Please provide the expected metered energy in Pacific Prevailing Time. For the Daylight Savings Day in March, the HE3 volume should be 0 MWh. For the Daylight Savings Day in November, the HE2 volume should represent two hours of generation.
Date Datetime (Hour
Beginning)
Hour Ending MWh
1/1/2022 1/1/2022 0:00 1
1/1/2022 1/1/2022 1:00 2
1/1/2022 1/1/2022 2:00 3
1/1/2022 1/1/2022 3:00 4
1/1/2022 1/1/2022 4:00 5
1/1/2022 1/1/2022 5:00 6
[insert additional rows] … …
12/31/2022 12/31/2022 18:00 19
12/31/2022 12/31/2022 19:00 20
12/31/2022 12/31/2022 20:00 21
12/31/2022 12/31/2022 21:00 22
12/31/2022 12/31/2022 22:00 23
12/31/2022 12/31/2022 23:00 24
309
Exhibit L2 - 1
EXHIBIT L - 2
Monthly Expected Available Capacity
The following table is provided for informational purposes only. Please adjust the table for the appropriate number of days in the month for each month of the year.
Monthly Forecast of Available Capacity (MW)
c 0:0
0 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
Day 1 Day 2 Day 3 Day 4 Day 5 [insert additional rows] Day 26 Day 27 310
Exhibit L2 - 2
c 0:0
0 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
Day 28 Day 29* Day 30* Day 31*
*Include these rows if needed for each month.
311
Exhibit L3 - 1
EXHIBIT L - 3
Monthly Expected Delivered Energy
The following table is provided for informational purposes only. Please adjust the table for the appropriate number of days in the month for each month of the year.
Monthly Forecast of Delivered Energy (MWh)
0:00 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 Day 1 Day 2 Day 3 Day 4 Day 5 [insert additional rows] 312
Exhibit L3 - 2
0:00 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 Day 26 Day 27 Day 28 Day 29* Day 30* Day 31* *Include these rows if needed for each month.
313
Item No. 16
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DATE: October 21, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: Majority Present
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Jan Pepper, Chief Executive Officer
Sara Maatta, Senior Renewable Energy and Compliance Analyst SUBJECT: Approve Resolution Delegating Authority to Chief Executive Officer to Execute Power Purchase and Sale Agreement for Renewable Supply with Snow Mountain Hydro LLC, and any necessary
ancillary documents with a Power Delivery Term of 15 years starting on January 1, 2024, in an amount not to exceed $13 million.
RECOMMENDATION:
Approve Resolution Delegating Authority to Chief Executive Officer to Execute Power Purchase Agreement for Renewable Supply with Snow Mountain Hydro LLC, and any necessary ancillary documents with a Power Delivery Term of 15 years starting on January 1, 2024, in an amount not to exceed $13 million.
BACKGROUND:
The Board set a goal for Peninsula Clean Energy to procure 100% of its energy supply from renewable energy by 2025, and to align that renewable supply with customer demand on a 24x7 basis. Furthermore, in December 2017 the Board approved Peninsula Clean Energy’s Strategic 2018 Integrated Resource Plan, which outlines procurement targets for Peninsula Clean Energy to build a diverse, low-cost power portfolio. Peninsula Clean Energy Staff have conducted an analysis of potential resources to help us meet our 24x7 renewable energy and procurement diversity goals. 2021 Renewable Request for Offers
Peninsula Clean Energy launched a request for offers (RFO) in late-2021 targeting procurement of renewable energy and energy storage resources to satisfy regulatory procurement mandates and contribute toward its 24/7 100% renewable goal. Additionally, the RFO sought long-term contracts which provide better value than short-term contracts and expand the amount of renewable energy serving California. 314
Item No. 16
Peninsula Clean Energy received a robust response to the RFO from 43 participants for 70 different projects for renewable, renewable plus storage, and standalone storage. Staff evaluated these projects based on value to Peninsula Clean Energy, development status, project viability, project team experience, compliance with workforce policy and environmental impact.
Staff conducted extensive analysis to identify the top projects to shortlist. The Burney Creek Hydro Project (Project) offered by Snow Mountain Hydro LLC (SMH) was identified as a beneficial project to help us meet our 24x7 renewable energy goals in Staff’s analysis. Furthermore, the Project contributes towards Peninsula Clean Energy’s procurement diversity targets. The Project would be the fifth small hydroelectric project to be added to Peninsula Clean Energy’s supply portfolio.
Staff reviewed shortlisted projects with the CEO and then entered into exclusive negotiations with the shortlisted projects. Throughout 2022, Peninsula Clean Energy has worked with the project owner on negotiating the power contract.
Additionally, staff met with the Procurement Board subcommittee in October 2022 to review the shortlisted projects from the RFO including the Burney Creek project.
Per Peninsula Clean Energy’s Policy 15 Energy Supply Procurement Authority1, any power procurement contracts greater than 5 years must be approved by the Board of Directors.
Overview of Project
Project Name Burney Creek Hydro Project
Technology Small Hydroelectric
Project Capacity 3 MW
Delivery Commencement Date 1/1/2024
Owner Snow Mountain Hydro LLC
Location Shasta County, CA
The project is an existing 3 MW small hydroelectric facility located near the town of Burney, CA in eastern Shasta County. The Delivery Commencement Date is January 1, 2024. The project is expected to deliver enough energy to meet approximately 0.2% of Peninsula Clean Energy’s energy needs and will provide Portfolio Content Category (PCC) 1 energy to meet Peninsula Clean Energy’s RPS requirements.
The project is an existing run-of-river project that is non-consumptive of water, as all of the water that is used for electric generation is returned to Burney Creek. Minimum bypass flows are maintained to ensure no significant negative environmental impacts.
The water is diverted without the use of a weir.
1 Full policy is available here: https://www.peninsulacleanenergy.com/wp-content/uploads/2020/01/PCE-Policy-15-Revised-01-23-20-Procurement-Authority-FINAL.pdf 315
Item No. 16
Under the contract, Peninsula Clean Energy will pay for the output at a fixed-price rate per MWh with no escalation, for the full term of the contract (15 years). Peninsula Clean Energy is entitled to all product attributes from the facility, including energy, renewable energy, ancillary services, and resource adequacy.
Owner
The project is owned by SMH, an Idaho limited liability company. SMH is owned by Ida-West Energy Company (IWE) and the Public Employee Retirement System of Idaho (PERSI). IWE manages the Project, along with four other small run-of-river hydro projects in California. IWE and its affiliate companies have developed, owned and operated small hydro projects in the US since 1989. IWE has extensive expertise in operating and optimizing hydropower generation.
Environmental Review
Peninsula Clean Energy staff worked with several environmental non-profits to develop a system for evaluating the environmental impact of projects. Specifically, we asked each bidder to provide a geospatial footprint of their project. During the evaluation period, staff studied the geospatial footprint of the project to evaluate whether the project is located in a restricted or high conflict area for renewable energy development. These areas include but are not limited to:
• Protected areas at the federal, state, regional, local level (e.g. County-designated conservation areas, BLM Areas of Critical Environmental Concern, critical habitat for listed species, national, state, county parks, etc.). • Identified and mapped important habitat and habitat linkages, especially for threatened and endangered species (either state or federally listed).
Further, projects that are located in areas designated for renewable energy development or in areas that are not suitable for other developmental activities, such as EPA re-power sites, receive positive environmental scores.
For this project, the analysis showed that the project was not located in a protected area based on the USGS Protected Areas Database2 (PAD-US). The project is inspected from time to time by Federal Energy Regulatory Commission representatives to ensure compliance with environmental requirements, and has been found to be in compliance in all recent inspections.
Workforce Requirements
The Project is an existing project. The Project is relatively small and does not require a full-time, on-site operator, but the Project does provide some local jobs and some local 2 USGS PAD-US: https://www.usgs.gov/core-science-systems/science-analytics-and-synthesis/gap/science/protected-areas 316
Item No. 16
purchases in the Burney and Redding areas. Workers and suppliers are sourced primarily in the local Shasta County area and the Redding area.
DISCUSSION:
The Strategic Plan approved by the Board in 2020 set Peninsula Clean Energy’s Priority One to “design a power portfolio that is sourced by 100% renewable energy by 2025 that aligns supply and consumer demand on a 24x7 basis”.
This project will help Peninsula Clean Energy meet its customers’ large renewable energy demand, while maintaining competitiveness. To date, Peninsula Clean Energy has entered into fourteen long-term renewable contracts, which make up approximately 65% of overall load, as shown in the table below:
Long-Term Renewable Contracts Contributing to Peninsula Clean Energy’s Load Project RE
MW Status Commercial
Operation Date
Term
(Yrs) County
Approx.
