6.4 Severability.
Exhibit T - 10
In case any provision in or obligation under this Consent shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
6.5 Amendment, Waiver.
Neither this Consent nor any of the terms hereof may (a) be terminated, amended, supplemented or modified, except by an instrument in writing signed by OCPA, Project Company and Collateral Agent or (b) waived, except by an instrument in writing signed by the waiving Party.
6.6 Termination.
Each Party’s obligations hereunder are absolute and unconditional, and no Party has any right, and shall have no right, to terminate this Consent or to be released, relieved or discharged from any obligation or liability hereunder until OCPA has been notified by Collateral Agent that all of the obligations under the Financing Documents shall have been satisfied in full (other than contingent indemnification obligations) or, with respect to the PPA or any Replacement PPA, its obligations under such PPA or Replacement PPA have been fully performed.
6.7 Successors and Assigns.
This Consent shall be binding upon each Party and its successors and assigns permitted under and in accordance with this Consent, and shall inure to the benefit of the other Parties and their respective successors and assignee permitted under and in accordance with this Consent. Each reference to a Person herein shall include such Person’s successors and assigns permitted under and in accordance with this Consent.
6.8 Further Assurances.
OCPA hereby agrees to execute and deliver all such instruments and take all such action as may be necessary to effectuate fully the purposes of this Consent.
6.9 Waiver of Trial by Jury.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE PARTIES HEREBY
IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY MATTER ARISING HEREUNDER. EACH PARTY FURTHER
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
6.10 Entire Agreement.
This Consent and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict Exhibit T - 11
between the terms, conditions and provisions of this Consent and any such agreement, document or instrument, the terms, conditions and provisions of this Consent shall prevail.
6.11 Effective Date.
This Consent shall be deemed effective as of the date upon which the last Party executes this Consent.
6.12 Counterparts; Electronic Signatures.
This Consent may be executed in one or more counterparts, each of which will be deemed to be an original of this Consent and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Consent and of signature pages by facsimile transmission, Portable Document Format (i.e., PDF), or by other electronic means shall constitute effective execution and delivery of this Consent as to the Parties and may be used in lieu of the original Consent for all purposes.
[Remainder of Page Left Intentionally Blank.]
Exhibit T - 12
IN WITNESS WHEREOF, the Parties hereto have caused this Consent to be duly executed and delivered by their duly authorized officers on the dates indicated below their respective signatures.
Grace Orchard Energy Center, LLC
a Delaware limited liability company.
ORANGE COUNTY POWER
AUTHORITY,
a California joint powers authority.
By:
[Name]
[Title]
Date:
By:
[Name]
[Title]
Date:
[NAME OF COLLATERAL AGENT],
[Legal Status of Collateral Agent].
By:
[Name]
[Title]
Date:
Exhibit T - 13
SCHEDULE A
[Describe any disclosures relevant to representations and warranties made in Section 3.4] Exhibit U - 1
EXHIBIT U
CAISO CHARGE CODES
The following table sets forth an initial allocation of Charge Codes, which may represent credits (expressed as a negative amount) as well as charges (expressed as a positive amount), between Buyer and Seller as they exist as of the Effective Date. The Parties shall mutually agree upon a final allocation in the Net Buyer CAISO Settlements Protocol. With respect to Ancillary Services, Seller’s liability in the associated Charge Codes shall be limited to items within Seller’s control, including but not limited to Forced Outage and compliance with ramp rates on file with CAISO.
For the avoidance of doubt, any penalties due solely to decreases or increases in solar irradiance shall be for the account of Buyer; penalties due to overlapping causes including decreases or increasesin solar irradiance and factors within Seller’s control shall be for the account of the Seller.
