financing Party
_____________
_____________
Email: _____________
5. Miscellaneous. Section 13.2 (Buyer’s Representations and Warranties), Article 18 (Confidential Information), Sections 19.5 (Severability), 19.7 (Counterparts), 19.2 (Amendments), 19.4 (No Agency, Partnership, Joint Venture or Lease), 19.6 (Mobile-Sierra),
19.8 (Electronic Delivery), 19.9 (Binding Effect) and 19.10 (No Recourse to Members of Buyer) of the PPA are incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein.
6. U.S. Resolution Stay Provisions. The Parties agree that the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate
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Groups)”, published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at www.isda.org), the effect of which is to amend the qualified financial contracts between the Parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this Agreement, and for such purposes this Agreement shall be deemed a “Covered Agreement”, Financing Party shall be deemed a “Covered Entity” and the Counterparty shall be deemed a “Counterparty Entity”.
In the event that, after the date of this Agreement, all Parties hereto become adhering Parties to the 2018 ISDA U.S. Resolution Say Protocol (the “Protocol”), the terms of the Protocol will replace the terms of this section. In the event of any inconsistencies between this Agreement and the terms of the Protocol or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph, references to "this Agreement" include any related credit enhancements entered into between the Parties, directly or indirectly through an agent, or provided by one to the other. “QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.
7. Governing Law, Jurisdiction, Waiver of Jury Trial.
(a) Governing Law. This Assignment Agreement and the rights and duties of the Parties under this Assignment Agreement will be governed by and construed, enforced and performed in accordance with the laws of the State of California, without reference to any conflicts of law provisions that would direct the application of another jurisdiction’s laws; provided, however, that the authority of PPA Buyer to enter into and perform its obligations under this Assignment Agreement shall be determined in accordance with the laws of the State of California.
(b) Jurisdiction. Each Party submits to the exclusive jurisdiction of the federal courts of the United States of America for the Southern District of California sitting in the city and county of Los Angeles.
(c) Waiver of Right to Trial by Jury. Each Party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this Assignment Agreement.
(d) Waivers by PPA Buyer. In the event that any of California Civil Code Sections 2815, 2787 to 2855 (inclusive), 2899, or 3433, or any common law principles or holdings regarding suretyship, may apply with respect to PPA Buyer’s obligations hereunder, PPA Buyer hereby waives for the benefit of PPA Seller any and all surety defenses to the fullest extent permitted under applicable law, including all rights and defenses that are or may become available to PPA Buyer by reason of California Civil Code Sections 2787 to 2855, inclusive, 2899 and/or 3433, and any right to revoke this Assignment Agreement, including any such right arising under California Civil Code § 2815; provided, nothing in this Section 7(d) shall be deemed to be of waiver of, and PPA Buyer retains in full, any and all rights and defenses PPA Buyer has under the PPA, including at law and in equity.
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(e) Forward Contract. The Parties acknowledge and agree that the delivery of the Assigned Products to Financing Party contemplated hereby is intended to constitute a “forward contract” and that the Parties are intended to constitute “forward contract merchants” within the meaning of the United States Bankruptcy Code.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the Parties have executed this Assignment Agreement effective as of the date first set forth above.
[PPA SELLER]
By:
Name:
Title:
CLEAN POWER ALLIANCE
By:
Name:
Title:
[FINANCING PARTY]
By:
Name:
Title:
Execution and delivery of the foregoing Assignment Agreement is hereby approved.
CALIFORNIA COMMUNITY CHOICE FINANCING AUTHORITY
By:
Name:
Title:
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Appendix 1
Assigned Rights and Obligations
PPA: “PPA” means that certain Amended and Restated Renewable Power Purchase Agreement dated [____], by and between Clean Power Alliance and [____], a [____] limited liability company, as amended from time to time.
“Assignment Period” means the period beginning on [___________] and extending until [___________], provided that in no event shall the Assignment Period extend past the earlier of (i) the termination of the Assignment Period pursuant to Section 2 of the Assignment Agreement and (ii) the end of the Delivery Term under the PPA; provided that applicable provisions of this Agreement shall continue in effect after termination of the Assignment Period to the extent necessary to enforce or complete, duties, obligations or responsibilities of the Parties arising prior to the termination.
Assigned Product: “Assigned Product” includes (i) Energy and (ii) Green Attributes (including PCC1 RECs); provided, however, that the following are expressly excluded from the Assigned Product and any and all rights and obligations with respect to the following shall remain with Buyer: Ancillary Services; Capacity Attributes; Resource Adequacy Benefits.
Further Information: PPA Seller shall continue to transfer the WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy under the PPA pursuant to Section 4.7 of the PPA, provided that the transferee of such WREGIS Certificates may be changed from time to time in accordance with the written instructions of both Financing Party and Clean Power Alliance upon twenty (20) Business Days’ notice, which change shall be effective as of the first day of the next calendar month, unless otherwise agreed. All Assigned Product delivered by PPA Seller to Financing Party shall be a sale made at wholesale, with Financing Party reselling all such Assigned Product.
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Appendix 2
Assigned Prepay Quantity
[NOTE: To be set forth in a monthly volume schedule.]
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Appendix 3
Form of Financing Party Parent Guaranty
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EXHIBIT M
FORM OF GUARANTY
This Guaranty (this “Guaranty”) is entered into as of [_____] (the “Effective Date”) by and between [_____], a [______] (“Guarantor”), and [____] (together with its successors and permitted assigns, “Buyer”).
Recitals
A. Buyer and _____________________, a _____________________ (“Seller”), entered into that certain Amended and Restated Renewable Power Purchase Agreement (as amended, restated or otherwise modified from time to time, the “PPA”) dated as of [____], 20___.
B. Guarantor is entering into this Guaranty as Performance Security to secure Seller’s obligations under the PPA, as required by Section 8.8 of the PPA.
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 PPA.
D. Initially capitalized terms used but not defined herein have the meaning set forth in the PPA.
Agreement
1. Guaranty. For value received, Guarantor does hereby unconditionally, absolutely and irrevocably guarantee, as primary obligor and not as a surety, to Buyer the full, complete and prompt payment by Seller of any and all amounts and payment obligations now or hereafter owing from Seller to Buyer under the PPA, including, without limitation, compensation for penalties, the Termination Payment, indemnification payments or other damages, as and when required pursuant to the terms of the PPA (the “Guaranteed Amount”), provided, that Guarantor’s aggregate liability under or arising out of this Guaranty shall not exceed the sum of ________ Dollars ($___________) plus reasonable costs incurred by Buyer in enforcing this Guaranty, if successful, up to Two-Hundred Thousand Dollars ($200,000) for an aggregate maximum liability of ________ Dollars ($___________) (the “Guarantee Limit”). The Parties understand and agree that any payment by Guarantor shall thereafter reduce the Guarantee Limit hereunder on a dollar-for-dollar basis. This Guaranty is an irrevocable, absolute, unconditional and continuing guarantee of the full and punctual payment and performance, 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 PPA, Guarantor shall promptly pay such amount as required herein.
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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 PPA 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 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), or (y) replacement Performance Security is provided in an amount and form required by the terms of the PPA. 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 PPA, or (iii) any indemnity agreement Seller may have from any Person, 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 PPA 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
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(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 PPA or perform its obligations thereunder, (B) lack of due execution, delivery, validity or enforceability, including of the PPA, or (C) Seller’s inability to pay any Guaranteed Amount or perform its obligations under the PPA, 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 may be asserted by Seller with respect to the PPA, but that are expressly waived under any provision of this Guaranty).
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 PPA, 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 PPA; (iii) (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.
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6. Representations and Warranties. Guarantor hereby represents and warrants that (a) it has all necessary and appropriate 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, (d) 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 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. If transmitted by facsimile, such notice shall be deemed received when the confirmation of transmission thereof is received by the party giving the notice. Any party may change its address or facsimile 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: [____]
Fax: [____]
If delivered to Guarantor, to it at [____]
Attn: [____]
Fax: [____]
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 California, excluding choice of law rules. 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 sitting in the County of San Francisco, 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 PPA. 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
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written consent of Buyer. 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 (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 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 (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
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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.
(iv) THE PARTIES AGREE THAT THE COSTS OF THE REFEREE SHALL BE SHARED EQUALLY BY THE PARTIES.
(v) THE PARTIES AGREE THAT EACH PARTY SHALL BE RESPONSIBLE FOR
ITS OWN COSTS AND EXPENSES, INCLUDING LEGAL FEES, IN
CONNECTION WITH ANY GENERAL REFERENCE PROCEEDING.
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:
[_______]
By:
Printed Name:
Title:
BUYER:
[_______]
By:
Printed Name:
Title:
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By:
Printed Name:
Title:
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EXHIBIT N
NOTICES
SUNZIA WIND POWERCO LLC
(“Seller”)
CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA, a California joint powers
authority (“Buyer”)
All Notices:
Street: 1088 Sansome St.
City: San Francisco, CA
Attn: General Counsel
Phone:
Email:
All Notices:
Street: 801 S Grand, Suite 400
City: Los Angeles CA, 90017
Attn: Chief Executive Officer
Phone: (213) 269-5870
Email: [email protected]
Reference Numbers:
Duns:
Federal Tax ID Number:
Reference Numbers:
Duns:
Federal Tax ID Number:
Invoices:
Attn: Pattern Energy Settlements
Phone:
Email:
Invoices:
Attn: Vice President, Power Supply
Phone: (213) 280-4011
E-mail: [email protected]
Scheduling:
Attn: Manager 24/7 Operations Control Center
Email:
Phone:
Facsimile:
Scheduling:
Attn: Operations 24/7 Desk
Phone: (817) 462-1509
Email: [email protected]
Confirmations:
Attn: Pattern Energy Settlements
Phone:
Email:
Confirmations:
Attn: Vice President, Power Supply
Phone: (213) 280-4011
Email: [email protected]
Email CC:
[email protected]
Payments:
Attn: Pattern Energy Settlements
Phone:
Email:
Payments:
Attn: Vice President, Power Supply
Phone: (213) 280-4011
E-mail: [email protected]
Wire Transfer:
BNK:
ABA:
Wire Transfer:
BNK: River City Bank
ABA:
ACCT: XXXXXX7557
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SUNZIA WIND POWERCO LLC
(“Seller”)
CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA, a California joint powers
authority (“Buyer”)
ACCT:
ACCT NAME:
Emergency Contact:
Attn: 24/7 Operations Control Center
Phone:
Email:
Emergency Contact:
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EXHIBIT O
RESERVED
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EXHIBIT P
CPM Adjustment Factors
Month Multiplier
January
February
March
April
May
June
July
August
September
October
November
December
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EXHIBIT Q
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 for Seller’s supply chain are detailed below in our Supply Chain Code of Conduct (“Supply Chain Code”). Seller must comply with all applicable Laws and this Supply Chain Code (subject to Section 2.3(b) of this Agreement), even when this Supply Chain Code exceeds the requirements of applicable Law.