% of
Load
Served
in 2025
Wright Solar 200 Operating January-2020 25 Merced 14.7% Mustang 2 Solar 100 Operating November-2020 15 King 7.9% Chaparral Solar 102 Development December-2023 15 Kern 8.1% Arica Solar 100 Development April-2024 15 Riverside 8.3% Gonzaga Ridge Wind
Farm 76.35 Development December-2024 15 Merced 4.9%
Geysers Geothermal 35 Operating July-2022 10
Sonoma &
Lake 8.4%
Second Imperial
Geothermal 26 Development January-2023 15 Imperial 5.8% Sky River Wind 30 Operating September-2021 20 Kern 3.1% Ormat Geothermal
(CC Power Project)
11.39 (min) Development
Project Specific,
no earlier than
June-2024 20 CA and NV 2.4%
Fish Lake Geothermal
(CC Power Project) 2.3 Development 6/1/2024 20
Esmeralda,
NV 0.5%
Hatchet Small Hydro 7.5 Operating March-2017 20 Shasta 0.5% Bidwell Small Hydro 2 Operating March-2017 17 Shasta 0.3% Roaring Small Hydro 2 Operating March-2017 17 Shasta 0.2% Clover Small Hydro 1 Operating April-2018 15 Shasta 0.1% Total Contracted 65.0%
Burney Small Hydro 3 Operating January-2024 15 Shasta 0.2% Total With Pending 65.2%
The Burney Creek Hydro Project is a 3 MW renewable generating resource, covering an additional 0.2% of Peninsula Clean Energy’s overall demand. This contract will enable Peninsula Clean Energy to come closer to reaching its internal goal to be 100% renewable on an annual basis and provide 24x7 renewable energy, as well as its regulatory obligations under SB 100 and SB 350, which requires that 65% of Renewables Portfolio Standard (RPS)-compliance related renewable energy supply be sourced from long-term contracts beginning in the 2021-2024 compliance period. 317
Item No. 16
FISCAL IMPACT:
The financial impact of adding this project to Peninsula Clean Energy’s portfolio of supply resources is net neutral in expected supply costs. The fiscal impact of the project will not exceed $13 million over the 15-year term of the Agreement.
STRATEGIC PLAN:
The project supports the following objectives in Peninsula Clean Energy’s strategic plan:
• Priority 1: Design a power portfolio that is sourced by 100% renewable energy by 2025 that aligns supply and consumer demand on a 24/7 basis • Power Resources Goal 1: Secure sufficient, low-cost, clean sources of electricity that achieve Peninsula Clean Energy's priorities while ensuring reliability and meeting regulatory mandates
ATTACHMENTS:
Burney Creek Hydro Renewable Power Purchase Agreement (Redacted Version) 318
RESOLUTION NO. _____________
PENINSULA CLEAN ENERGY AUTHORITY, COUNTY OF SAN MATEO, STATE OF
CALIFORNIA
* * * * * *
RESOLUTION DELEGATING AUTHORITY TO CHIEF EXECUTIVE OFFICER TO
EXECUTE POWER PURCHASE AND SALE AGREEMENT FOR RENEWABLE
SUPPLY WITH SNOW MOUNTAIN HYDRO LLC, AND ANY NECESSARY
ANCILLARY DOCUMENTS WITH A POWER DELIVERY TERM OF 15 YEARS BEGINNING ON JANUARY 1, 2024, IN AN AMOUNT NOT TO EXCEED $13 MILLION. ______________________________________________________________ RESOLVED, by the Peninsula Clean Energy Authority of the County of San Mateo, State of California, that
WHEREAS, the Peninsula Clean Energy Authority (“Peninsula Clean Energy”) was formed on February 29, 2016; and
WHEREAS, launch of service for Phase I occurred in October 2016, and launch of service for Phase II occurred in April 2017; and
WHEREAS, Peninsula Clean Energy is purchasing energy, renewable energy, carbon-free energy, and related products and services (the “Products”) to supply its customers; and
WHEREAS, consistent with its mission of reducing greenhouse gas emissions by expanding access to sustainable and affordable energy solutions, Peninsula Clean Energy seeks to execute a Power Purchase and Sale Agreement with Snow Mountain 319
Hydro LLC (Contractor), to procure 3 MW of power generation from the project, based on Contractor’s desirable offering of products, pricing, and terms; and WHEREAS, the project will contribute toward the Board’s goal for Peninsula Clean Energy to procure 100% of its energy supply from renewable energy by providing renewable generation for a term of fifteen years starting on January 1, 2024; and WHEREAS, staff is presenting to the Board for its review the Power Purchase and Sale Agreement, reference to which should be made for further particulars; and WHEREAS, the Board wishes to delegate to the Chief Executive Officer authority to execute the Agreement and any other ancillary documents required for said purchase of power from the Contractor.
WHEREAS, the Board’s decision to delegate to the Chief Executive Officer the authority to execute the Agreements is contingent on the Snow Mountain Hydro, LLC Board approving the Agreements’ terms consistent with those presented to the Board.
NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED that the Board delegates authority to the Chief Executive Officer to:
Execute the Agreement and any ancillary documents with the Contractor with terms consistent with those presented, in a form approved by the General Counsel; and for a power delivery term of up to fifteen years, in an amount not to exceed $13 million. * * * * * *
320
Execution Version
POWER PURCHASE AND SALE AGREEMENT
COVER SHEET
Seller: Snow Mountain Hydro, an Idaho limited liability company Buyer: Peninsula Clean Energy Authority, a California joint powers authority Description of Facility: A 3.447 MW hydroelectric generating facility with 3.0 MW maximum output located in Shasta County, California.
Guaranteed Delivery Commencement Date: January 1, 2024
Delivery Term: Fifteen (15) Contract Years
Guaranteed Capacity: 3.0 MW at the Delivery Point
Delivery Term Expected Energy:
Contract Year Expected Energy (MWh)
All
Peak Energy: (Based on the sum of individual historical peak monthly output in MWh) Contract Year Peak Energy (MWh)
All
Monthly Expected Energy:
1 Month Expected Energy (MWh) Peak Energy (MWh)
January
1 This table reflects Seller’s Expected Energy by calendar month in the first Contract Year, as if the first Contract Year begins on January first. The first Contract Year may begin on another date, per the terms of this Agreement. 321
Month Expected Energy (MWh) Peak Energy (MWh)
February
March
April
May
June
July
August
September
October
November
December
Contract Price:
Contract Year Contract Price ($/MWh)
All
Product:
x Energy
x Green Attributes: Portfolio Content Category 1
x Future Environmental Attributes
x Capacity Attributes
Deliverability:
Energy Only Status
322
X Full Capacity Deliverability Status
Scheduling Coordinator: Buyer or Buyer’s Agent
Pre-Delivery Term Security:
Performance Security:
Damage Payment:
Notice Addresses:
Seller:
Company Name: Snow Mountain Hydro, LLC
Address: c/o Ida-West Energy Company
Delivery: PO Box 7867, Boise, ID 83707
Street: 205 N 10th Str, STE 510, Boise, ID 83702
Attention: Doug Dockter
Phone No.:208-388-2987
Email: [email protected]
With a copy to:
Company Name: Ida-West Energy Company
Address: PO Box 70, Boise, ID 83707
Attn: Ida-West Energy Co General Counsel
Phone No.:
Email:
Scheduling:
Company Name: Snow Mountain Hydro, LLC
Address: PO Box 7867, Boise, ID 83707
Attention: David Gray
Phone No.: 208-388-5360
Email: [email protected]
Invoices and Payments:
Company Name; Snow Mountain Hydro, LLC
Address: PO Box 7867, Boise, ID 83707
323
Attention: Alyson Heyer
Phone No.: 208-388-5533
Email: [email protected]
Buyer:
Peninsula Clean Energy Authority
2075 Woodside Road
Redwood City, CA 94061
ATTN: Director of Power Resources
Phone No.: 650-260-0005
Email: [email protected]
With a copy to:
Peninsula Clean Energy Authority
400 County Center, 6th Floor
Redwood City, CA 94063
Attention: David Silberman, General Counsel
Fax No.: (650) 363-4034
Phone No.: (650) 363-4749
Email: [email protected]
[Signatures on following page.]
324
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
SELLER
Snow Mountain Hydro, LLC
By:
Name: Douglas J. Dockter
Title: President, Ida-West Acquisition Co.