Charge
Code
Charge Code Description PPA Section Net Buyer
CAISO
Settlements
Net Seller
CAISO
Settlements
701 Forecasting Service Fee 4.3(i) Included Excluded
1487 Emergency Energy Exchange Program Neutrality
Adjustment
4.3(e)(i)(B) Excluded1 Included1
1591 EP Penalty Charge due CAISO Trustee 4.3(e)(i)(B)
or 4.3(e)(ii),
as applicable
Excluded or
Included2
Included or
Excluded2
1592 EP Penalty Allocation Payment 4.3(e)(ii) Included Excluded 4515 GMC Bid Transaction Fee 4.3(e)(ii) Included Excluded 4560 GMC Market Services Charge 4.3(e)(ii) Included Excluded 4561 GMC System Operations Charge 4.3(e)(ii) Included Excluded 4575 GMC – Scheduling Coordinator Identification Charge 4.3(e)(ii) Included Excluded 6011 Day Ahead Energy, Congestion, Loss Settlement 4.3(e)(ii) Included Excluded 6100 Day Ahead Spinning Reserve Capacity Settlement 4.3(e)(ii) Included Excluded 6124 No Pay Spinning Reserve Settlement 4.3(e)(i)(B) Excluded3 Included3 6170 Real Time Spinning Reserve Capacity Settlement 4.3(e)(ii) Included Excluded 6200 Day Ahead Non-Spinning Reserve Capacity
Settlement
4.3(e)(ii) Included Excluded
6224 No Pay Non-Spinning Reserve Settlement 4.3(e)(i)(B) Excluded3 Included3 6270 Real Time Non-Spinning Reserve Capacity Settlement 4.3(e)(ii) Included Excluded 6460 FMM Instructed Imbalance Energy 4.3(e)(ii) Included Excluded 6470 Real Time Instructed Imbalance Energy Settlement 4.3(e)(ii) Included Excluded 6475 Real Time Uninstructed Imbalance Energy Settlement 4.3(e)(ii) Included4 Excluded4 6482 Real Time Excess Cost for Instructed Energy
Settlement
4.3(e)(ii) Included Excluded
6486 Real Time Excess Cost for Instructed Energy
Allocation
4.3(e)(i)(B) Excluded1 Included1
6488 Exceptional Dispatch Uplift Settlement 4.3(e)(ii) Included Excluded 6500 Day Ahead Regulation Up Capacity Settlement 4.3(e)(ii) Included Excluded 6524 Non Compliance Regulation Up Settlement 4.3(e)(i)(B) Excluded3 Included3 6570 Real Time Regulation Up Capacity Settlement 4.3(e)(ii) Included Excluded 6600 Day Ahead Regulation Down Capacity Settlement 4.3(e)(ii) Included Excluded Exhibit U - 2
6620 RUC and RTM Bid Cost Recovery Settlement 4.3(e)(ii) Included Excluded 6624 Non Compliance Regulation Down Settlement 4.3(e)(i)(B) Excluded3 Included3 6630 IFM Bid Cost Recovery Settlement 4.3(e)(ii) Included Excluded 6636 IFM Bid Cost Recovery Tier 1 Allocation 4.3(e)(ii) Included Excluded 6670 Real Time Regulation Down Capacity Settlement 4.3(e)(ii) Included Excluded 6800 Day Ahead Residual Unit Commitment (RUC)
Availability Settlement
4.3(e)(ii) Included Excluded
6824 No Pay Residual Unit Commitment (RUC) Settlement 4.3(e)(i)(B) Excluded3 Included3 7070 Flexible Ramp Forecast Movement Settlement 4.3(e)(ii) Included Excluded 7071 Daily Flexible Ramp Up Uncertainty Capacity
Settlement
4.3(e)(ii) Included Excluded
7077 Daily Flexible Ramp Up Uncertainty Award
Allocation
4.3(e)(i)(B) Excluded1 Included1
7078 Monthly Flexible Ramp Up Uncertainty Award
Allocation
4.3(e)(i)(B) Excluded1 Included1
7081 Daily Flexible Ramp Down Uncertainty Capacity
Settlement
4.3(e)(ii) Included Excluded
7087 Daily Flexible Ramp Down Uncertainty Award
Allocation
4.3(e)(i)(B) Excluded1 Included1
7088 Monthly Flexible Ramp Down Uncertainty Award
Allocation
4.3(e)(i)(B) Excluded1 Included1
7251 Regulation Up Mileage Payment 4.3(e)(ii) Included Excluded 7261 Regulation Down Mileage Payment 4.3(e)(ii) Included Excluded 7891 Monthly CPM Settlement 4.3(e)(ii) Included Excluded 7989 Invoice Deviation Interest Distribution 4.3(e)(ii) Included Excluded 7999 Invoice Deviation Interest Allocation 4.3(e)(ii) Included Excluded 8526 GIP Forfeited Deposit Allocation 4.3(e)(ii) Included Excluded 8830 Monthly Resource Adequacy Availability Incentive
Mechanism Settlement
3.6(c)
Excluded
Included
8831 Monthly Resource Adequacy Availability Incentive
Mechanism Allocation
3.6(c) Excluded Included
1 Seller’s liability shall be limited to items within Seller’s control, including but not limited to Forced Outage and compliance with ramp rates on file with CAISO, pursuant to Section
4.3(e)(i)(B). Any allocation related solely to decreases or increases in solar irradiance shall be for the account of Buyer; allocation due to overlapping causes including both decreases or increases in solar irradiance and factors within Seller’s control shall be for the account of the Seller.