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, 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 the facility in addition to unreasonable restrictions on entering or exiting company provided 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. 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 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 shall provide appropriate support and training to all student
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workers. In the absence of local law, the wage rate for 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, suppliers shall use commercially reasonable efforts to limit a workweek to not more than 60 hours per week, including overtime. 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
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without fear of discrimination, reprisal, intimidation, or harassment.
8. Restricted Jurisdictions
Supplier shall not manufacture or produce products in the Xinjiang Uyghur Autonomous Region of China, or knowingly procure goods and services mined, produced or manufactured in the same.
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EXHIBIT R
METERING DIAGRAM
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EXHIBIT S
MATERIAL PERMITS
No. Permits
SunZia Wind North Material Permits
1. N/A
SunZia Wind South Material Permits
1. Bureau of Land Management - Mining Plan - Rio Puerco Field Office
2. Bureau of Land Management - Mining Plan - Roswell Field Office
3. Federal Aviation Administration Act - Determinations of No Hazard
4. First Amendment to Torrance County – Road Use Agreement
5. First Amendment to Lincoln County – Road Use Agreement, SunZia South
6. First Amendment to Lincoln County – Road Use Agreement
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EXHIBIT T
Force Majeure Event and/or Development Cure Period Claim Form Instructions
A. Please review Article 10 and Exhibit B (if applicable) of the Amended and Restated Renewable 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]
Seller hereby certifies and represents to Buyer the following:
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, if known.
2. Please specify the extent of the delay or prevented performance, if known, 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, if any, to prevent such event or, if applicable, explain in reasonable detail why it was not possible to take such efforts.
4. Please describe the commercially reasonable efforts taken to mitigate the delays or
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nonperformance caused by the Claimed Event, if any, or, if applicable, explain in reasonable detail why it was not possible to take such efforts, and specify if such efforts, if any, reduced the delay days or nonperformance that would otherwise have occurred absent such mitigation.
5. Please attach supporting documentation, including (to the extent applicable and available):
• 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.
[SELLER NAME]
By:
Name:
Title:
Date:
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EXHIBIT U
OPERATING RESTRICTIONS
Operating Restrictions of the Facility are as follows:
• Interconnection Capacity (Maximum Injection Amount): 3,000 MW • Minimum operating capacity: 0.0 MW
• Maximum number of start-ups per calendar day (if any such operational limitations exist): N/A
• Ramp Rate: The ramp rate accepted by CAISO in the Master File of the Facility. • Minimum Down Time: N/A
Agenda Page 163
Staff Report – Agenda Item 5
To: Board of Directors
From: Christian Cruz, Senior Community Outreach Manager Approved by: Ted Bardacke, Chief Executive Officer
Subject: Community Advisory Committee (CAC) Report
Date: October 10, 2024
RECOMMENDATION
Receive and file.
MEETING REPORT
Managed Charging Program Update and PRIME-SOP Pilot Proposal In September, the Community Advisory Committee (CAC) received a presentation on CPA’s Managed Charging Program. The program will incentivize customers to shift their EV charging to off-peak times, leveraging vehicle telematics or EV supply equipment (EVSE). Program metrics include:
• Enroll 6,600 EV drivers within CPA territory
• Provide 2.8 MW of managed load annually
• Maintain 90%+ customer satisfaction with the program
The program will provide incentives to encourage customer enrollment and continued participation above and beyond any customer bill savings.
In conjunction with the Managed Charging presentation, the CAC also was asked to provide feedback on the possibility of CPA implementing a PRIME-SOP Pilot default program. In June, the CPA Board approved a new residential TOU-D-PRIME-SOP (Super Off-Peak) rate option with a lower daytime (8am-4pm) rate and higher overnight (9pm-8am) rate to encourage customers to charge EVs during the day when electricity is cheapest and cleanest. CPA will promote the new rate option to EV customers starting in
Agenda Page 164
Board of Directors Item 5
Q1 of 2025, concurrent with promoting CPA’s new managed charging program, as a way for customers to further reduce their EV charging costs.
CPA staff is also considering proposing to the Board a 2-year pilot program to default approximately 5% (2,600) of its current TOU-D-PRIME customers onto the new SOP rate.
Feedback from the CAC, particularly in the area of marketing and outreach, would be incorporated into this proposal, should it come to fruition.
Power Share Program Update
In September, the CAC also received an update on CPA’s Power Share Program. The update highlighted the recent CPUC decision (D.24-05-065) requiring a series of administrative and policy changes. In recognition of CPA’s Power Share success, the Decision authorized the expansion of CPA’s clean energy capacity from 6.1 MW to 18.3 MW. This will allow Power Share to serve over 10,000 customers, up from the current enrollment cap of approximately 6,500 customers. Staff noted for the CAC that CPA will begin auto-enrolling customers in January 2025 to take advantage of additional program capacity.
ATTACHMENT
1. CAC Meeting Attendance
Agenda Page 165
Board of Directors Item 5
Community Advisory Committee Attendance
2024
Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov
East Ventura/West LA County
Angus Simmons ✓ ✓ A ✓ ✓ ✓ ✓
Vacant X ✓ ✓
Debbie West A ✓ A ✓ ✓ ✓ ✓
San Gabriel Valley
Richard Tom ✓ A A A A A A
Vacant
West/Unincorporated Ventura County
Kent Bullard ✓ ✓ ✓ ✓
Daniel Mora ✓ ✓ ✓ A ✓ ✓
South Bay
Cort Casady ✓ ✓ ✓ ✓ A ✓ ✓
Diane Wallace ✓ ✓ ✓ ✓ ✓ ✓ ✓
Gateway Cities
Vacant A ✓ ✓
Genaro Bugarin ✓ A ✓ ✓ ✓ ✓ A
Westside
Cris Gutierrez ✓ A ✓ ✓ ✓ ✓ A
David Haake A ✓ ✓ ✓ ✓ ✓ ✓
Unincorporated LA County
Neil Fromer ✓ ✓ A ✓ ✓ ✓ ✓
Vacant
✓ - Attended A – Absent X – Medical/Personal Leave
Action Items and Presentations
January
Legislative Update/2024 Policy Platform
July
Programs Metrics
Energy Model
February
Renewable Energy (RE) Supply and CPA
Product Content
August
DARK
March
Sun Storage Rebate Program Rates
Outlook 2024/2025
September
Managed Charging/PRIME-SOP
Power Share Updated
April
Cancelled
May
FY 2024/25 Budget FY 2024/25 Rates
June
Energy Advisor Program
Managed Charging Program
Agenda Page 166
Staff Report – Agenda Item 6
To: Board of Directors
From: Gina Goodhill, Senior Director, Government Affairs Approved By: Ted Bardacke, Chief Executive Officer
Subject: Receive and File October 2024 Bill Positions Report Date: October 10, 2024
RECOMMENDATION
Receive and file.1
ATTACHMENT
None.
1 No new Bill positions were taken or established during the month of September. This month’s report includes signing and/or veto actions taken by the Governor and will be the last report until the next legislative session opens in 2025.
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Board of Directors Item 6
Bill Number &
Author
Title & Summary Status CPA Position Alignment with
CPA Policy
Platform
Notes
SB 59
Senator Nancy Skinner
Battery electric vehicles:
bidirectional capability
Would allow the California Air
Resources Board (CARB),
the California Energy
Commission (CEC) and the
CPUC to require any class of
electric vehicles (EV) to be
bidirectionally capable if the
capability would be
compellingly beneficial to the
EV operator and the electric
grid.
Chaptered by
Secretary of State.
Chapter 765,
Statutes of 2024
9/27/24
Support 2f, 3a, 3b CPA is actively
researching vehicle-to-grid integration
(VGI) and the
potential benefits and
opportunities for
CPA. Bidirectional
EV batteries are a
critical part of VGI.
AB 2083
Assemblymember Marc
Berman
Industrial Heat
Electrification Roadmap
Would require the CEC to
assess the potential for
achieving an 85 percent
reduction below 1990 levels
in emissions from industrial
heat application processes
by January 1, 2045, and
require the CEC to evaluate
opportunities to increase
Held in Senate
Appropriations
Committee
8/15/24
Support 2f Industrial emissions
make up 23 percent
of GHG emissions in
California, and
decarbonizing this
sector will be crucial
to meeting the
State’s 2045 GHG
emission goals.
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Board of Directors Item 6
electrification of industrial
heat processes.
SB 1221
Senator Dave Min
Gas corporations: priority
neighborhood
decarbonization zones
Would create a
Neighborhood
Decarbonization Zone Pilot
Project that would enable
gas corporations to stop
providing gas service within
designated areas.
Chaptered by
Secretary of
State. Chapter
602, Statutes of
2024.
9/25/24
Support 1a, 1d CPA supports the
bill’s goal to establish
a process to identify
and implement
pilot projects to prune
the natural gas
system. Earlier
versions of the bill
contained language
that inadvertently
threatened CCA
ratemaking authority,
and CPA took an
Oppose Unless
Amended position.
CPA successfully
worked with the
sponsor and author
to remove this
language.
AB 1176
Assemblymember Rick
Zbur
General plans: Local
Electrification Planning Act
Held in Senate
Energy, Utilities,
and
Support 3b, 3c, 3e, 3f, 5d This bill directs cities
and counties to plan
for the increased
Agenda Page 169
Board of Directors Item 6
Requires a city or county to
prepare and adopt a local
plan that identifies
opportunities to expand EV
charging and helps key
constituencies access zero-emissions technologies.
Communication
Committee at
request of author.
7/02/24
levels of building and
vehicle electrification
that will be needed to
meet the state’s
climate goals.
SB 1130
Senator Steven Bradford
Electricity: Family Electric
Rate Assistance: reports
Expands eligibility for the
Family Electric Rate
Assistance (FERA) utility bill
discount program to
households with fewer than
three members and requires
new reporting by the IOUs.
Chaptered by
Secretary of State.
Chapter 457,
Statutes of 2024.
9/22/24
Support 5a Currently, only 12%
of low-income
customers eligible for
FERA are registered
in SCE’s territory, in
contrast to very high
penetration rates for
the CARE program.
This bill could help
increase the
penetration rate for
FERA, which would
help reduce
electricity bills for
low-income
customers who don’t
meet the CARE
customer income
thresholds.
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Board of Directors Item 6
AB 2779
Assemblymember Cottie
Petrie-Norris
Independent System
Operator: transmission
planning
Directs CAISO to report to
the Legislature and CPUC on
the use of new grid
enhancing technologies
(GETs). GETs encompass a
suite of technologies that can
be used to maximize the
transfer of electricity across
existing transmission lines.
Chaptered by
Secretary of State -
Chapter 741,
Statutes of 2024.
9/27/24
Support 2e This bill could
support efforts to
expand the capacity
of transmission
systems at a lower
cost to ratepayers
AB 2329
Assemblymember Al
Muratsuchi
Energy: California
Affordable Decarbonization
Authority
Creates the Climate Equity
Trust Fund, and the
California Affordable
Decarbonization Authority to
oversee the Trust Fund, to
promote affordable electricity
rates and direct benefits to
electricity customers.
Held in Assembly
Appropriations
Committee
5/16/24
Support 3b, 5d Originally envisioned
in a 2022 bill, this bill
would create a
separate source of
funding for energy
and electrification
outside of ratepayer
rates and could be
used as a vehicle to
curb the ongoing
increase in electricity
bills, particularly on
the delivery side of
the bill.