The administrative agent for Snow
Mountain Hydro, LLC___________
BUYER
Peninsula Clean Energy Authority
By:
PCE Executive Officer
325
TABLE OF CONTENTS
Page
i
ARTICLE 1 DEFINITIONS ......................................................................................................... 1
1.1 Contract Definitions ................................................................................................ 1
1.2 Rules of Interpretation .......................................................................................... 17 ARTICLE 2 TERM; CONDITIONS PRECEDENT................................................................... 19
2.1 Contract Term ....................................................................................................... 19
2.2 Conditions Precedent ............................................................................................ 19
2.3 Delay in Achieving Delivery Commencement ..................................................... 20 ARTICLE 3 PURCHASE AND SALE ....................................................................................... 21
3.1 Sale of Product ...................................................................................................... 21
3.2 Sale of Green Attributes ........................................................................................ 21
3.3 Compensation ....................................................................................................... 21
3.4 Imbalance Energy ................................................................................................. 21
3.5 Ownership of Renewable Energy Incentives ........................................................ 22
3.6 Future Environmental Attributes .......................................................................... 22
3.7 Changes to Interconnection Capacity. .................................................................. 23
3.8 Capacity Attributes ............................................................................................... 23
3.9 Resource Adequacy Failure .................................................................................. 23
3.10 CEC Final Certification and Verification ............................................................. 24
3.11 Eligibility .............................................................................................................. 24
3.12 California Renewables Portfolio Standard ............................................................ 24
3.13 Compliance Expenditure Cap ............................................................................... 24 ARTICLE 4 OBLIGATIONS AND DELIVERIES .................................................................... 25
4.1 Delivery................................................................................................................. 25
4.2 Title and Risk of Loss ........................................................................................... 26
4.3 Scheduling Coordinator Responsibilities .............................................................. 26
4.4 Forecasting ............................................................................................................ 28
4.5 Dispatch Down/Curtailment ................................................................................. 29
4.6 Reduction in Delivery Obligation ......................................................................... 30
4.7 Expected Energy ................................................................................................... 31
4.8 WREGIS ............................................................................................................... 31
4.9 Financial Statements. ............................................................................................ 32
4.10 Access to Data and Installation and Maintenance of Weather Station ................. 32
4.11 Ancillary Services ................................................................................................. 34
4.12 Workforce Agreement .......................................................................................... 34
4.13 Shared Facilities .................................................................................................... 34 ARTICLE 5 TAXES ................................................................................................................... 35
5.1 Allocation of Taxes and Charges .......................................................................... 35
5.2 Cooperation ........................................................................................................... 35 326
ii
ARTICLE 6 MAINTENANCE OF THE FACILITY ................................................................. 35
6.1 Maintenance of the Facility .................................................................................. 35
6.2 Maintenance of Health and Safety. ....................................................................... 36
6.3 Permits and Approvals .......................................................................................... 36
6.4 Energy to Serve Station Use ................................................................................. 36 ARTICLE 7 METERING ............................................................................................................ 37
7.1 Metering ................................................................................................................ 37
7.2 Meter Verification ................................................................................................. 37 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ............................................................. 37
8.1 Invoicing ............................................................................................................... 37
8.2 Payment................................................................................................................. 38
8.3 Books and Records ............................................................................................... 38
8.4 Payment Adjustments; Billing Errors ................................................................... 38
8.5 Billing Disputes .................................................................................................... 38
8.6 Netting of Payments .............................................................................................. 39
8.7 Seller’s Pre-Delivery Term Security ..................................................................... 39
8.8 Seller’s Performance Security ............................................................................... 39
8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ................. 40 ARTICLE 9 NOTICES ............................................................................................................... 40
9.1 Addresses for the Delivery of Notices .................................................................. 40
9.2 Acceptable Means of Delivering Notice ............................................................... 40 ARTICLE 10 FORCE MAJEURE .............................................................................................. 41
10.1 Definition .............................................................................................................. 41
10.2 No Liability If a Force Majeure Event Occurs ..................................................... 42
10.3 Notice .................................................................................................................... 42
10.4 Termination Following Force Majeure Event ....................................................... 42 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ...................................................... 42
11.1 Events of Default .................................................................................................. 42
11.2 Remedies; Declaration of Early Termination Date ............................................... 45
11.3 Termination Payment ............................................................................................ 46
11.4 Notice of Payment of Termination Payment ........................................................ 46
11.5 Disputes With Respect to Termination Payment .................................................. 47
11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date ............................................................. 47
11.7 Rights And Remedies Are Cumulative ................................................................. 47
11.8 Mitigation .............................................................................................................. 47 327
iii
ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES. ........ 47
12.1 No Consequential Damages .................................................................................. 47
12.2 Waiver and Exclusion of Other Damages ............................................................. 48 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY ........................... 49
13.1 Seller’s Representations and Warranties .............................................................. 49
13.2 Buyer’s Representations and Warranties .............................................................. 49
13.3 General Covenants ................................................................................................ 50
13.4 Prohibition Against Forced Labor ........................................................................ 51 ARTICLE 14 ASSIGNMENT..................................................................................................... 51
14.1 General Prohibition on Assignments .................................................................... 51
14.2 Permitted Assignment; Change of Control of Seller ............................................ 51
14.3 Permitted Assignment; Change of Control of Buyer ............................................ 51 ARTICLE 15 LENDER ACCOMMODATIONS ....................................................................... 52
15.1 Granting of Lender Interest ................................................................................... 52
15.2 Rights of Lender ................................................................................................... 52
15.3 Cure Rights of Lender ........................................................................................... 52 ARTICLE 16 DISPUTE RESOLUTION .................................................................................... 53
16.1 Governing Law ..................................................................................................... 53
16.2 Dispute Resolution ................................................................................................ 53
16.3 Attorneys’ Fees ..................................................................................................... 53 ARTICLE 17 INDEMNIFICATION .......................................................................................... 53
17.1 Indemnification ..................................................................................................... 53
17.2 Claims ................................................................................................................... 54 ARTICLE 18 INSURANCE ....................................................................................................... 54
18.1 Insurance ............................................................................................................... 54 ARTICLE 19 CONFIDENTIAL INFORMATION .................................................................... 54
19.1 Definition of Confidential Information ................................................................. 54
19.2 Duty to Maintain Confidentiality .......................................................................... 55
19.3 Irreparable Injury; Remedies ................................................................................ 55
19.4 Disclosure to Lender ............................................................................................. 55
19.5 Disclosure to Credit Rating Agency ..................................................................... 55
19.6 Public Statements .................................................................................................. 56 ARTICLE 20 MISCELLANEOUS ............................................................................................. 56
20.1 Entire Agreement; Integration; Exhibits ............................................................... 56 328
iv
20.2 Amendments ......................................................................................................... 56
20.3 No Waiver ............................................................................................................. 56
20.4 No Agency, Partnership, Joint Venture or Lease .................................................. 56
20.5 Severability ........................................................................................................... 56
20.6 Mobile-Sierra ........................................................................................................ 56
20.7 Counterparts .......................................................................................................... 57
20.8 Facsimile or Electronic Delivery .......................................................................... 57
20.9 Binding Effect ....................................................................................................... 57
20.10 No Recourse to Members of Buyer ...................................................................... 57
20.11 Change in Electric Market Design ........................................................................ 57 Exhibits:
Exhibit A Description of Facility
Exhibit B Emergency Contact Information
Exhibit C Form of Delivery Commencement Date Certificate Exhibit D Form of Letter of Credit
Exhibit E Insurance
Exhibit F Form of Replacement RA Notice
Exhibit G Annual Energy Forecast and Monthly Expected Available Capacity and Metered Energy
329
330
331
3 “Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce generation from the Facility by the amount, and for the period of time set forth in such order, for reasons unrelated to a Scheduled Maintenance, Forced Facility Outage, Force Majeure Event and/or Curtailment Order, which instruction may be communicated to Seller in writing by electronic notice or other commercially reasonable means. “Buyer Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation from the Facility pursuant to a (i) Buyer Bid Curtailment or (ii) Buyer Curtailment Order.
“Buyer Default” means a failure by Buyer to perform its obligations hereunder. “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 Approved Meter” means a CAISO approved revenue quality meter or meters, 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 less Electrical Losses and Station Use, in accordance with the CAISO Tariff.
“CAISO Charges Invoice” has the meaning set forth in Section 4.3(d). “CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Operating Order” means the “operating order” defined in Section 37.2.1.1 of the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by 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) 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 any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can generate and/or deliver to the CAISO Grid at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits. Capacity Attributes shall also 332
4 include all rights to provide and all benefits related to the provision of Ancillary Services (as defined in the CAISO Tariff) and reactive power.