2 Responsibility for the penalty should be assigned to the accountable Party. 3 Non-compliance and no-pay charges related to Ancillary Service awards shall be limited to items with Seller’s control, including but not limited to Force Outage and compliance with ramp rate on file with CAISO, pursuant to Section 4.3(e)(i)(B). Any charges related solely to decreases or increases in solar irradiance shall be for the account of Buyer; charges due to overlapping causes including both decreases or increases in solar irradiance and factors within Seller’s control shall be for the account of the Seller.
4 Responsibility of the Buyer per Section 4.3(e)(ii), subject to relevant crediting per Section 4.3(f).
ORANGE COUNTY POWER AUTHORITY
Staff Report – Item 10.4
-------------------------------------------------------------------------------------------------------------------- To: Orange County Power Authority Board of Directors
From: Tiffany Law, Chief Financial Officer
Subject: FISCAL YEAR 2023/2024 BUDGET FRAMEWORK
Date: April 19, 2023
--------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
Receive and File.
DISCUSSION
Staff will present the Fiscal Year 2023/2024 Budget Framework. This will include an overview of the general principles governing the budget of the Orange County Power Authority (OCPA), as well as a timeline for the preparation and adoption of the OCPA's Fiscal Year 2023/2024 budget.
FISCAL IMPACT
None
ATTACHMENTS
None
ORANGE COUNTY POWER AUTHORITY
Staff Report – Item 10.5
--------------------------------------------------------------------------------------------------------------------- To: Orange County Power Authority Board of Directors
From: Tiffany Law, Chief Financial Officer
Subject: CREATION OF BUDGET AND FINANCE AD-HOC COMMITTEE FOR DEVELOPMENT OF FY2023/24 BUDGET AND 5-YEAR PROJECTION
Date: April 19, 2023
---------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
Establish a temporary ad-hoc advisory committee related to development of FY2023/24 Budget and 5-Year Projection and appoint less than a majority of Board members to the committee.
BACKGROUND
From time to time, Board members are needed to engage with Staff on a variety of issues. This ensures that staff implements the Board’s goals and objectives. An Ad Hoc Committee is defined as a committee gathered to address a particular issue, task, or objective and is dissolved upon completion of the purpose. These are not Brown Act bodies.
It is requested that the Board create a temporary ad-hoc advisory committee to work with staff on development of the FY2023/24 Budget and 5-Year Projection.
FISCAL IMPACT
There is no fiscal impact.
ATTACHMENT
None.
ORANGE COUNTY POWER AUTHORITY
Staff Report – Item 10.6
--------------------------------------------------------------------------------------------------------------------- To: Orange County Power Authority Board of Directors
From: Brian Probolsky, Chief Executive Officer
Subject: WEIGHTED VOTING UNDER THE JOINT POWERS AGREEMENT Date: April 19, 2023
---------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
Discuss weighted voting under the OCPA Joint Powers Agreement and, if desired by the Board, potential alternative approaches.
BACKGROUND
Under OCPA’s Joint Powers Agreement, weighted voting allows Directors to vote in accordance with the proportion of electricity use by users within their respective jurisdictions. This type of voting can be invoked by two or more Directors in limited circumstances, such as when there is a tie vote by the Board for Directors or to immediately nullify an action that was passed by an “equal vote” of the Board.
Weighted voting is governed by Section 3.9.3 of the Joint Powers Agreement. This section provided a formula for the first two years of OCPA’s existence (during which time OCPA was beginning operations and not serving load directly) and provides a separate formula following the second anniversary of OCPA (which is based on actual electrical use served by OCPA to accounts within each member’s jurisdiction). The exhibits for weighted voting are required to be updated each year no later than March 1 based on prior calendar year numbers.