Agenda Page 171
Board of Directors Item 6
AB 817
Assemblymember Blanca
Pacheco
Open meetings:
teleconferencing:
subsidiary body
Allows, until January 2026, a
subsidiary body of a local
agency to teleconference
without meeting all the
teleconferencing
requirements of the Brown
Act.
Failed in Senate
Local
Government
Committee
6/05/24
Support 1d, 5d A subsidiary body is
one that does not
have decision-making authority.
CPA’s Community
Advisory Committee
would qualify as a
subsidiary body
under this bill
AB 1852
Assemblymember Blanca
Pacheco (Principal
coauthor Senator
Anthony Portantino)
Joint powers agencies:
Clean Power Alliance of
Southern California:
meetings
Authorizes CPA to continue
its practice of allowing
alternate board members
who are not elected officials
to participate in closed
session meetings when the
primary board member is
unavailable.
Chaptered by
Secretary of
State – Chapter
24, Statutes of
2024.
6/26/24
Sponsor 1d CPA sponsored
similar legislation in
2019 (SB 355;
Portantino), which
authorized CPA to
adopt a policy to
allow alternate board
members who are
not elected officials to
participate in closed
session meetings if
the primary board
member is
unavailable. The bill
was chaptered into
law in 2019 and
sunsets on January
Agenda Page 172
Board of Directors Item 6
1, 2025. This bill
allows CPA to extend
that practice until
January 1, 2030.
Agenda Page 173
Staff Report – Agenda Item 7
To: Board of Directors
From: Matthew Langer, Chief Operating Officer
Scott Gropp, Strategic Sourcing Manager
Reviewed By: Nancy Whang, General Counsel
Approved By: Ted Bardacke, Chief Executive Officer
Subject: Amendments to CPA’s Non-Energy Public Contracting Policy and Chief Executive Officer’s Delegated Authority
Date: October 10, 2024
RECOMMENDATION
Adopt Resolution No. 24-10-075 to approve amendments to the Non-Energy Contracting Policy.
BACKGROUND
On May 2, 2019, in Resolution 19-05-009 (the “Resolution”), the Board delegated to the Chief Executive Officer (“CEO”) expenditure authority of up to $125,000 and to increase any non-energy contract amount by up to 10%. The Resolution also authorized the CEO to exercise all rights and powers specified under the contract, including, for example, certain changes in scope, approval of subcontractors, and reimbursement of contractors for direct costs included under the agreement.
Separately, on December 5, 2019, the Board approved the Non-Energy Contracting Policy No. 12 (the “Policy”), which maintained and further formalized practices of utilizing the Request for Qualifications and Task Order Solicitations, Request for Proposal, and Informal Bid processes. The Policy defined the standards for these competitive solicitations, including the dollar thresholds in which CPA is mandated to use particular Agenda Page 174
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solicitation types.
1 Both the Policy and Resolution have been effective in giving staff a framework for effective administration of CPA’s contracting policy; however, having two governing documents (the Resolution and the Policy) has at times proved inefficient as staff determines how to maintain policy compliance.
DISCUSSION
A. The Resolution’s Delegated Signing Authority Limits.
The CEO’s expenditure authority limits specified in the Resolution have not been reviewed in five years. CPA has grown2 and expanded during this time. Inflation has also increased by 25% since 2019 to the present, which has contributed to the increase in the cost of services from CPA’s contractors and vendors.3 Therefore, staff believes that an update to the authority granted in the Resolution is warranted. At its September 19, 2024 meeting, the Executive Committee concurred.
Staff researched other major CCAs as well as similarly-situated public agencies in Southern California for comparison. The results are summarized below.
CCA CEO Expenditure Authority and Revenue
CCA Revenue (in millions) CEO Expenditure
Authority
CPA (current) 1,585 $125,000
MCE 788 $400,000
Sonoma Clean Power 250 $250,000
3CE 563 $200,000
AVA (formerly EBCE) 963 $100,000
SJCE 515 $450,000
Public Agency CEO Expenditure Authority and Revenue
Agency Revenue (in millions) CEO Expenditure
Authority
CPA (current) 1,585 $125,000
1 There was one amendment to the policy in March 2021 wherein the definition of “Goods” was updated to include media advertising. 2 For example, CPA’s budget for expenditures, including capital outlay, has increased from $768 million in FY 20192020 to $1.462 billion in FY2024-25. 3 U.S. Bureau of Labor Statistics (https://data.bls.gov/cgi-bin/cpicalc.pl).
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Board of Directors Item 7
LADWP 6,300 $1,000,000
LA Metro 5,700 $500,000
MWD 2,300 $250,000
LAWA 2,100 $150,000
Accordingly, staff are recommending an increase of the CEO’s signing authority from the current $125,000 to $250,000, and a change to the CEO’s authority to increase the aggregate contract price from the current limit of 10% of the contract price to no more than $250,000. Establishing an overall dollar amount for contract price increases at an amount equal to the CEO’s signing authority sets firmer limits and controls on price increases, particularly for large non-energy contracts that still must come to the Board for approval, while aligning the contract price increases with the CEO’s overall signing authority.
A comparison of the current expenditure authority and the proposed update is illustrated in the table below.
EXPENDITURE AUTHORITY
Designated Authority Current
Authority
Proposed
Update
To enter into any contract for non-energy goods or
services when 1) the contract price for any single
contract or 2) the aggregate contract value with
any single vendor in a single FY period is:
Up to
$125,000 Up to $250,000
To increase the aggregate contract price for any
single Board-approved non-energy goods or
services contract by no more than:
10% of the
original
contract price
over the term
of that
contract
Up to $250,000
B. The Policy
The rules regarding the competitive solicitation of goods and services have not been revisited since the Non-Energy Public Contracting Policy was first implemented on December 5, 2019, other than the minor edit in March of 2021. Since that time, CPA’s continued growth and the increasing volume of non-energy contracts associated with that Agenda Page 176
Board of Directors Item 7
growth have created increasing administrative burdens that decrease vendor engagement and competitiveness in the contracting process.
The annual volume of non-energy contracts increased by 78% from 2022 to 2023 (from 52 to 93), with that growth continuing into 2024 (102 as of September). In 2023, eight (8) contracts with a not-to-exceed amount between $125,000 - $250,000 required Board approval, which represents 47% of the contracts presented to the Board for approval.
Vendors participating in competitive solicitations can expect to invest at least ninety (90) days in the process, which can often be extended due to the additional time associated with presenting a contract for Board review. This creates a significant barrier for small and local businesses who may not be able to invest that much front-end time and staff resources in a project.
Staff researched other major CCAs as well as public agencies in Southern California to compare their requirements for competitive solicitations. The widely used practice of allowing no solicitation for the lowest dollar value contracts, coupled with higher thresholds for formal solicitations, helps ensure access to the best available services and technologies in a timely manner. The referenced policies are illustrated below.
CCA Non-Energy Public Contracting Policies
CCA No Solicitation Informal Solicitation Formal
Solicitation
CPA (current) N/A $0 - $50,000 $50,000+
MCE $0 - $60,000 $60,000 - $400,000 $400,000+
SDCP $0 - $10,000 $10,000 - $100,000 $125,000+
3CE $0 - $5,000 $5,000 - $50,000 $50,000+
AVA $0 - $10,000 $10,000 - $100,000 $100,000+
Public Agency Non-Energy Public Contracting Policies
Agency Informal Solicitation Formal Solicitation
CPA (current) $0 - $50,000 $50,000+
LADWP $0 - $100,000 $100,000+
LA Metro $0 - $100,000 $100,000+
Metropolitan Water District $0 - $100,000 $100,000+
LAWA $0 - $150,000 $150,000+
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Board of Directors Item 7
Accordingly, staff are recommending adjusting the dollar values for CPA’s solicitation processes for services or a combination of goods and services. CPA would retain the “Informal Bid” solicitation process, which would be renamed Request for Quote (“RFQu”) and have more specific requirements about how it should take place, while the anticipated dollar value for when a RFQu would be used is proposed to be between $10,001-100,000.
A Request for Proposal or a Task Order Solicitation will be required for anticipated contract values of $100,001 or more. For services or combination of goods and services, with a contract value under $10,000, solicitations would not be required, although guidance on soliciting multiple quotes is established in the proposed revised policy.
For Goods only,
4 staff are proposing to adjust the dollar values for when competitive solicitations are required, and for when the RFQu, or Request for Bid (previously known as “Invitation to Bid”) will be required.
A comparison of the current dollar values that trigger certain types of solicitations and the proposed updates are illustrated in the table below.
SERVICES OR COMBINATION OF GOODS AND SERVICES
Solicitation Category Current Policy Proposed Update
No formal bids or proposals required N/A $0-$10,000
Request for Quote (RFQu)
(Previously known as Informal Bid) $0-$50,000 $10,001-$100,000 Request for Proposals (RFP) or Request
for Qualifications (RFQ) $50,001+ $100,001+
GOODS
Solicitation Category Current Policy Proposed Update
No formal bids or proposals required $0-$50,000 $0-$75,000 Request for Quote (RFQu)
(Previously known as Informal Bid) $50,001-$125,000 $75,001-$150,000 Request for Bid (RFB)
(Previously known as Invitation for Bid) $125,001+ $150,001+ 4 Goods are defined as all types of tangible personal property, including materials, supplies, furnishings, software, or equipment, and media advertising, including print, broadcast, out-of-home, digital media or other electronic mediums.
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Board of Directors Item 7
SUMMARY OF STAFF’S PROPOSAL
Based on this background and research, staff recommends adopting Resolution No. 24- 10-075 in order to:
1. Add the delegated authority parts of the Resolution to the Policy to create a single non-energy procurement document.
2. Increase the Chief Executive Officer’s delegated signing authority to $250,000 for any single contract in a 12-month period or for any single vendor within any single Fiscal Year period or for an increase to a contract price.
3. Change the name of an “Informal Bid” to a “Request for Quote” (RFQu) and more formally establish requirements for the RFQu; change the name of “Invitation to Bid” to “Request for Bid,” which is used only in solicitations for Goods.
4. Updates the dollar values that trigger certain types of solicitations. a. For services or a combination of goods and services, any contract with an anticipated value greater than $100,000 will require a Request for Proposal or a Request for Qualifications/Task Order Solicitation. Anything between $10,000 to $100,000 may be solicited through the RFQu process. Any contract with an anticipated value of $10,000 or less, no solicitation will be required.
b. For goods, any contract with an anticipated value of greater than $150,000 will require a Request for Bid process. Any contract with an anticipated value up to $75,000 will not require a solicitation and any contracts with anticipated value between $75,001 to $150,000 may use the RFQu process.
5. Other clean up, including, for example updating from “Executive Director” to “Chief Executive Officer.”
The Chief Executive Officer will continue to provide a monthly report to the Board regarding any contracts executed under the delegated contract authority. This requirement will now be memorialized as a requirement in the updated Policy. The proposed action does not impact energy contracting authority or procedures, which are covered by the Board-adopted Energy Risk Management Policy.