“CEC” means the California Energy Commission or its successor agency. “CEC Final Certification and Verification” means that the CEC has certified the Facility as an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard, meeting all applicable requirements for certified facilities set forth in the RPS Eligibility Guidebook, Ninth Edition (or its successor), and that all Energy generated by the Facility qualifies as generation from an Eligible Renewable Energy Resource. “Change of Control”, in the case of Seller, means any circumstance in which either of Seller’s Ultimate Parents ceases to own, directly or indirectly through one or more intermediate entities, fifty percent (50%) of the outstanding equity interests in Seller; provided that in calculating ownership percentages for all purposes of the foregoing:
(a) any ownership interest in Seller held by an Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards the Ultimate Parent’s ownership interest in Seller unless the Ultimate Parent directly or indirectly owns more than 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.
Notwithstanding the foregoing, (a) so long as the Ultimate Parents Control Persons owning at least 300 MW of operating renewable electricity generating projects, a change in the Control of an Ultimate Parent, or (b) a change in the Control of Seller resulting from the exercise by Lender of its remedies under its financing agreements for the Facility with Seller or an Affiliate of Seller shall not be a Change of Control hereunder; provided that the entity acquiring Control of an Ultimate Parent or of Seller, directly or indirectly, is a Qualified Transferee and Buyer is given written notice of the Change of Control within five (5) Business Days of its occurrence. “Compliance Actions” has the meaning set forth in Section 3.13. “Compliance Expenditure Cap” has the meaning set forth in Section 3.13. “Confidential Information” has the meaning set forth in Section 19.1. “Contract Price” has the meaning set forth in the Cover Sheet. “Contract Term” has the meaning set forth in Section 2.1. “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Delivery Commencement Date, and each subsequent Contract Year shall commence on the anniversary of the Delivery Commencement Date. 333
5 “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 more than 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 more than 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.
“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 this 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.
“CPM Soft Offer Cap” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission, or successor entity. “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, in either case by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply. “Curtailment Order” means any of the following:
a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, to curtail Energy deliveries for any reason other than a Buyer Bid Curtailment;
b) a curtailment ordered by the Participating Transmission Owner or distribution operator (if the Facility is interconnected to distribution or sub-transmission system) 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, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s or distribution operator’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected; c) a curtailment ordered by the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Energy to the Delivery Point; or
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6 d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Participating Transmission Owner or distribution operator.
For the avoidance of doubt, if Buyer or Buyer’s SC submitted a Self-Schedule and/or an Energy Supply Bid in its final CAISO market participation in respect of a given time period that clears, in full, the applicable CAISO market for the full amount of Energy forecasted to be produced from the Facility for such time period, any notice from the CAISO having the effect of requiring a reduction during the same time period is a Curtailment Order, not a Buyer Bid Curtailment.
“Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation from the Facility pursuant to a Curtailment Order.
“Damage Payment” means a liquidated damages payment in the amount indicated in the Cover Sheet.
“Day-Ahead LMP” means the LMP for the Day-Ahead Market. “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 amount of Energy, expressed in MWh that the Facility would have produced and delivered to the Delivery Point, but that is not produced by the Facility and delivered to the Delivery Point during a Buyer Curtailment Period. The amount shall be calculated as the difference between (a) the product of (i) the lesser of (A) the arithmetic average of the Facility’s metered output rate, in MW, for the twenty-four (24) hour periods immediately before and after such Curtailment Period or other applicable event, or (B) the Guaranteed Capacity, multiplied by (ii) the duration of such Curtailment Period or other applicable event, less (b) the amount of Metered Energy delivered to the Delivery Point during the Curtailment Period or other applicable event, if any; provided that, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0).
“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 Liquidated Damages” means an amount equal to
“Delivery Commencement” means that Seller has fulfilled all of the conditions set forth in Section 2.2 and has begun delivering Product to the Delivery Point pursuant to this Agreement. “Delivery Commencement Date” means the date on which Seller actually delivers Product to the Delivery Point.
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8 “FMM Schedule” has the meaning set forth in the CAISO Tariff. “Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility or any outage on the Transmission System that prevents Seller from making power available at the Delivery Point and that is not the result of a Force Majeure Event. “Forced Labor” has the meaning set forth in Section 13.4. “Forward Certificate Transfers” has the meaning set forth in the WREGIS Operating Rules.
“Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Full Network Model” has the meaning set forth in the CAISO Tariff. “Future Environmental Attributes” shall mean any and all emissions, air quality or other environmental attributes (other than Green Attributes or Renewable Energy Incentives) 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) that are attributable, now, or in the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) production tax credits associated with the construction or operation of the Facility and 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, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. “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., NP-15), all of which should be calculated for the remaining Contract Term, and includes the value of Green Attributes and Capacity Attributes.
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9 “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; provided, however, that “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, 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; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) production tax credits associated with the construction or operation of the Facility and 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, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. If the Facility is a biomass or landfill gas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility.
“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-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 3.5, updated December 15, 2020, as may be further amended from time to time. “Guaranteed Capacity” means 3.0 MW AC capacity measured at the Delivery Point. 338
10 “Guaranteed Delivery Commencement Date” is the date set forth on the Cover Sheet, upon which Seller shall begin delivering Product to the Delivery Point pursuant to this Agreement. “Guaranteed RA Amount” means the Qualifying Capacity of the Facility. “Imbalance Energy” means the amount of Energy, in any given Settlement Period or Settlement Interval, by which the amount of Metered Energy deviates from the amount of Scheduled Energy.
“Indemnified Party” has the meaning set forth in Section 17.1. “Indemnifying Party” has the meaning set forth in Section 17.1. “Initial Synchronization” means the initial delivery of Energy from the Facility to the interconnection point specified in the Interconnection Agreement. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Interconnection Agreement” means the interconnection agreement entered into by Seller pursuant to which the Facility will be interconnected with the 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 Transmission System (or PTO’s distribution system, as applicable) in accordance with the Interconnection Agreement. “Interest Rate” has the meaning set forth in Section 8.2. “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 February 29, 2016 under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“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, and includes the CAISO Tariff.
“Lender” means, collectively, (A) in the case of Seller, any Person (i) providing senior or subordinated construction, interim 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, 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 acting on their behalf, (ii) providing interest 339
11 rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations and/or (iii) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility, and (B) in the case of Buyer, any Person (i) providing senior or subordinated short-term or long-term debt or equity financing or refinancing for or in connection with the business or operations of Buyer, whether that financing or refinancing takes the form of private debt, equity, public debt or any other form, and any trustee or agent acting on their behalf, and/or (ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations. “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, in a form substantially similar to the letter of credit set forth in Exhibit D.
“Licensed Professional Engineer” means an independent, professional engineer (a) reasonably acceptable to Buyer, (b) who has been retained by, or for the benefit of, the Lenders, as their “independent engineer” for the purpose of financing the Facility, or (c) who (i) is licensed to practice engineering in the State of California, (ii) has training and experience in the power industry specific to the technology of the Facility, (iii) is licensed in an appropriate engineering discipline for the required certification being made, and (iv) unless otherwise approved by Buyer, 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.
“Local Capacity Area” has the meaning set forth in the CAISO Tariff. “Local Capacity Area Resource” has the meaning set forth in the CAISO Tariff. “Local Capacity Area Resource Adequacy Benefits” means the attributes, however defined, of a Local Capacity Area Resource that can be used to satisfy the local resource adequacy obligations of a load serving entity.
“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., NYMEX), 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.
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12 “Main Power Transformer” means the Facility’s main step-up transformer as depicted on the one-line diagram set forth in Exhibit A.
“Metered Energy” means the electric energy generated by the Facility, expressed in MWh, as recorded by the CAISO Approved Meter(s) and net of all Electrical Losses and Station Use.
“Moody’s” means Moody’s Investors Service, Inc., or its successor. “MW” means megawatts measured 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, whether in the Day-Ahead Market or Real-Time Market, the LMP is less than zero dollars ($0). “Negative LMP Costs” has the meaning set forth in Section 3.3(c). “Net Qualifying Capacity” or “NQC” has the meaning set forth in the CAISO Tariff. “Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Availability Charge” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. “Notice” shall, unless otherwise specified in this Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail). “Other Facility(ies)” means the electric generating or energy storage facility(ies), other than the Facility, utilizing any facilities shared with the Facility to enable delivery of energy from each such other generating or storage facility to the Delivery Point, together with all materials, equipment systems, structures, features and improvements necessary to produce electric energy at each such other generating or storage facility, but (i) with respect to the Shared Facilities, excluding Seller’s interests therein and (ii) excluding the real property on which each such other generating or storage facility is, or will be located, land rights and interests in land. “Participating Transmission Owner” or “PTO” means an entity that 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 where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is Pacific Gas and Electric Company.
“Party” has the meaning set forth in the Preamble.