At its February 15, 2023 meeting, the Board of Directors voted to update the exhibits for weighted voting in accordance with the strict language of the Joint Powers Agreement. As part of the approved motion, the Board provided direction for staff to return at the April meeting to discuss potential amendments to the weighted voting provisions of the Joint Powers Agreement.
Existing Language
The existing language of Section 3.9.3 is as follows:
3.9.3 Voting Shares Formula. When a Voting Shares Vote is requested by two or more Directors, voting shares of each Director shall be determined by the following formula:
(Annual Energy Use/Total Annual Energy) x 100
For purposes of this formula (a) “Annual Energy Use” means (i) for the first two years following the Effective Date, the annual electricity usage, expressed in kilowatt hours (“kWh”), within the jurisdiction of the Party appointing the Director(s) and (ii) following the second anniversary of the Effective Date, the annual electricity usage, expressed in kWh, of accounts within the jurisdiction of the Party appointing the Director(s) that are served by the Authority, and (b) “Total Annual Energy” means the sum of all Parties’ Annual Energy Use. The initial values for Annual Energy use are designated in Exhibit B and the initial voting shares are designated in Exhibit C. Both Exhibit B and Exhibit C shall be adjusted annually as soon as reasonably practicable after January 1 of each year, but no later than March 1 of each year, subject to the approval of the Board. Voting shares attributable to Irvine shall be divided equally between the Irvine Directors.
The aspect of Section 3.9.3 that was discussed at the February Board meeting is emphasized above.
Issues Raised Relating to Current Weighted Voting Calculations As discussed at the February Board meeting, the existing language of Section 3.9.3 raised two points of discussion:
1. Data reported by SCE can be delayed, as it was for 2022. Depending on whether SCE data continues to be delayed in future years, these data issues could affect OCPA’s ability to timely calculate weighted voting shares based on prior calendar year data within each member agency’s service area.
2. Now that more than two years have passed since OCPA was created, the now-effective weighted voting language has an adverse impact on the weighted voting of new members, as the calculation is based on actual electrical use by accounts served by OCPA. As there will be a period during which any new member is not actually being served by OCPA, a strict application of Section 3.9.3 results in new members having a 0% share for weighted votes. This means that new members would have a vote during regular “equal votes” of the Board, but would have a 0% voting share during weighted votes.
Potential Alternative Approaches to Weighted Voting
In February, OCPA staff reached out to various other community choice energy (CCE) joint powers agencies and requested information on how their weighting votes were calculated. OCPA received a small number of responses with varying alternative approaches, summarized below:
Alternative #1: Use Actual Load for Existing Members, Projected Load for New Members Not Yet Receiving Service
This approach uses actual load within existing members’ jurisdictions who are receiving OCPA service, while using projected load within new members’ jurisdictions based on the most recent annual data from the IOU. This approach is currently used by MCE Clean Energy.
Alternative #2: Use Previous Fiscal Year’s Percentage of Load for Each Member This approach uses the agency’s end-of-fiscal-year load for each member. This approach addresses potential issues with IOU data lag, but could still adversely affect new members not yet receiving CCE service. This approach is currently used by Clean Power Alliance, which updates its weighted voting shares each September based on the previous fiscal year.
Alternative #3: Eliminate Weighted Voting
At least one CCE joint powers agency (Pioneer Community Energy) has eliminated weighted voting provisions in its joint powers agreement.
FISCAL IMPACT
There is no fiscal impact.
ATTACHMENT
N/A
ORANGE COUNTY POWER AUTHORITY
Staff Report – Item 10.7
-------------------------------------------------------------------------------------------------------------------- To: Orange County Power Authority Board of Directors
From: Joe Mosca, Director of Communications and External Affairs Subject: COMMUNITY ADVISORY COMMITTEE UPDATE
Date: April 19, 2023
--------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
Receive and file.
BACKGROUND
The Community Advisory Committee (CAC) met on Monday, April 17, 2023. Staff or a member of the CAC will provide an update on the schedule of the CAC and other topics discussed by the CAC.
FISCAL IMPACT
None
ATTACHMENT
None