Agenda Page 179
Board of Directors Item 7
The Non-Energy Public Contract Policy was presented to the Executive Committee at its September 19th meeting and the committee indicated its support.
ATTACHMENTS
1. Presentation
2. Resolution No. 24-10-075
3. Proposed amendments to the Non-Energy Public Contracting Policy Agenda Page 180
Proposed Amendments to CPA’s
Non-Energy Public Contracting
Policy
October 10, 2024
Agenda Page 181
Current Non-Energy Public Contracting Policy
What is the Non-Energy
Public Contracting Policy?
What is the CEO’s delegated
expenditure authority?
Why do they need to be
updated?
2 The Policy establishes
competitive solicitation
and procurement
practices, including
utilizing Request for
Qualifications (RFQ) and
Task Order Solicitations,
Request for Proposals
(RFPs), and Informal Bid
processes, and explains
the standards for these
solicitations, including the
dollar thresholds in which
CPA is mandated to use
particular solicitation
types.
By Resolution, the
Board delegated to the
CEO expenditure
authority of up to
$125,000 and to
increase any non-energy
contract amount by up
to 10%. The Resolution
also authorized the CEO
to exercise all rights and
powers specified under
the contract, including,
for example, certain
changes in scope,
approval of
subcontractors, and
reimbursement.
The dollar thresholds set
forth in the Policy and
Delegated Expenditure
Authority have not been
updated since 2019. Since
that time, CPA’s continued
growth, increasing
contract volume, and
external factors such as
inflation have created
increasing administrative
burdens, decreased CPA’s
ability to be competitive in
a changing market, and
hindered the ability of
smaller businesses to
compete for CPA
business.
Agenda Page 182
Proposed Policy Updates
1. Add the CEO delegated authority
parts of the Resolution to the Policy to
create a single non-energy
procurement document.
2. Increase the CEO’s delegated
expenditure authority to $250,000 for
any single contract in a 12-month
period or for any single vendor within
any single Fiscal Year period.
3. Change the name of an “Informal Bid”
to a “Request for Quote” (RFQu) and
more formally establish requirements
for the RFQu. Change the name of
Invitation to Bid to Request for Bid,
which is used for Goods Only
4. Update the dollar values that trigger
certain types of solicitations.
5. Other clean up, including, for example
updating from “Executive Director” to
“Chief Executive Officer.”
3 SERVICES, OR A COMBINATION OF GOODS AND SERVICES
Solicitation Category Current Policy Proposed Update
No formal bids or proposals required N/A $0-$10,000
Request for Quote (RFQu)
(Previously known as Informal Bid) $0-$50,000 $10,001-$100,000 Request for Proposals (RFP) or Request
for Qualifications (RFQ) $50,001+ $100,001+
GOODS
Solicitation Category Current Policy Proposed Update
No formal bids or proposals required $0-$50,000 $0-$75,000 Request for Quote (RFQu)
(Previously known as Informal Bid) $50,001-$125,000 $75,001-$150,000 Request for Bid (RFB)
(Previously known as Invitation for Bid) $125,001+ $150,001+
EXPENDITURE AUTHORITY
Designated Authority Current Authority Proposed Update
To enter into any contract for non-energy
goods or services when 1) the contract
price for any single contract or 2) the
aggregate contract value with any single
vendor in a single FY period is:
$125,000 or less $250,000 or less
To increase the aggregate contract price
for any single Board-approved non-energy goods or services contract by no more than:
10% of the original
contract price over
the term of that
contract
$250,000 or less
Agenda Page 183
Comparison Data for Delegated Expenditure
Authority and Competitive Solicitations
4 CCA CEO Expenditure Authority and Revenue
CCA Revenue (in millions) CEO Signature
Authority
CPA (current) 1,585 $125,000
SJCE 515 $450,000
MCE 788 $400,000
Sonoma Clean Power 250 $250,000
3CE 563 $200,000
AVA (EBCE) 963 $100,000
Public Agency CEO Expenditure Authority and Revenue
Agency Revenue (in millions) CEO Signature
Authority
CPA (current) 1,585 $125,000
LADWP 6,300 $1,000,000
LA Metro 5,700 $500,000
MWD 2,300 $250,000
LAWA 2,100 $150,000
CCA Non-Energy Public Contracting Policies
CCA No Solicitation Informal Solicitation Formal
Solicitation
CPA (current) N/A $0 - $50,000 $50,000+
MCE $0 - $60,000 $60,000 - $400,000 $400,000+
SDCP $0 - $10,000 $10,000 - $100,000 $125,000+
3CE $0 - $5,000 $5,000 - $50,000 $50,000+
AVA $0 - $10,000 $10,000 - $100,000 $100,000+
OCPA $0 - $10,000 $10,000 - $100,000 $100,000+
Public Agency Non-Energy Public Contracting Policies
Agency Informal Solicitation Formal Solicitation
CPA (current) $0 - $50,000 $50,000+
LADWP $0 - $100,000 $100,000+
LA Metro $0 - $100,000 $100,000+
MWD $0 - $100,000 $100,000+
LAWA $0 - $150,000 $150,000+
Competitive Solicitation Comparison Delegated Expenditure Comparison Agenda Page 184
Proposed Board Action
5 Adopt Resolution No. 24-10-075 authorizing the adoption of the proposed amendments to CPA’s Non-Energy Public Contracting Policy.
Agenda Page 185
RESO NO. 24-10-075
RESOLUTION NO. 24-10-075
RESOLUTION OF THE BOARD OF DIRECTORS OF CLEAN
POWER ALLIANCE OF SOUTHERN CALIFORNIA
ADOPTING AND APPROVING THE AMENDED NON-ENERGY PUBLIC CONTRACTING POLICY
THE BOARD OF DIRECTORS OF CLEAN POWER ALLIANCE OF SOUTHERN CALIFORNIA HEREBY RESOLVES AS FOLLOWS:
WHEREAS, Clean Power Alliance of Southern California (formerly known as Los Angeles Community Choice Energy Authority) (“Clean Power Alliance” or “CPA”) was formed on June 27, 2017;
WHEREAS, on May 2, 2019, the Board of Directors (“Board”) adopted Resolution 19-05-009 (the “Resolution”) delegating non-energy contract expenditure authority and the exercise of the rights and powers specified under those non-energy contracts; WHEREAS, on December 5, 2019, the Board approved the Non-Energy Contracting Policy No. 12 (the “Policy”), which established the practices, processes, and requirements for competitively soliciting or otherwise procuring non-energy goods, services, or a combination of goods and services;
WHEREAS, staff has continued to toggle between the Resolution and the Policy in order to assess the contracting and governance requirements; WHEREAS, the Board has considered CPA’s growth and expansion and the prevailing business conditions, including a 25% increase in inflation since 2019 and determined that refinements or updates to the CEO’s delegated authority and the rules regarding competitive solicitations of non-energy goods, services, or a combination of goods and services are needed;
WHEREAS, CPA has determined that any refinements should include combining the authority and requirements specified in the Resolution into the Policy; and, WHEREAS, the Board finds that an update to the Policy are in the best interest of CPA wherein the Policy, among other changes, will replace the ordering paragraphs A and B of the Resolution.
NOW, THEREFORE, BE IT DETERMINED, AFFIRMED, AND ORDERED BY
THE BOARD OF DIRECTORS OF THE CLEAN POWER ALLIANCE OF SOUTHERN CALIFORNIA that the attached Non-Energy Contracting Policy, presented as Exhibit A, as amended therein, is hereby approved as of October 10, 2024; FURTHER DETERMINED, AFFIRMED, AND ORDERED that any and all acts authorized pursuant to this Resolution and performed prior to the passage of this Resolution are hereby ratified and approved; and
Agenda Page 186
RESO NO. 24-10-075
IT IS FURTHER DETERMINED, AFFIRMED, AND ORDERED that this Resolution shall be continuing and remain in full force and effect.
ADOPTED AND APPROVED this 10th day of October 2024.
____________________________
Deborah Klein Lopez, Chair
ATTEST:
_________________________
Gabriela Monzon, Secretary
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024 Policy Title Non-Energy Public Contracting Policy
Policy Number CPA 2019-12 Original: 12/05/2019
Amended: 03/04/2021
Amended: 10/10/2024
I.
PURPOSE
It is in the interest of the Clean Power Alliance of Southern California (“CPA”) to establish non-energy competitive solicitation and procurement practices for non-energy services, goods, or a combination thereof that facilitate efficient business operations, offer fair compensation, transparency, accountability, and provide local workforce opportunities within a framework of high quality, competitive offerings whenever practical.
This policy (“Policy”) shall not apply to any energy procurements or transactions governed by the Energy Risk Management Policy, Resolutions Nos. 18-006 and 18-009, or any amendments or successors thereto. (“ERMP”) as enacted, adopted, or revised from time to time by CPA’s Board of Directors.
II.
DEFINITIONS
1. “Architectural and Engineering Services” include Services provided by architectural, landscape architectural, engineering, environmental, land surveying, and construction project management firms, or services incidental thereto that members of these professions and those in their employ may logically or justifiably perform, which are subject to Article XXII of the California Constitution and Government Code Section 4529.10 et seq.
2. “Architectural and Engineering Agreement” is an agreement between CPA and a Proposer for Architectural and Engineering Services.
3. A “Best Value” award is based on factors in addition to price that provide the best overall value to CPA, except as applied to Public Works Contracts over $1,000,000, which are subject to the “best value” definition set forth in Public Contract Code Section 20155.1(a).
4. “Board” means the Board of Directors of CPA.
5. “Chief Executive Officer” or “CEO” includes the CEO’s delegee.
5.6. “Competitive Solicitation” is a competitive process in which CPA procures Goods, Services, or a combination thereof from Proposers, including the procurement of Architectural and Engineering Services, in order for CPA to secure the Best Value for CPA and its customers. This definition does not apply to “Public Works Contract.”
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024
6.7. “Cooperative Procurement” refers to the combining of requirements of two or more Public Entities to leverage the benefits of volume purchases, delivery and supply chain advantages, best practices, the reduction of administrative time and expenses, or some combination thereof.
7.8. “Fiscal Year” or “FY” refers to CPA’s fiscal year as specified in Section 7.1 of CPA’s Joint Powers Agreement or as changed by CPA Board resolution.
8.9. “Goods” means all types of tangible personal property, including materials, supplies, furnishings, software, or equipment, and media advertising, including print, broadcast, out-of-home, digital media or other electronic mediums.
9. “Informal Bid Process” is a process wherein the Executive Director requests written quotes from at least three (3) vendors.
10. “Legal Services” is legal representation, advocacy, advice, counsel, or other similar legal services provided by an attorney, or a law firm, company or partnership with attorneys duly licensed by the California State Bar or authorized to practice in the state of California.
11. “Master Agreement” is an agreement between CPA and a Proposer for any Goods, Services, or combination thereof, except for a Legal Services Agreement.
12. “Office Equipment” includes furnishings, computers, information technology (IT) hardware or software, or other personal property.