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14 “Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “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 3.9(b). “RA Guarantee Date” means the Delivery Commencement Date. “RA Plan” has the meaning set forth for “Resource Adequacy Plan” in the CAISO Tariff. “RA Shortfall” means the difference, expressed in kW, of (i) the Guaranteed RA Amount minus (ii) the Resource Adequacy Benefits of the Facility for such month able to be shown on Buyer’s monthly or annual RA Plan to the CAISO and CPUC and counted as Resource Adequacy Benefits.
“RA Shortfall Month” means the applicable calendar month following the RA Guarantee Date during which Seller fails to provide Resource Adequacy Benefits in an amount equal to or greater than the Guaranteed RA Amount as required hereunder for purposes of calculating an RA Deficiency Amount under Section 3.9(b).
“RA Substitute Capacity” has the meaning set forth in the CAISO Tariff. “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Renewable Energy Credit” 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, provided 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 are not a Green Attribute or a Future Environmental Attribute.
“Replacement RA” means Resource Adequacy Benefits, if any, equivalent to those that would have been provided by the Facility with respect to the applicable month in which a RA Deficiency Amount is due to Buyer. Replacement RA shall (i) include, if applicable, Flexible Resource Adequacy Benefits that are of the same system or local designation, Flexible Capacity Category, and Resource Category as the Facility; (ii) be from a resource located in the same Transmission Access Charge Area (as described in the CAISO Tariff) as the Facility and, (iii) to the extent that the Facility would have qualified as a Local Capacity Area Resource for such month, be located in the same Local Capacity Area as the Facility. Replacement RA shall not be provided from any generating facility or unit that utilizes coal or coal materials as a source of fuel. 343
15 “Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 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, 19-10-021, and any subsequent CPUC ruling or decision or by any other entity including CAISO, and shall include System Resource Adequacy Benefits, Flexible Resource Adequacy Benefits and Local Capacity Area Resource Adequacy Benefits associated with the Facility. “Resource Category” means the maximum cumulative capacity and resource categories (commonly known as "MCC buckets") for system and local resource adequacy as well as categories of must-offer for flexible resource adequacy described in the most recent filing guide for system, local, and flexible resource adequacy compliance filings issued or published on the CPUC’s website by the CPUC or its staff specifying the guidelines, requirements, and instructions for load serving entities to demonstrate compliance with the CPUC’s resource adequacy program. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.) or its successor.
“Schedule” has the meaning set forth in the CAISO Tariff. “Scheduled Energy” means the Energy reflected in a final Day-Ahead Schedule, FMM Schedule, and/or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time.
“Scheduled Maintenance” has the meaning set forth in Section 6.1(a). “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.
“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). “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).
“Settlement Interval” has the meaning set forth in the CAISO Tariff. 344
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17 “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. “Terminated Transaction” has the meaning set forth in Section 11.2. “Termination Payment” has the meaning set forth in Section 11.3. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Point.
“Ultimate Parent(s)” means each entity that Controls, directly or indirectly, Seller. As of the Effective Date, the Ultimate Parents are IDACORP, Inc. and Public Employee Retirement System of Idaho.
“WECC” means the Western Electricity Coordinating Council or its successor. “Week-Ahead Forecast” has the meaning set forth in Section 4.4(c). “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 January 4, 2021, 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:
(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; 346
18 (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that 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 term “including” means “including 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, and references to a LMP shall mean the LMP at the Delivery Point unless expressly provided otherwise;
(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 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.
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19 ARTICLE 2
TERM; CONDITIONS PRECEDENT
2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date 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”). (b) 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 19 shall remain in full force and effect for three (3) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for two (2) years following the termination of this Agreement.
2.2 Conditions Precedent. The Delivery Term shall not commence until Seller completes each of the following conditions:
(a) Seller shall have delivered to Buyer certificates from a Licensed Professional Engineer substantially in the form of Exhibit C; (b) A Participating Generator Agreement and a Meter Service Agreement between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(c) An Interconnection Agreement between Seller and the PTO shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement, including all modifications and amendments thereto, delivered to Buyer; (d) Authorization to parallel the Facility was obtained by the Participating Transmission Owner prior to the Delivery Commencement Date. (e) The Transmission Provider has provided documentation supporting full unrestricted release for Delivery Commencement by the Delivery Commencement Date. (f) The CAISO has provided notification supporting Delivery Commencement. (g) Buyer, or its designee, is the Scheduling Coordinator for the Facility; provided that if this requirement is not met because of Buyer’s (or its designee’s) actions or failure to take actions, and this is the only requirement for Delivery Commencement that has not been met, Seller shall be entitled to a day for day extension of the Guaranteed Delivery Commencement Date for such Buyer (or its designee) actions or failure to act. (h) Seller shall have delivered to Buyer a copy of all environmental impact reports, studies or assessments prepared by or obtained by Seller or its Affiliates, the conditional use permit or other principal land use approval for the Facility, and a certificate signed by an 348
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21 ARTICLE 3
PURCHASE AND SALE
3.1 Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller at the Contract Price, all of the Product produced by the Facility. Buyer shall re-sell all of the Energy purchased hereunder, and may, at its sole discretion, re-sell or use for another purpose all or a portion of the remainder of the Product, provided that such resale or use for another purpose will not relieve Buyer of any of its obligations under this Agreement. Except for Deemed Delivered Energy, Buyer has no obligation to pay Seller for any Product that is not delivered to the Delivery Point as a result of any circumstance, including, an outage of the Facility, a Force Majeure Event, or a Curtailment Order. In no event shall Seller have the right to procure any element of the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement, except with respect to Replacement RA.
3.2 Sale of Green Attributes. Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all of the Green Attributes produced by the Facility during the Delivery Term.
3.3 Compensation. Buyer shall compensate Seller for the Product in accordance with this Section 3.3.
(a) Buyer shall pay Seller the Contract Price for each MWh of Product, as measured by the amount of Metered Energy that qualifies as PCC1 and is delivered to the Delivery Point, plus Deemed Delivered Energy, if any, up to one hundred fifteen percent (115%) of for such Contract Year.
(b) If, at any point in any Contract Year, the amount of Metered Energy plus the amount of Deemed Delivered Energy exceeds one hundred fifteen percent (115%) of for such Contract Year, for each additional MWh of Product, as measured by the amount of Metered Energy plus Deemed Delivered Energy, if any, delivered to Buyer in such Contract Year, the price to be paid shall be the lesser of (i) seventy-five percent (75%) of the Contract Price or (ii) the Day-Ahead LMP for the applicable Settlement Interval. If, at any point in any Contract Year, the amount of Metered Energy delivered to the Delivery Point plus the amount of Deemed Delivered Energy exceeds one hundred and twenty percent (120%) of for such Contract Year, no payment shall be owed by Buyer for any additional Metered Energy or Deemed Delivered Energy.
(c) If during any Settlement Interval, Seller delivers Product in amounts, as measured by the amount of Metered Energy, in excess of the product of the Guaranteed Capacity and the duration of the Settlement Interval, 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 the number of such Excess MWh (“Negative LMP Costs”).
3.4 Imbalance Energy.
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22 (a) Buyer and Seller recognize that from time to time the amount of Metered Energy will deviate from the amount of Scheduled Energy. Buyer and Seller shall cooperate to minimize charges and imbalances associated with Imbalance Energy to the extent possible.
Subject to Section 3.4(b), to the extent there are such deviations, any CAISO costs or revenues assessed as a result of such Imbalance Energy shall be solely for the account of Buyer. (b) If Seller is not in compliance with any applicable provisions of this Agreement, including Section 4.4(d), or if Imbalance Energy results from any outage or reduction in the availability of the Facility that is not communicated to Buyer at least one hour prior to the deadline to submit Schedules to CAISO, then Seller will be responsible for and shall pay directly or promptly reimburse Buyer (and Buyer may offset amounts owed to Seller) for the aggregate Imbalance Energy charges assessed, net of the aggregate Imbalance Energy revenues earned, during such period of noncompliance and reasonably attributable to such noncompliance within the applicable Contract Year. At Buyer’s request, Seller will cooperate with Buyer to develop a written administrative protocol to effectuate the Parties’ agreement with respect to Imbalance Energy and scheduling.
3.5 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.
3.6 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Buyer shall have the right to obtain such Future Environmental Attributes without any adjustment to the Contract Price paid by Buyer under this Agreement. Subject to Section 3.13, Seller shall take all reasonable actions necessary to realize the full value of such Future Environmental Attributes for the benefit of Buyer, and shall cooperate with Buyer in Buyer’s efforts to do the same.
(b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.6(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 incremental expenses incurred by Seller associated with providing such Future Environmental Attributes; provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.
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23 3.7 Changes to Interconnection Capacity. In the event that the Interconnection Agreement is modified or Seller otherwise obtains the ability to deliver Energy in excess of the Guaranteed Capacity under the Interconnection Agreement, the Parties shall amend this Agreement to increase the Guaranteed Capacity, provided that in no event shall the Guaranteed Capacity exceed 3.447 MW. Upon any such amendment, the Parties shall also amend (i) the Delivery Term Expected Energy, Peak Energy and monthly Expected Energy set forth on the Cover Sheet, and (ii) the Pre-Delivery Term Security, Performance Security, and Damage Payment on a pro-rata basis consistent with the increase in the Guaranteed Capacity.
3.8 Capacity Attributes. The Facility has been designated by the CAISO as having Full Capacity Deliverability Status.
(a) Subject to Section 3.13, Seller grants, pledges, assigns and otherwise commits to Buyer all of the Capacity Attributes from the Facility throughout the Delivery Term. (b) Subject to Section 3.13, Seller shall use commercially reasonable efforts to maintain eligibility for Full Capacity Deliverability Status for the Facility from the CAISO and shall perform all actions necessary to ensure that the Facility qualifies to provide Resource Adequacy Benefits to Seller. Throughout the Delivery Term subject to Section 3.13, Seller hereby covenants and agrees to transfer all Resource Adequacy Benefits to Buyer. (c) Subject to Section 3.13, Seller shall take all commercially reasonable actions, including complying with all applicable registration and reporting requirements, and execute any and all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement. (d) For the duration of the Delivery Term, Seller shall maintain interconnection capacity under its Interconnection Agreement of at least the amount of the Guaranteed Capacity plus the capacity of any Other Facilities that take interconnection service under its Interconnection Agreement, if any.
(e) If, as a result of Scheduled Maintenance or otherwise, CAISO requires RA Substitute Capacity in connection with Seller’s provision of Resource Adequacy Benefits to Buyer from the Facility, Seller shall provide such RA Substitute Capacity in accordance with applicable CAISO requirements. Seller acknowledges and agrees that any failure by Seller to provide such RA Substitute Capacity may result in CAISO rejecting or cancelling Scheduled Maintenance or other outage of the Facility. Buyer shall notify Seller within three (3) Business Days after becoming aware of an obligation by Seller to provide RA Substitute Capacity. Upon request by Seller, Buyer shall use commercially reasonable efforts to secure, on Seller’s behalf, RA Substitute Capacity; provided that Seller shall reimburse Buyer for all out-of-pocket costs, including broker and outside counsel costs, associated with such RA Substitute Capacity.
3.9 Resource Adequacy Failure.
(a) RA Deficiency Determination. Notwithstanding Seller’s obligations set forth in Section 4.3 or anything to the contrary herein, the Parties acknowledge and agree that if Seller has indicated that the Facility will have Full Capacity Deliverability Status on the Cover 352
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25 actions to comply with Seller’s obligations under the Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable), the items listed in Sections 3.13(a), (b), (c), and (d), then the Parties agree that the maximum amount of costs and expenses Seller shall be required to bear during the Delivery Term shall be capped at cumulatively during the Delivery
Term (“Compliance Expenditure Cap”):
(a) CEC Final Certification and Verification;
(b) Green Attributes;
(c) Future Environmental Attributes; and,
(d) Capacity Attributes.
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.”
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. 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 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 3.13 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, these Compliance Actions for the remainder of the Contract Term.
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 Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and reasonable documentation of such costs from Seller.
The term “commercially reasonable efforts” as used in Sections 3.11 and 4.8(h) means efforts consistent with and subject to this Section 3.13.
ARTICLE 4
OBLIGATIONS AND DELIVERIES
4.1 Delivery.
(a) Energy. Subject to the terms and conditions of this Agreement, Seller shall make available and Buyer shall accept at the Delivery Point all Metered Energy on an as-generated, 354
26 instantaneous basis. Each Party shall perform all obligations under this Agreement, including all generation, scheduling, and transmission services in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and (iii) Prudent Operating Practice. (b) Green Attributes. Seller hereby provides and conveys all Green Attributes associated with the Facility as part of the Product being delivered. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility. Upon request of Buyer, Seller shall submit a Green-e® Energy Tracking Attestation Form (“Attestation”) for Product delivered under this Agreement to the Center for Resource Solutions (“CRS”) at https://www.tfaforms.com/4652008 or its successor. The Attestation shall be submitted in accordance with the requirements of CRS and shall be submitted within thirty (30) days of Buyer’s request or the last day of the month in which the applicable Energy was generated, whichever is later.
4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Metered Energy shall pass and transfer from Seller to Buyer at the Delivery Point. (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 Scheduling Coordinator Responsibilities.
(a) Buyer as Scheduling Coordinator for the Facility. Upon the Delivery Commencement Date, Buyer shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of the Product at the Delivery Point. At least sixty (60) days prior to the Delivery Commencement Date, (i) Seller shall take all actions and execute and deliver to Buyer and the CAISO all documents necessary to authorize or designate Buyer as Seller’s Scheduling Coordinator for the Facility effective as of the initial synchronization of the Facility to the CAISO Grid, and (ii) Buyer shall, and shall cause its designee to, take all actions and execute and deliver to Seller and the CAISO all documents necessary to authorize or designate Buyer or its designee as the Scheduling Coordinator for the Facility effective as of the initial synchronization of the Facility to the CAISO Grid. On and after initial synchronization of the Facility to the CAISO Grid, Seller shall not authorize or designate any other party to act as Seller’s Scheduling Coordinator, nor shall Seller perform for its own benefit the duties of Scheduling Coordinator, and Seller shall not revoke Buyer’s authorization to act as Seller’s Scheduling Coordinator unless agreed to by Buyer. Buyer (as Seller’s SC) shall submit Schedules to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Product on a day-ahead, hour-ahead, fifteen-minute market or real time basis, as determined by Buyer. (b) Notices. Buyer (as Seller’s SC) shall provide Seller with access to a web based system through which Seller shall submit to Buyer and the CAISO all notices and updates 355
27 required under the CAISO Tariff regarding the Facility’s status, including, but not limited to, all outage requests, Forced Facility Outages, Forced Facility Outage reports, clearance requests, or must offer waiver forms. Seller will cooperate with Buyer to provide such notices and updates. If the web-based system is not available, Seller shall promptly submit such information to Buyer and the CAISO (in order of preference) telephonically, by electronic mail, or facsimile transmission to the personnel designated to receive such information.
(c) CAISO Costs and Revenues. Except as otherwise set forth below and in Section 3.4(b), Buyer (as Scheduling Coordinator for the Facility) shall be responsible for CAISO costs (including penalties, Imbalance Energy costs or revenues, and other charges) and shall be entitled to all CAISO revenues (including credits, Imbalance Energy revenues or costs, and other payments), including revenues associated with CAISO dispatches, 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 or fees resulting from any failure by Seller to abide by the CAISO Tariff or this Agreement (except to the extent such non-compliance is caused by Buyer’s failure to perform its duties as Scheduling Coordinator for the Facility). The Parties agree that any Availability Incentive Payments are for the benefit of the Seller and for Seller’s account and that any Non-Availability Charges are the responsibility of the 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, and any such sanctions or penalties are imposed upon the Facility or to Buyer as Scheduling Coordinator due to the actions or inactions of Seller, the cost of the sanctions or penalties shall be the Seller’s responsibility.
(d) CAISO Settlements. Buyer (as Seller’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility. Buyer shall render a separate invoice to Seller for any CAISO charges or penalties (“CAISO Charges Invoice”) for which Seller is responsible under this Agreement, including Section 3.4(b). CAISO Charges Invoices shall be rendered after settlement information becomes available from the CAISO that identifies any CAISO charges. Notwithstanding the foregoing, Seller acknowledges that the CAISO will issue additional invoices reflecting CAISO adjustments to such CAISO charges. Buyer will review, validate, and if requested by Seller under Section 4.3(e) below, dispute any charges that are the responsibility of Seller in a timely manner and consistent with Buyer’s existing settlement processes for charges that are Buyer’s responsibilities. Subject to Seller’s right to dispute and to have Buyer pursue the dispute of any such invoices, Seller shall pay the amount of CAISO Charges Invoices within ten (10) Business Days of Seller’s receipt of the CAISO Charges Invoice. If Seller fails to pay such CAISO Charges Invoice within that period, Buyer may net or offset any amounts owing to it for these CAISO Charges Invoices against any future amounts it may owe to Seller under this Agreement. The obligations under this section with respect to payment of CAISO Charges Invoices shall survive the expiration or termination of this Agreement. (e) Dispute Costs. Buyer (as Seller’s SC) may be required by Seller to dispute CAISO settlements in respect of the Facility. Seller agrees to pay Buyer’s costs and expenses (including reasonable attorneys’ fees) associated with its involvement with such CAISO disputes to the extent they relate to CAISO charges payable by Seller with respect to the Facility that Seller has directed Buyer to dispute.