13. “Piggyback Solicitation” refers to the use of a prior solicitation, competitively bid by a Public Entity for the same Goods and/or Services currently requested or needed by CPA; or may be a form of intergovernmental cooperative purchasing in which CPA will be extended the same pricing and terms of a contract entered into by another Public Entity. Generally, the originating entity can competitively award a contract that will include language allowing for other entities to utilize the contract, or, CPA may join in a single competitive procurement with another Public Entity. The Piggyback Solicitation provides an advantage in terms of pricing, thereby gaining economies of scale that CPA or an individual Public Entity would otherwise not receive if each competed on its own.
14. “Pre-Qualified Providers” or “PQP” is a Proposer who is available and willing to perform work on an as-needed basis under the Request for Qualifications process.
15. “Proposer” is a person or business entity who seeks to do business with CPA by responding to a Competitive Solicitation of any kind, a Cooperative Procurement or Piggyback Solicitation, or seeking to enter into a contract with CPA through an exception or alternative to the Competitive Solicitation requirements.
16. “Proposal” is a response by a Proposer to a request by CPA.
17. “Public Entity” means the state, county, city, city and county, district, public authority, public agency, municipal corporation, or any other political subdivision or public corporation in the state, including a community choice aggregator as defined in Public Utilities Code Section 331.1.
18. “Public Works Contract” means an agreement for the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind, pursuant to California Public Contract Code Section 1101.
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024
19. “Informal Bid Process” Request for Quote (“RFQu”)” is a process wherein the Executive DirectorCEO or at the CEO’s discretion, a delegee of the CEO, requests written quotes from at least three (3) vendors. The RFQu process can only be used when the CEO can establish a single set of criteria or parameters for the required Services, Goods, or Combination of Goods and Services, and can apply that criteria or parameter from the requested quotes. The CEO may select a vendor that offers the Best Value.
20. “Services” is the performance of labor by an outside company or individual for and/or on behalf of CPA. It can be rendered to CPA by a company or individual, with or without the furnishing of Goods.
21. “Specialized Services” are special services with persons specially trained, experienced, expert, and competent to perform the special services. The special services consist of services, advice, education or training for CPA. The special services include but is not limited to financial, economic, accounting (including the preparation and issuance of payroll checks or warrants), legal, administrative, or building security matters. The special services may include maintenance or custodial matters if the Board finds that CPA’s resources and economic interests are served by such a contract.
22. A “Task Order Solicitation” or “TO” is issued in the Request for Qualifications procurement process to solicit bids from providers who have been pre-qualified under the Request for Qualifications process. If CPA awards the bid, the TO will be appended to a Master Agreement once the Task Order is awarded to a Pre-Qualified Provider.
III.
DELEGATION OF PROCUREMENT OR PURCHASING AUTHORITY TO EXECUTIVE
DIRECTOR
1. The Board designates the Chief Executive Director (“EDOfficer (“CEO”) as CPA’s purchasing agent. As the purchasing agent for CPA, the Executive DirectorCEO is hereby authorized on behalf of CPA to (i) purchase Goods; (ii) rent furnishings and equipment; or (iii) contract for Services, Specialized Services, or Legal Services, as provided herein. The CEO may further delegate this authority in the CEO’s discretion.
2. Delegation of ED’s authority under this Policy is in addition to and must be consistent with Resolution 19-05-009 and its successors. The Executive DirectorCEO is authorized as follows without prior Board approval:
a. To enter into any contract for non-energy goods or services pursuant to this Policy when the contract price or the expected contract price for any single contract or vendor is $125250,000 or less within a 12-month period. or when any single vendor is to be paid $250,000 or less within any single FY period. b. To increase the aggregate contract price for any single Board-approved non-energy goods or services contract by no more than 10%$250,000 of the original contract price over the lifeterm of that contract.
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024
3. For any contracts, whether Board approved or executed under the Executive Director'sCEO’s delegated authority, the Executive DirectorCEO is further authorized to exercise all rights and powers specified under the contract as belonging to CPA, including but not limited to changes in original scope (, provided that for Board -approved contracts, any core programmatic changes, e.g., up toincluding a greater than 25% change of the original scope, shall be approved by the Board),, authorization of subcontractors, amendments, assignmentassignments, insurance, termination, and to perform such other acts and things related to the delivery of non-energy goods or services required in the contract. This delegated authority is subject to paragraph III.2., above.
4. A contract shall not be split into subparts or smaller similar actions to avoid the delegated limits specified above.
IV.
RULES REGARDING COMPETITIVE SOLICITATION OF GOODS OR SERVICES EXCEPT
ARCHITECTURAL AND ENGINEERING SERVICES AND PUBLIC WORKS
1. Services or a Combination of Goods and Services. A Competitive Solicitation for Services or a Combination of Goods and Services shall be required if the aggregate anticipated value of a contract exceeds $50,000 in any 12-month period or if, irrespective of the contract value, the ED determines in the ED’s discretion that a Competitive Solicitation is in the best interest of CPA. .For any contracts valued at $50,000 or less, the ED shall request quotes, whether written or oral, from at least three (3) vendors and the ED will purchase from the vendor offering the Best Value.
When
a. If the aggregate anticipated value of a Competitive Solicitationcontract is $10,000 or less in any Fiscal Year, no formal proposals or bids shall be required to procure Services or a Combination of Goods and Services. However, the CEO shall use best efforts to seek or obtain at least 2 competitive quotes. b. If the aggregate anticipated value of a contract is between $10,001 and $100,000 in any Fiscal Year, the CEO may procure the Services or Combination of Goods and Services through the RFQu Process.
a.c. If the aggregate anticipated value of a contract is greater than $100,000 in any Fiscal Year, one of the following processes mayshall be used. i. Request for Proposal (RFP):
1) Description: An RFP is typically used to procure complex or unique Services in which CPA’s requirements are defined but expertise and methods may vary; when creative or innovative approaches are needed; and/or, where performance of services is anticipated to be ongoing in nature.
2) Content: An RFP will include, at a minimum, a requirements statement or statement of work; experience, expertise, or qualification criteria; and evaluation criteria for which a Proposal will be evaluated. An RFP also typically states CPA’s goals,
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024 objectives, project summary, major tasks, or timelines. An RFP will include a sample agreement and may include a budget for the work being procured. CPA will require proposals to offer a detailed explanation of Proposer’s approach, detailed work plans, solutions, or methods, and price/budget, as applicable. 3) Contracting: CPA will contract with a Proposer through a written Agreement. CPA may engage in negotiations on the terms and conditions of the Agreement with the selected Proposer(s), including but not limited to the scope of services or price/budget. ii. Request for Qualifications (“RFQ”):
1) Description: An RFQ is typically used to procure Services or a combination of Goods and Services when CPA needs to establish a pool of Pre-Qualified Providers. The RFQ process is typically used to procure distinct, stand-alone, or discrete projects having a specific deadline; or for services ordered or used by CPA on a routine basis.
2) Content: The RFQ will specify the areas of expertise, experience, or knowledge that CPA seeks, and, if applicable, the process for a Proposer to become PQP in those specified areas. CPA will maintain a list of PQPs for each specified area. The RFQ should attach a copy of the proposed form of agreement.
3) Task Order Solicitation: PQPs will be awarded work through a Task Order Solicitation that CPA may issue from time to time. The TOs will contain CPA’s objectives; a statement of work, including any deliverables, tasks, or milestones; estimated time of completion; or pricing, cost, or budget. A TO will designate the area(s) of expertise, experience, or knowledge that CPA seeks or anticipates needing and the TO will be sent to PQPs in those specified area(s). Interested PQPs shall submit a bid in response to the TO and that bid should offer, at a minimum, Proposer’s acknowledgement of CPA’s objectives; approach to the identified statement of work, including any deliverables, tasks, or milestones; pricing, cost or budget; and other relevant information, solutions or methods as specified in the TO.
4) Contracting: A Proposer is expected to sign a Master Agreement no later than five (5) business days after CPA issues the relevant TO. A signed Master Agreement does not guarantee a
Proposer any minimum amount of work. The Master
Agreement is not effective unless and until a TO has been awarded by CPA and the Master Agreement has been executed by the successful Proposer and CPA.
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2. Goods.
Purchasea. If the aggregate anticipated value of Goods. EDa contract is $75,000 or less in any Fiscal Year, the CEO may purchase Goods from a single vendor an aggregate total amount of $50,000 of Goods in a single Fiscal Year without an Informal Bid Process a RFQu or Request for Bid. The ED CEO must affirm and approve such purchases as being necessary.
Informal Bid Process. For purchase of Goods with an
b. If the aggregate total amount between $50anticipated value of a contract in any Fiscal Year is $75,001 to $125150,000 for a single vendor in a single FY, the ED shall CEO may procure the Goods through the Informal Bid Process. ED may purchase from the vendor offering the Best Value. ED must approve any procurement of Goods, must verify compliance with the Informal Bid Process, must verify that RFQu Process.
a. c. If the procurement stays withinaggregate anticipated value of a contract in any Fiscal Year is greater than $150,000 in any Fiscal Year, the FY budget, and affirm the purchase is necessary.
b. Invitation for Bid (“IFB”):
i. Description: For any other purchase of Goods, EDCEO shall issue a formal IFB.
ii.i. Content: RFB. The IFB RFB shall specify, at a minimum, the item(s) specifications or dimensions; description of requirements; and quantities. A bid in response to an IFB a RFB must contain a Proposer’s name, address, phone number, and the proposed cost to provide the requested items., and other information requested by CPA. The IFB RFB should attach a copy of the proposed form of agreement. CPA will contract with a Proposer using a written agreement.
iii. Contracting: CPA will contract with a Proposer using a written agreement.
3. Notwithstanding anything in Sections 1 and 2 of this Article, the CEO may, in the CEO’s discretion, determine that it is in the best interest of CPA to procure any Goods, Services, or a Combination of Goods and Services through a process required to be utilized to procure a contract with a higher anticipated contract value, such as a RFP or RFB, irrespective of the anticipated aggregate contract value. The CEO must approve any procurement of Goods, must verify compliance with the solicitation processes, must verify that the procurement stays within the FY budget, and affirm the purchase is necessary.
3.4. Specialized Services or Legal Services. No competitive procurement is required for Specialized Services or Legal Services. However, it is recommended that the EDCEO use the Informal Bid RFQu Process to procure Specialized Services or Legal Services whenever practical. When using the Informal Bid RFQu Process, EDCEO may procure services from a provider offering the Best Value.
4.5. Rent or Lease of Office Equipment or Office Space: No Competitive Solicitation shall be required to rent or lease Office Equipment or office space provided that (a) ED the CEO affirms that the rent or lease of Office Equipment or office space is necessary; (b) ED solicits or reviews the CEO requests at least three two (2) quotes,
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024 whether verbal or written, from at least three (3 two (2) offerors; and (c) EDthe CEO approves of the rent or lease of Office Equipment or office space.
5.6. Awards of Competitive Solicitation: Competitive Solicitations may be awarded on a Best Value basis, unless otherwise required by California law or otherwise specified in the Competitive Solicitation document.