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28 (f) Terminating Buyer’s Designation as Scheduling Coordinator. At least thirty (30) days prior to expiration of this Agreement or as soon as reasonably practicable upon an earlier termination of this Agreement, the Parties will take all actions necessary to terminate the designation of Buyer as Scheduling Coordinator for the Facility as of 11:59 p.m. on such expiration date.
(g) Master Data File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for this Facility consistent with this Agreement.
Neither Party shall change such data without the other Party’s prior written consent, not to be unreasonably withheld.
(h) NERC Reliability Standards. Buyer (as Scheduling Coordinator) shall cooperate reasonably with Seller to the extent necessary to enable Seller to comply, and for Seller to demonstrate Seller’s compliance with, NERC reliability standards. This cooperation shall include the provision of information in Buyer’s possession that Buyer (as Scheduling Coordinator) has provided to the CAISO related to the Facility or actions taken by Buyer (as Scheduling Coordinator) related to Seller’s compliance with NERC reliability standards.
4.4 Forecasting. Seller shall provide the forecasts described below. Seller’s Available Capacity forecasts shall include availability and updated status of key equipment for the Facility. Seller shall use commercially reasonable efforts to forecast the Available Capacity and expected Metered Energy of the Facility accurately and to transmit such information in a format reasonably acceptable to Buyer (or Buyer’s designee).
(a) Annual Forecast of Expected Metered Energy. No less than ninety (90) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of expected Metered Energy, by hour, for the following calendar year in the form attached hereto as Exhibit G-1 or as reasonably requested by Buyer. (b) Monthly Forecast of Available Capacity and Metered Energy. No less than thirty (30) days before the beginning of Delivery Commencement, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and Buyer’s designee (if applicable) a non-binding forecast of the hourly expected Available Capacity and expected Metered Energy, for each day of the following month in the forms attached hereto as Exhibits L-2 and L-3, respectively.
(c) Weekly Forecast of Available Capacity. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, Seller shall provide Buyer with a non-binding forecast of the Facility’s Available Capacity (or if requested by Buyer, the expected Metered Energy) for each day of the immediately succeeding week, and more frequently as requested (“Week-Ahead Forecast”). A Week-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include non-binding forecasts for the immediate day, each succeeding non-Business Day and the next Business Day. Each Week-Ahead Forecast shall clearly identify, 357
29 for each hour, Seller’s best estimate of the Facility’s Available Capacity (or if requested by Buyer, the expected Metered Energy).
(d) Real-Time Available Capacity. During the Delivery Term, Seller shall notify Buyer of any changes in Available Capacity of one (1) MW or more, whether due to Forced Facility Outage, Force Majeure or other cause, 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. If the Available Capacity changes by at least one (1) MW 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 Notices shall contain information regarding the beginning date and time of the event resulting in the change in Available Capacity or expected Metered Energy, the expected end date and time of such event, the expected Available Capacity in MW or Metered Energy in MWh, 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 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. These notices and changes to Available Capacity or expected Metered Energy shall be communicated in a method 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 4.4(d), then Seller shall send such communications by telephone and e-mail to Buyer.
4.5 Dispatch Down/Curtailment.
(a) General. Seller agrees to reduce the Facility’s generation by the amount and for the period set forth in any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment. Buyer has no obligation to purchase or pay for any Product delivered in violation of any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment, or for any Product that could not be delivered to the Delivery Point due to a Force Majeure Event. (b) Buyer Curtailment. Buyer shall have the right to order Seller to curtail deliveries of Energy from the Facility to the Delivery Point for reasons unrelated to Force Majeure Events or Curtailment Orders pursuant to a dispatch notice delivered to Seller, provided that Buyer shall pay Seller for all Deemed Delivered Energy associated with all Buyer Curtailment Periods at the applicable Contract Price.
(c) Failure to Comply. If Seller fails to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, then, for each MWh of Metered Energy that the Facility generated in contradiction to the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, Seller shall pay Buyer for each such MWh at an amount equal to the sum of (A) + (B) + (C), where: (A) is the amount, if any, paid to Seller by Buyer for delivery of such MWh and, (B) is an amount equal to the absolute value of the Negative LMP, if any, for the Buyer Curtailment Period or Curtailment Period, times the amount of MWh of Metered Energy that the 358
30 Facility generated in contradiction to the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, and (C) is any penalties or other charges resulting from Seller’s failure to comply with the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order. (d) Seller Equipment Required for Operating Instruction Communications.
Seller shall acquire, install, and maintain such facilities, communications links and other equipment, and implement such protocols and practices, as necessary to respond to and follow operating instructions from the CAISO and Buyer's SC, including an electronic signal conveying real time and intra-day instructions, to operate the Facility as directed by Buyer from time to time in accordance with this Agreement and/or a Governmental Authority, including to implement a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order in accordance with the methodologies applicable to the Facility and used to transmit such instructions. If at any time during the Delivery Term, Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with methodologies applicable to the Facility and directed by Buyer, Seller shall take the steps necessary to become compliant as soon as commercially reasonably possible. Seller shall promptly repair and replace as necessary such facilities, communication links or other equipment, and shall notify Buyer as soon as Seller discovers any defect. If Buyer notifies Seller of the need for maintenance, repair, or replacement of any such facilities, communication links or other equipment, Seller shall repair or replace such equipment as necessary within five (5) days of receipt of such Notice; provided that if Seller is unable to do so, then Seller shall make such repair or replacement as soon as reasonably practical. Seller shall be liable pursuant to Section 4.4(c) for failure to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, during the time that Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with applicable methodologies. A Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order communication via such systems and facilities shall have the same force and effect on Seller as any other form of communication.
4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Sections 3.1, 11.1(b)(iv), or 11.1(b)(v):
(a) Facility Maintenance. Seller shall be permitted to reduce deliveries of Product during any period of and to the extent required by Scheduled Maintenance on the Facility previously agreed to between Buyer and Seller.
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during and to the extent required by any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration and extent (if known) of any Forced Facility Outage. (c) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of and to the extent required by System Emergency, Buyer Curtailment Period, or upon Notice of a Curtailment Order, or pursuant to the terms of the Interconnection Agreement or applicable tariff. In the event of a System Emergency, anticipated System Emergency, or other event or circumstance in which CAISO determines that there is or may be an imminent need for Energy supplies on the CAISO Grid, Seller shall use 359
31 reasonable efforts to make the Product fully available, including by cancelling or deferring any Facility maintenance.
(d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during and to the extent required by any Force Majeure Event. (e) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.
4.7 Expected Energy. The quantity of Product, as measured by Metered Energy, that Seller expects to be able to deliver to Buyer during each Contract Year is set forth on the Cover Sheet (“Expected Energy”). Buyer acknowledges that Seller does not guarantee that the Facility will generate the Expected Energy in any Contract Year.
4.8 WREGIS. Seller shall, at its sole expense, but subject to Section 3.13, 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 Metered Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard 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, issuance, and transfer of such WREGIS Certificates to Buyer, and Buyer shall be given sole title to all such WREGIS Certificates. In addition:
(a) Prior to the Delivery Commencement Date, Seller shall ensure that the Facility is registered and has an established 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 “Forward 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 itself or its agent to be designated as the Qualified Reporting Entity for the Facility. Seller shall cause Forward 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 Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for 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 Metered Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment 360
32 for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred 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 Certificates upon payment to Seller in accordance with Section 8.2. (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates issued to Buyer for a calendar month as compared to the Metered Energy for the same calendar month (“Deficient Month”). If any WREGIS Certificate Deficit occurs, then the amount of Metered Energy in the Deficient Month shall be reduced by the amount of the WREGIS Certificate Deficit for purposes of calculating Buyer’s payment to Seller under Article 8; provided, however, that Buyer shall pay Seller for any Metered Energy that is Delivered by Buyer without corresponding WREGIS Certificates at a price equal to the lesser of (i) the Contract Price, or (ii) the Day-Ahead LMP. Without limiting Seller’s obligations under this Section 4.8, if a WREGIS Certificate Deficit is caused solely by an error or omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission. Seller shall use commercially reasonable efforts to rectify any WREGIS Certificate Deficit as expeditiously as possible.
(f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date, 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 Metered Energy in the same calendar month. (g) STC REC-2. 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. (h) STC REC-1. Transfer of Renewable Energy Credits. 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.