6.7. Additional Authorized Procurement Methods: CPA may engage in the procurement of Goods, Services, or some combination thereof through any of the following procurement methods.
a. Cooperative Procurement: CPA may use a Cooperative Procurement when the use of a Cooperative Procurement enhances operational efficiencies; demonstrates potential cost savings for CPA, including transaction costs. For example, CPA may purchase Goods or Services from contracts established pursuant to Leveraged Procurement Agreements (LPAs), California Multiple Award Schedules (CMAS), or through a joint procurement with another Public Entity.
b. Piggyback Procurement: CPA may engage in Piggyback Procurement when such a procurement can be shown to enhance operational efficiencies; demonstrate potential cost savings for CPA, including transaction costs; and when the Piggyback Procurement complies with California law. c. Sole Source Purchasing:
i. With the exception of Public Works Contracts and Architectural and Engineering Agreements, CPA may justify procurement of Services, or a combination of Goods and Services, from a sole source when the following factors exist:
1) No other vendor offers a service or employs personnel meeting the minimum requirements.
2) CPA’s required timeframe for project completion is critical and cannot be exceeded without extreme hardship.
3) The cost to continue with the same service provider is less than the cost for any other vendor due to the time necessary to get ‘up to speed’ (learning curve) with the project.
4) A unique and proprietary solution has been offered which is determined to be in the best interest of CPA.
ii. CPA may justify procurement of a Good from a sole source when the following factors exist. The Good is:
1) Available from only one source (e.g., proprietary to a manufacturer, distributor, and/or reseller, etc.).
2) The only brand that meets the qualifications or specifications needed by CPA.
3) A brand that must match or inter-member with an existing system, and cannot be substituted without replacing the system, resulting in significant costs to CPA
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024 4) Going to enable CPA to avoid other costs (e.g., data conversion, training, purchase of additional hardware, etc.).).
iii. The following factors shall not qualify as reasons to purchase with a sole source: personal preference for a product or Proposer; or the length of time needed to conduct a Competitive Solicitation is inconvenient. iv. In all cases, sole source purchases must be justified in writing, with sufficient detail to explain the basis for suspending the competitive procurement process, and the ED CEO shall review the justification and approve the use of sole source purchasing. The sole source justification shall be retained with the Proposer’s contract documentation. EDThe CEO may develop a justification form or checklist for sole source purchases. The EDCEO shall report any sole source contracts on a monthly basis.
7.8. Additional Procedures
a. EDThe CEO may, at his/hertheir discretion, shortlist Proposers; phase its evaluation of a Proposal; interview Proposers; or, require site inspections, demonstrations, or a pilot of proposed Goods or Services. b. EDThe CEO shall use his/her best efforts to secure at least three (3) Proposals from Proposers when using a Competitive Solicitation.
c. With regard to any Public Works Contract, CPA shall comply with all applicable lawlaws.
d. .
d. The CEO shall provide a monthly report to the Board on any contracts executed using the authority delegated hereunder.
V.
RULES REGARDING COMPETITIVE SOLICITATIONS OF ARCHITECTURAL AND ENGINEERING SERVICES:
The selection for Architectural and Engineering Services shall be based on the Proposer’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of Services required at fair and reasonable prices.
If CPA is required to procure Architectural and Engineering Services, pursuant to Article XXII of the California Constitution and Government Code Section 4529.10 et seq., the following process, at a minimum, shall be employed:
1. EDThe CEO shall issue a RFP or RFQ specifying the qualifications, competence, minimum standards, and other qualification-based criteria appropriate for the scope of work being sought by CPA, and attaching a copy of the proposed Architectural and Engineering Agreement;
2. EDThe CEO shall appoint a selection team consisting of at least two (2) employees who are most knowledgeable about the desired Services and scope of work;
3. The selection team shall rank the firms based upon professional experience, qualifications in the work to be performed, including relative project experience,
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Non-Energy Public Contracting Policy – Amended 03/02/202110/10/2024 demonstrated design excellence, capability and involvement of key personnel, excellence in cost control and scheduling, relative location of firm to project location, ability to perform the work within the established timeframe and any other criteria appropriate to the scope of work being considered. The selection team may conduct interviews of qualified firms, if deemed appropriate.
CPA will enter into an Architectural and Engineering Agreement with the Proposer that CPA determines, acting in its sole discretion, offers the Best Value.
VI.
COMPETITIVE SOLICITATION ADVERTISEMENT AND PROPOSER LIST
1. All Competitive Except as otherwise provided in this Policy, RFPs, RFQs, Task Order Solicitations, and RFBs shall be posted on CPA’s website. CPA is not required to formally publish its Competitive Solicitations in a newspaper or similar publication.
2. Notwithstanding the RFQ process and the PQP list, CPA may maintain a list of Proposers for any Competitive Solicitation. To be added to the list of Proposers, interested Proposers must provide the EDCEO’s delegee with Proposer’s contact information, including address, phone number, and a current email address. It is the Proposer’s obligation to keep its contact information current with CPA. CPA will use its best effort to send any Competitive Solicitations to all Proposers who request to be placed on the list of Proposers.
3. CPA does not guarantee any Proposer placed on the list of Proposers any work.
VII.
RESERVATION OF CPA’S RIGHTS
1. EDThe CEO may, at itsthe CEO’s sole discretion, take any of the following actions:
a. Reject any or all Proposals, for any reason without explanation to the Proposer(s);
b. Elect in its Competitive Solicitation to select any part of a Proposal, or sub-divide, or combine a Proposal;
c. Cancel a Competitive Solicitation, in its entirety;
d. Elect to proceed with a contract for only some of the Services included in the Proposal.
2. EDThe CEO shall have the right to amend a Competitive Solicitation by written addendum. CPA is responsible only for that which is expressly stated in the Competitive Solicitation document and any authorized written addenda. Should such addendum require additional information not previously requested, failure to address the requirements of such addendum may result in the Proposal being found non-responsive and not being considered, as determined in the sole discretion of CPA.
3. EDThe CEO is not responsible for and shall not be bound by any representations, statements, or explanations made by any individual acting or purporting to act on his/her behalf, other than the CPA Staff member identified on the Competitive Solicitation document, provided the representations, statements, or explanations by the identified CPA Staff member are in writing.
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4. EDThe CEO reserves the right to waive inconsequential irregularities in a submitted Proposal.
5. EDThe CEO reserves the right to submit supplementary follow-up questions or inquiries to request clarification of information submitted and to request additional information from any one (1) or more of the Proposers.
6. CPA shall not be liable for any costs incurred by any Proposer in connection with the preparation or submission of any Proposal or any action taken by Proposer in its effort to do business with CPA. Any and all such costs whatsoever shall remain the sole responsibility of the Proposer.
7. CPA shall not be liable to any Proposer in law or equity for any reason whatsoever for any acts or omissions arising out of or in conjunction with this Policy.
8. CPA shall require Proposers to provide certain performance assurances, including, but not limited to, performance security or payment and performance bonds for Public Works Contracts.
9. With regard to Public Works Contract, CPA shall comply with applicable law.
10. Proposers are expected to complete all of their due diligence activities prior to entering into any final contract negotiations with CPA, including a review of CPA’s policies, requirements, forms, or other guidance documents that CPA may issue from time to time. CPA Policies, including CPA’s Vendor Communications Policy, are available on CPA’s website at: www.cleanpoweralliance.org/key-documents.https://cleanpoweralliance.org/public-documents/administrative-documents/.
VII.
SEVERABILITY
If any section, subsection, sentence, or clause of this Policy is determined to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of this Policy as a whole or of any section, subsection, sentence, or clause herein that is not so determined.
Agenda Page 197
Staff Report – Agenda Item 8
To: Board of Directors
From: Joanne O'Neill, Director, Customer Programs
Reviewed By: Matt Langer, Chief Operating Officer
Nancy Whang, General Counsel
Approved By: Ted Bardacke, Chief Executive Officer
Subject: Program Update: Energy Team and Efficient Cooling for Low-Income Customers Date: October 10, 2024
RECOMMENDATION
Receive presentation on Energy Team and efficient cooling for low-income customers.
ATTACHMENT
1. Program Update: Energy Team and Efficient Cooling for Low Income Customers Presentation
Agenda Page 198
Customer Programs Update:
Energy Team & Efficient Cooling
for Low Income Customers
October 10, 2024
Agenda Page 199
Agenda
2 CPA Energy Team
Efficient Cooling for Low Income Customers
Q&A
Informational Item:
Today’s presentation provides an update on two of CPA’s newest Customer Programs.
Agenda Page 200
Energy Team
Agenda Page 201
Overview
4 The Energy Team provides personalized energy solutions for energy efficiency and electrification upgrades to help residential and small business customers make informed
decisions.
• Free virtual energy assessments and customized
electrification plans to help guide decisions about what upgrades to pursue
• Support for how to maximize cost savings from local,
state and federal rebates and tax credits.
• Central hub of information to connect customers with
other relevant CPA programs and assistance.
The Energy Team was launched September 2024
Agenda Page 202
Energy Team Services
5 Personalized technical assistance
Virtual energy assessments and
customer electrification plans
Rebate-finding tools
Contractor-finding resource
Referrals to CPA programs and other
offerings
Online tools to estimate the costs and
benefits of heat pumps, EVs and solar
installations (coming in Q4)
Agenda Page 203
Customized Energy Assessments
6 After an initial conversation with an
Energy Team member, schedule a time
for a home or small business assessment:
Use your phone or laptop
Typically takes 30-60 minutes
Receive a customized electrification
plan
Provides multiple approaches to
electrify given current electrical panel
capacity
Receive links to rebates and
contractor-finding tools
Example Electrification Plan: Maximize
Existing Panel Capacity Scenario
Agenda Page 204
Coming in Q4
7 Choose Tools: Online savings
calculators
• Heat pump hot water heaters
• Heat pump space heaters
• Electric vehicles
• Solar installations
Agenda Page 205
Call on the Team
8 Step 1:
Go to website
www.cleanpoweralliance.org/energyteam
Step 2:
Fill out the Welcome Form, a simple
questionnaire to help advisors best serve you
Agenda Page 206
Additional Ways to Contact
Your Energy Team
9 Call 866-982-3080
weekdays from 9am -5pm
Email Energy Team at
[email protected]
Chat though program website
Websites and marketing available in English
Spanish and Simplified Chinese
• Call-center support available in additional
languages (with translator service)
• Chat is only available in English (currently)
Agenda Page 207
Marketing and Outreach
10 • CPA awareness campaign will begin with radio,
streaming and single engine marketing
• Short window due to election and holidays; begins
September 30th and runs through mid/late October
Phase 1
• Begins in early 2025
• Includes: Social media, postcards, email, YouTube,
digital out of home, and events
Phase 2
• Find Energy Team factsheet on
the Community Portal
• Talk to your community about
how they can use the Energy
Team
What Can You Do?
Agenda Page 208
Efficient Cooling for Low
Income Customers
Agenda Page 209
Background
Earlier this year CPA and Los Angeles County agreed to a change of the implementation date for CARE customer’s 100% Green Energy default to first quarter 2027. This change in transition date frees up approximately $6 million in revenue through the end of fiscal year 2026-2027.
Per the Board-approved budget CPA will devote that savings over the next three fiscal years to provide an alternative benefit to customers on low-income assistance rates (CARE or FERA) across our service territory.
CPA recognizes and seeks to address the importance of healthy communities, including those disproportionately affected by air pollution and climate change 1 Increasing access to energy-efficient air conditioning promotes public health and decreases the cost of operation. Efficient equipment can also enable participation in demand response programs to support grid reliability, both of which reduce costs for CPA and its customers.
1 Clean Power Alliance of Southern California Joint Powers Agreement Section 8(m) Agenda Page 210
Extreme Heat and Public Health
13 Climate hazards, such as extreme heat, are increasing in severity and frequency due to climate change. LA County and national studies have shown that it causes more deaths annually than any other climate-related hazard.
To-date policy efforts have been focused on workplaces, not homes. We have minimum safe indoor air temperature requirements for heating in residential settings but not maximum temperature levels that could require cooling.
LA County Department of Public Health in coordination with the Chief Sustainability Office has been directed to investigate a safe maximum indoor temperature threshold for dwellings. Installing or upgrading dwelling units can be costly, particularly for low-income residents and property owners who serve them.
This CPA rebate program will be supportive of LA County’s efforts and help to protect vulnerable populations from extreme heat in residential buildings by supporting both tenants and property owners.
Agenda Page 211
Multifaceted Program Approach
14 Decisions about cooling equipment are made by both occupants and building owners/operators.
• Occupants, owners or tenants, typically have the ability to use equipment that does not require advanced installation or building modifications • For rentals properties, building owners or managers need to be involved if equipment requires electrical changes or contractor driven installations CPA program commits $6M over three years to address both of these audiences through two programmatic pathways :
1. Consumer Instant Rebate
2. Technical Assistance and Incentives for Property Owners Agenda Page 212
Consumer Instant
Discount
15 Partnering with Golden State Rebates allows for
incentive layering and leverages existing platform
and infrastructure to minimize implementation
costs
CPA customers on CARE or FERA will receive a
combined point-of-sale discount of $300 ($210
from CPA and $90 from energy efficiency funds)
applied to their purchase, reducing immediate
upfront cost for customers.
$3.3 million in funding to incentivize 15,000
room/window air conditioners. Launch expected in
in October/November 2024, with marketing push in
spring of 2025.
Will coordinate with other state and regional
programs
Implementation Approach:
Contract amendment with
CLEAResult (administrator of the
Energy Team for Not-To-Exceed
amount of $116,700 includes:
• 3-year program administration
• CPA specific website tile on
Golden State Rebates web
portal
• Customer validation
• Retailer training and
communication
• Layering with existing $90
energy efficiency incentive
Agenda Page 213
Instant Rebate Customer Journey
16 Step 1:
Go to website and enter
information to validate
eligibility
Step 2:
Select Lowe’s, in-store or
online, or Home Depot
online with store pick-up
Step 3:
Apply coupon to purchase
of ENERGYSTAR® room
air conditioning unit
Agenda Page 214
Technical Assistance and
Incentives for Property
Owners
17 Program will target small and medium multifamily
buildings in need of support to maintain healthy
indoor air temperatures
Provides technical support for landlords to evaluate
options and feasibility for efficient cooling and
strategies for passive cooling
Adoption of efficient cooling will reduce energy use,
providing cost savings benefits to CPA and tenants.
Owners of properties serving CARE/FERA customers
or those within a disadvantaged community (DAC)
will be eligible for incentives to offset costs of
efficient cooling building retrofits
Implementation Approach:
• Request for Proposal (RFP) for a
vendor to provide technical
support and landlord
engagement (Q4 2024)
• Launch program outreach in
spring 2025
• Budget of $2.7 million for
technical assistance and
incentives
Agenda Page 215
Questions
Agenda Page 216
Management Report
To: Board of Directors
From: Ted Bardacke, Chief Executive Officer
Subject: Management Report
Date: October 10, 2024
CPA Named Nation’s Top Green Energy Supplier
For the second year in a row, CPA earned a prestigious number one national ranking in retail sales of green power by the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL). NREL’s Utility Green Power Rankings is an annual list of top green power providers throughout the United States and includes private Investor Owned Utilities, Publicly Owned Utilities, and not-for-profit Community Choice Aggregators such as CPA. NREL measures green power sales as the amount of renewable energy sold to customers beyond those required by individual state law. The number one ranking is a testament to our communities and customers who have chosen to take aggressive climate change mitigation measures through their electricity purchasing power.
Below is a summary of the NREL top ten green power providers for 2023.
Agenda Page 217
Board of Directors Management Report
Current Rate Comparisons with SCE
As predicted for the Board in August and discussed briefly at the September Board meeting, SCE implemented a generation rate decrease of approximately 12% on October 1st. This rate decrease is a one-time refund to SCE generation customers for SCE’s “overcollection” of approximately $725 million dollars from January through August of 2024, amortized over a 12-month period. SCE generation rates will go back up 18% in October 2025 once this refund has been completed. Also on October 1st, SCE implemented an increase to its delivery rates of approximately 2% to pay for extraordinary wildfire mitigation and vegetation management costs.
This out-of-cycle generation rate decrease by SCE does not impact CPA customers, as they pay CPA for generation costs, not SCE. However, it does worsen CPA’s current competitiveness with SCE. The orange column in the table below shows current residential bill comparisons, along with a history of bill comparisons for the past 4+ years.
The current comparison is similar to CPA’s worst competitive time period (2021), which was brought back into line with historical norms over the course of a year. The table also shows that since 2022 CPA has tended to benefit competitively from SCE’s multiple rate changes, though not in this most recent case.
Another SCE generation rate change is expected sometime in the first quarter of 2025.
This change will be accompanied by the annual adjustment to the Power Charge Indifference Adjustment (PCIA), which is currently negative for CPA customers (i.e. CPA customers get a credit on their bill). Unlike SCE generation rate changes, a change to the Agenda Page 218
Board of Directors Management Report
PCIA will impact customer bills. The direction, magnitude, and implementation timing of the PCIA change is highly uncertain. This uncertainty about where CPA’s competitiveness will be in the first quarter of 2025 is noted in the green column in the table above.1 CPA staff expect to have a more complete picture of the 2025 outlook by the November Board meeting, where possible remediation steps for a PCIA change, if warranted, will be discussed.
Federal Lobbyist
CPA recently hired Thorn Run Partners (TRP), a Washington D.C. based lobbying firm to represent it federally. TRP is consistently ranked as one of the top federal lobbying firms and represents over 270 clients in a diverse range of sectors, including local government and energy. The City of West Hollywood, the Los Angeles County Office of Education, and the CCAs MCE and PCE are all clients of TRP. CPA will be represented primarily by Jim Davenport, a TRP Partner with over 25 years of experience. Mr. Davenport will assist CPA in efforts to secure federal funding for CPA projects and programs, raising CPA’s federal profile, and monitoring and engaging in federal legislation as needed.
Energy Prepay Bond Transactions
Following the successful issuance by the California Community Choice Financing Authority of a third energy prepay bond for the benefit of CPA, staff is making preparations to market a fourth prepay bond later this month. The Royal Bank of Canada will be both the underwriter and fund recipient of this upcoming bond, which will be issued depending on market conditions. CPA’s first three energy prepay bond transactions will save CPA over $25 million per year on renewable energy costs for the next several years. A summary of the three prepay bonds issued to date is included as Attachment 1.
Monthly Financial Performance
In July 2024 CPA recorded a gain in net position of $2.8 million, substantially better than a budgeted decrease of $12 million for the month. Energy revenues were higher than forecast due to higher-than-average temperatures in the month, while energy costs were lower than budgeted primarily due to non-utilization of contingencies. CPA’s financial 1 Bill competitiveness is a function of CPA generation rates vs. SCE generation rates, the level of the PCIA, and SCE’s delivery rate, which all customers pay.
Agenda Page 219
Board of Directors Management Report
performance also benefitted from operating expenses that were 30% below budget and gains in interest income. The monthly financial dashboard for July is included as Attachment 2.
CPA is completing its annual independent audit of FY 2023/24. Auditors will meet with the Finance Committee at its Regular Meeting on October 30. The Board will receive a presentation at the November 7 Board meeting on audit findings and full year financial results.
Customer Participation Rate and Opt Actions
As of September 24, 2024, CPA’s overall participation rate was 93%, unchanged from the previous month. CPA had 1,043,387 active customers on this date, down one customer compared to the end of August. Opt-outs for the month – 852 accounts through the end of September – was down from previous months but still higher than typical for summer months in past years. Opt-outs are likely driven by higher-than-expected monthly bills following an SCE rate increase in June. New accounts (“move-ins”) were higher than closed accounts (“move-outs”) by 24 customers in September. Participation rates and active accounts by jurisdiction are provided in Attachment 3 of this report.
Customer Service Center Performance
Incoming calls to CPA’s Customer Service Center were down in September, consistent with a drop-off in customer account activity. Through the end of September, CPA received 3,742 calls in the month compared to 5,302 calls in August and an average of 4,186 calls per month in the quarter. Call center performance improved, with 93% of calls answered within 45 seconds compared to 87% in the previous month and an average wait time of 13 seconds, an improvement from 22 seconds in the previous month.
Contracts and Amendments Executed Under the CEO Authority A list of amendments to, and terminations of, Long-Term Power Purchase Agreements and Energy Storage Agreements executed under the CEO’s signing authority since July 2024 is provided in Attachment 4. A list of non-energy contracts executed under the CEO’s signing authority is provided in Attachment 5. This list includes all open contracts as well as all contracts, open or completed, executed in the past 12 months.
Agenda Page 220
Board of Directors Management Report
ATTACHMENTS
1. Summary of CPA Energy Prepay Bonds
2. Monthly Financial Dashboard
3. Participation Rates by Jurisdiction
4. Long Term PPA/ESA Amendments Executed under CEO’s Authority
5. Non-Energy Contracts Executed under CEO’s Authority
Agenda Page 221
Summary of CPA Prepay Transactions
CPA has completed three prepayment transactions to-date, securing $184M of energy cost savings over the 2023-2032 period
Transaction
Closing Date
Bond Par
Amount ($M)
Initial
Period
(years)
Total Cumulative
Initial Period
Savings ($M)
Annual Initial
Period Savings
($M)
Prepay 1
(CCCFA Series 2023C) 02/23/23 $999 7.6 $58.7 $7.7
Prepay 2
(CCCFA Series 2023D) 06/15/23 $958 5 $32.4 $6.0
Prepay 3
(CCCFA Series 2024B) 08/27/24 $1,524 8 $93.0 $11.6
Total $184.0 $25.3
CPA has received Board authorization to complete up to two additional prepayment transactions of up to $1.5 billion each
Agenda Page 222
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 represents the difference between revenues and expenditures before interest income and expense, and capital expenditures
Non-Operating Income: interest income arising from deposits and investments net of borrowing costs and fees Investments: liquid and high-quality securities with maturities of 91 days or more Cash and Cash Equivalents: Includes bank deposits and high quality and liquid securities with maturities of less than 90 days Year to date (YTD): Represents the fiscal period beginning July 1, 2024 YTD
July
2024
Financial Dashboard
Note: Numbers may not sum up due to rounding.
Active Accounts
1,043,767
Participation Rate
93.1%
YTD Sales Volume
1,106 GWh
July Volume
1,106 GWh
Agr/Oth
2% Com-Lg
20%
Com-Sm
28%
Res
50%
July Year-to-Date
in $000,000's Actual Budget Variance % Actual Budget Variance % Energy Revenues 175.9 171.1 4.8 3% 175.9 171.1 4.8 3%
Cost of Energy 171.0 179.1 -8.1 -5% 171.0 179.1 -8.1 -5% Net Energy Revenue 4.9 -8.0 12.9 4.9 -8.0 12.9
Operating Expenses 3.5 5.0 -1.5 -30% 3.5 5.0 -1.5 -30%
Operating Income 1.4 -13.0 14.4 1.4 -13.0 14.4
Non-Operating Income 1.4 0.9 0.5 52% 1.4 0.9 0.5 52%
Change in Net Position 2.8 -12.0 14.9 2.8 -12.0 14.9
In July 2024 CPA increased its net position by $2.8 million, $14.9 million higher than the budgeted decrease in the net position of $12 million.
July 2024 revenues were $175.9 million, $4.8 million or 3% higher than FY 2024/25 budget due to higher than normal temperatures in July. July cost of energy was $171 million, $8.1 million or 5% lower than the FY 2024/25 budget primarily due to the non-utilization of contingencies. Operating costs were 30% below budget due to lower than budgeted spending on general and administrative expenses, customer programs and other services, and the non-utilization of contingencies.
As of July 31st, 2024, CPA had unrestricted cash, cash equivalents, and investments of $373 million, and $159.853 million available in its bank line of credit representing 149 Days Liquidity on Hand. CPA is financially sound and in compliance with its bank and other credit covenants.
Agenda Page 223
Preferred Energy Option Participation %
100% Green 92.9%
Clean 94.2%
Lean 91.8%
Total 93.0%
OVERALL CUSTOMER STATUS REPORT
PARTICIPATION BY CITY AND COUNTY
September 24, 2024
Preferred Energy Option Active Accounts Participation % Lean % Clean % 100% Green % Agoura Hills 100% Green 8,023 89.5% 3.2% 0.4% 96.4%
Alhambra 100% Green 34,197 95.2% 2.0% 0.7% 97.3%
Arcadia Lean 22,676 95.2% 99.8% 0.1% 0.2%
Beverly Hills 100% Green 18,636 97.3% 2.1% 0.1% 97.8%
Calabasas 100% Green 9,650 93.4% 3.1% 0.3% 96.6%
Camarillo 100% Green 28,624 89.6% 1.9% 0.1% 97.9%
Carson Clean 29,475 95.9% 1.5% 98.3% 0.2%
Claremont 100% Green 12,693 91.0% 3.3% 0.3% 96.5%
Culver City 100% Green 19,196 94.8% 4.1% 1.2% 94.7%
Downey Clean 36,859 94.9% 1.7% 98.2% 0.1%
Hawaiian Gardens Clean 3,653 95.4% 1.3% 98.4% 0.3%
Hawthorne 100% Green 28,500 97.1% 0.8% 1.3% 97.8%
Hermosa Beach 100% Green 9,802 93.1% 2.7% 0.6% 96.7%
Los Angeles County 100% Green 299,395 94.4% 2.3% 32.0% 65.7% Malibu 100% Green 7,022 94.7% 3.0% 0.4% 96.5%
Manhattan Beach 100% Green 15,340 95.6% 3.1% 0.3% 96.6% Monrovia 100% Green 15,701 91.5% 3.8% 0.5% 95.7%
Moorpark Clean 11,405 85.5% 3.3% 96.2% 0.6%
Ojai 100% Green 3,489 89.0% 6.5% 1.2% 92.3%
Oxnard 100% Green 55,797 92.8% 4.0% 0.8% 95.2%
Paramount Clean 15,800 96.7% 0.3% 99.1% 0.6%
Redondo Beach 100% Green 33,300 96.0% 2.4% 0.1% 97.5%
Rolling Hills Estates 100% Green 3,530 92.0% 7.9% 1.7% 90.4% Santa Monica 100% Green 55,239 94.4% 3.5% 0.8% 95.8%
Santa Paula 100% Green 8,966 91.2% 2.2% 0.3% 97.6%
Sierra Madre 100% Green 4,938 91.8% 5.8% 1.5% 92.7%
Simi Valley Lean 43,569 89.4% 99.6% 0.1% 0.2%
South Pasadena 100% Green 11,597 94.7% 3.9% 0.7% 95.4%
Temple City Lean 12,668 95.6% 99.8% 0.1% 0.2%
Thousand Oaks 100% Green 44,470 83.6% 8.1% 1.5% 90.4%
Ventura 100% Green 44,606 89.2% 4.8% 1.5% 93.7%
Ventura County 100% Green 32,917 84.6% 6.8% 1.1% 92.0%
West Hollywood 100% Green 26,560 96.8% 2.6% 0.4% 97.0%
Westlake Village Lean 3,728 88.2% 99.5% 0.0% 0.5%
Whittier Clean 31,366 93.9% 2.0% 97.8% 0.2%
Total 1,043,387 93.0%
Energy Option Active Accounts Participation %
100% Green 705,585 67.6%
Clean 226,023 21.7%
Lean 111,779 10.7%
Total 1,043,387 100.0%
OVERALL PARTICIPATION BY ENERGY OPTION
Agenda Page 224
Project Purpose Month Notes
Desert Sands I
Amendment to Power Purchase Agreement to facilitate the transfer of the site to a backup facility contemplated in the contract, Key Energy Storage, and allow for a delay in COD in return for a price decrease September
2024
Wilmington 2
Amendment to Power Purchase Agreement to allow for additional payments of liquidated damages to extend the COD
September
2024
Dominquez
Amendment to Power Purchase Agreement to allow for additional payments of liquidated damages to extend the COD
September
2024
Desert Sands II
Amendment to a Letter Agreement to the Energy Storage Agreement to extend the termination deadline while parties identify mutually beneficial solutions
August
2024
Workman Mill
Termination of the Power Purchase Agreement for failure of Seller to meet contractual deadlines
July 2024
Dinuba Biomass
Termination of the Power Purchase Agreement for failure of Seller to meet contractual deadlines
July 2024
Drifter
Amendment to Energy Storage Agreement to extend the termination deadline while parties identify mutually beneficial solutions July 2024
Long-Term Energy Contracts Administrative Amendments, Letter Agreements and Terminations Executed Under Chief Executive Officer's Authority
Agenda Page 225
Vendor Purpose Month NTE Amount Status Notes
Thorn Run Partners LLC Federal lobbying services Sep-24 $125,000 Active Sigman Computing Analytics platform Sep-24 $30,800 Active JustFOIA PRA request management software Sep-24 $9,835 Active Salesforce Additional license for CRM
subscritpion Sep-24 $3,733 Active
Helpmates HR temporary staffing services Aug-24 $24,000 Active Workable HR recruitiung paltform subscrption Aug-24 $14,028 Active DataCamp Training subscription for Data &
Systems team Aug-24 $1,200 Active
TRC Amendment to PSA for reach code
technical consulting Aug-24 $43,000 Active
Salesforce Stakeholder relationship management
application subscription Aug-24 $15,300 Active Renewal
Abbott, Stringham & Lynch Data security complaince services Jul-24 $18,500 Active Mellady Direct Marketing Print and mailing services Jul-24 $0 Active PSA end date extension only
to contract approved by the
Board of Directors on 9/3/21
ProductOfLA Interactive renewable energy model Jul-24 $30,000 Active LinkedIn LinkedIn Learning subscription Jul-24 $16,150 Active Hall Energy Law PC Energy procurement counsel Jul-24 $125,000 Active Renewal Burke, Williams, Sorenson, LLP
Legal Services Agreement (Brown Act,
public entity governance issues, and
other legal services)
Jul-24 $100,000 Active Renewal
Elite Edge Financial reporting services Jul-24 $93,600 Active Renewal SAESHE, Inc. Street teams support services Jun-24 $60,000 Active Snowflake Data cloud services Jun-24 $25,000 Active
Lazar Translating & Interpreting Translation services Jun-24 $50,000 Active Great Place to Work Institute Staff survey & certification platform May-24 $3,495 Active Abbot, Stringham & Lynch Power Source Disclosure audit services Apr-24 $56,400 Active Adapt2
Settlements Software PSA amendment
(updating payment dates only) Apr-24 $0 Active
Langan GIS services (end date extension only) Mar-24 $0 Closed Viridis Consulting Customer Programs support services Feb-24 $0 Closed PSA end date extension only to
contract approved by the Board
of Directors on 9/7/23
First Principle Advisory IRP consulting services Feb-24 $50,000 Active Sagon Phior Social media creative services Feb-24 $50,000 Closed Posit Software Resource adequacy software Jan-24 $15,745 Active Salesforce Tableau subscription Jan-24 $6,499 Active
Ironclad Contract management platform
updates
Jan-24 $11,886 Active
Jackson Lewis PC Legal services (employment law) Jan-24 $65,000 Active Verve Cloud Internet service Jan-24 $20,988 Active
Wrike Project management software Jan-24 $9,024 Active
Ironclad Contract management platform Jan-24 $41,750 Active Practising Law Institute Legal continuing education Jan-24 $13,940 Active Pinnacle Advocacy Renewal and amendment to lobbying
services agreement
Jan-24 $76,652 Active
Omni Government Relations Renewal and amendment to lobbying services agreement
Jan-24 $102,492 Active
SAESHE, Inc. Outreach support services Jan-24 $25,500 Closed Non-Energy Contracts Executed Under Chief Executive Officer Authority Rolling 12 months. Open contracts shown in bold.
Agenda Page 226
Wellable Employee wellness platform Jan-24 $10,975 Active Electric & Gas Industries
Association
Battery storage incentive rebate
processing and program management
Jan-24 $110,000 Active
San Gabriel Valley COG Outreach & engagement services Dec-23 $15,000 Active Spirit Media Video production services Dec-23 $20,000 Closed Intelligence Press Natural gas data subscription Dec-23 $6,500 Active S&P Global Economic & demographic data
subscription
Dec-23 $15,000 Active
Joanalyn Moyle Minute writing services Dec-23 $15,000 Active Chapman and Cutler Legal services for prepay transaction Nov-23 $40,000 Active Place and Page Graphic design services Nov-23 $12,000 Closed Jorgensen HR HR consulting services Nov-23 $1,500 Active Language Line Translation services Nov-23 $24,000 Closed Energy Exemplar Additional license for forecasting
software
Nov-23 $9,720 Active
Cathleen Murillo Minute writing services Nov-23 $15,000 Active Meltwater Media intelligence services Nov-23 $22,000 Active Crown Castle Fiber LLC
Office dedicated internet access
service
Nov-23 $18,600 Active
Windstream Services, LLC Office telephone service Sep-23 $12,924 Active SBCCOG Satellite Board meeting venue Jan-23 $50/hr Active Agenda Page 227