4.9 Financial Statements. Seller shall provide to Buyer, within 60 days of the end of Seller’s first, second, and third fiscal quarters, and within 120 days of the end of the Seller’s fiscal year, as applicable, unaudited quarterly and annual audited financial statements of the Seller (including a balance sheet and statements of income and cash flows), all prepared in accordance with generally accepted accounting principles in the United States, consistently applied.
4.10 Access to Data
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33 (a) Commencing on the Delivery Commencement Date, and continuing throughout the Delivery Term, Seller shall provide to Buyer, in a form reasonably acceptable to Buyer, the data set forth below on a real-time basis; provided that Seller shall agree to make and bear the cost of changes to any of the data delivery provisions below, as requested by Buyer, throughout the Delivery Term, which changes Buyer determines are necessary to forecast output from the Facility, and comply with Law:
(i) real time, read-only access to energy output information collected by the supervisory control and data acquisition (SCADA) system for the Facility; provided that if Buyer is unable to access the Facility’s SCADA system, then upon written request from Buyer, Seller shall provide energy output information to Buyer in 1 minute intervals in the form of a flat file to Buyer through a secure file transport protocol (FTP) system with an e-mail back up for each flat file submittal;
(ii) read-only access to the Facility’s CAISO revenue meter and all Facility meter data at the Site;
(iii) full, real-time access to the Facility’s Scheduling and Logging for the CAISO (OMS) client application, or its successor system; and (iv) net plant electrical output at the CAISO revenue meter.
For any month in which the above information and access was not available to Buyer for longer than twenty-four (24) continuous hours, Seller shall prepare and provide to Buyer upon Buyer’s request a report with the Facility’s monthly actual available capacity in a form reasonably acceptable to Buyer.
(b) Commencing on the Delivery Commencement Date, and continuing on a weekly basis throughout the Delivery Term, Seller shall provide to Buyer, in a form reasonably acceptable to Buyer, information concerning the availability of water to power the Facility.
(c) Seller shall maintain at least a minimum of one hundred twenty (120) days’ historical data for all data required pursuant to Section 4.10(a), which shall be available on a minimum time interval of one hour basis or an hourly average basis. Seller shall provide such data to Buyer within five (5) Business Days of Buyer’s request. (d) Installation, Maintenance and Repair.
(i) Seller, at its own expense, shall install and maintain a secure communication link in order to provide Buyer with access to the data required in Section 4.10(a) of this Agreement.
(ii) Seller shall maintain any telecommunications path, hardware, and software necessary to provide accurate data to Buyer or Buyer’s designee to enable Buyer to meet current CAISO scheduling requirements. Seller shall promptly repair and replace as necessary such telecommunications path, hardware and software and shall notify Buyer as soon 362
34 as Seller learns that any such telecommunications paths, hardware and software are providing faulty or incorrect data.
(iii) If Buyer notifies Seller of the need for maintenance, repair or replacement of the telecommunications path, hardware or software, Seller shall maintain, repair or replace such equipment as necessary within five (5) days of receipt of such Notice; provided that if Seller is unable to repair or replace such equipment within five (5) days, then Seller shall make such repair or replacement as soon as reasonably practical; provided further that Seller shall not be relieved from liability for any Imbalance Energy costs incurred under Section 3.4(b) during this additional period for repair or replacement.
(iv) For any occurrence in which Seller’s telecommunications system is not available or does not provide quality data and Buyer notifies Seller of the deficiency or Seller becomes aware of the occurrence, Seller shall transmit data to Buyer through any alternate means of verbal or written communication, including cellular communications from onsite personnel, facsimile, blackberry or equivalent mobile e-mail, or other method mutually agreed upon by the Parties, until the telecommunications link is re-established. (e) Seller agrees and acknowledges that Buyer may seek and obtain from third parties any information relevant to its duties as Scheduling Coordinator for Seller, including from the Participating Transmission Operator. Seller shall execute within a commercially reasonable timeframe upon request such instruments as are reasonable and necessary to enable Buyer to obtain from the Participating Transmission Operator information concerning Seller and the Facility that may be necessary or useful to Buyer in furtherance of Buyer’s duties as Scheduling Coordinator for the Facility.
(f) No later than ninety (90) days before the Delivery Commencement Date, Seller shall deliver to Buyer in a form reasonably acceptable to Buyer, one (1) year of recorded data related to the availability of water to power the Facility, if available.
4.11 Ancillary Services. If the Facility is eligible to provide Ancillary Services (as defined in the CAISO Tariff) and Buyer desires to receive any such Ancillary Services from the Facility, Seller shall upon request from Buyer, take all commercially reasonable actions required to provide such Ancillary Services to Buyer; provided that Seller shall not be required to make material changes to the Facility and Buyer shall reimburse Seller for any and all out-of-pocket costs incurred by Seller to provide such Ancillary Services in excess of de minimus administrative costs.
4.12 Workforce Agreement. The Parties acknowledge that in connection with Buyer’s energy procurement efforts, including entering into this Agreement, Buyer is committed to creating community benefits, which includes engaging a skilled and trained workforce and targeted hires.
4.13 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities may be subject to shared facilities and/or co-tenancy agreements entered into among Seller, the Transmission Provider, Seller’s Affiliates, and/or third parties. If applicable, Seller agrees that any agreements regarding Shared Facilities (i) shall permit Seller to perform or satisfy, 363
35 and shall not purport to limit, Seller’s obligations hereunder, (ii) shall provide for separate metering of the Facility; (iii) shall 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) shall provide that any curtailment or restriction of Shared Facility capacity not attributable to a specific project or projects shall be allocated to all generating or storage facilities utilizing the Shared Facilities based on their pro rata allocation of the Shared Facility capacity prior to such curtailment or reduction. Seller shall not, and shall not permit any Affiliate to, allocate to other Persons 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 the Delivery Term Expected Energy.
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 delivery or making available to Buyer, including on Energy prior to the Delivery Point. 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 from the Delivery Point (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 Energy or other Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.
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, however, that 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 Energy delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Energy.
ARTICLE 6
MAINTENANCE OF THE FACILITY
6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.
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36 (a) Seller shall provide to Buyer no later than ninety (90) days prior to the Delivery Commencement Date for the period from the Delivery Commencement Date through the end of the then-current calendar year, and no later than September 1 of each calendar year thereafter for the following calendar year, a schedule of all planned outages or derates of the Facility for maintenance purposes (“Scheduled Maintenance”). Seller shall plan to conduct Scheduled Maintenance between June 1 and October 31 of each year and make commercially reasonably efforts to adjust Scheduled Maintenance within that time window to avoid any outage when water is available and the Facility might otherwise generate. Seller shall use commercially reasonable efforts to accommodate reasonable requests of Buyer with respect to adjusting the timing of Scheduled Maintenance. Seller may modify its schedule of Scheduled Maintenance upon reasonable advance notice to Buyer, subject to reasonable requests of Buyer and consistent with Section 4.4 and this Section 6.1.
(b) Seller shall use commercially reasonable efforts to perform during periods of Scheduled Maintenance all maintenance that will reduce the Facility’s output or availability.
Seller shall arrange for any necessary non-emergency maintenance that is not Scheduled Maintenance and that reduces the Available Capacity of the Facility by more than ten percent (10%) to occur only between June 1 and October 31 of each year, unless (i) such outage is required to avoid damage to the Facility, (ii) such maintenance is necessary to maintain equipment warranties and cannot be scheduled outside the months of November through May, or (iii) the Parties agree otherwise in writing.
(c) Seller shall use commercially reasonable efforts to schedule all maintenance outages, including those associated with Scheduled Maintenance (i) within a single month, rather than across multiple months, (ii) during periods in which CAISO does not require resource substitution or replacement, and (iii) otherwise in a manner to avoid reductions in the Resource Adequacy Benefits available from the Facility to Buyer, provided that Seller shall not be required to consolidate preventative maintenance activities into a single month where such consolidation is inconsistent with vendor-recommended maintenance schedules.
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 on Exhibit B Notice of such condition. Such action may include disconnecting and removing all or a portion of the Facility, or suspending the supply of Energy to Buyer.
6.3 Permits and Approvals. As between Buyer and Seller, Seller has or shall obtain any required permits and approvals in connection with the development, construction, and operation of the Facility, including without limitation, environmental clearance under the California Environmental Quality Act or other environmental law, from the local jurisdiction where the Facility will be constructed.
6.4 Energy to Serve Station Use. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge (i) Seller is responsible for providing all Energy to serve 365
37 Station Use (including paying the cost of any Energy used to serve Station Use and the cost of energy provided by third parties used to serve Station Use); and (ii) Seller may utilize Energy to serve Station Use.
ARTICLE 7
METERING
7.1 Metering. Seller shall measure the amount of Energy produced by the Facility using a CAISO Approved Meter, using a CAISO-approved methodology. Such meter shall be installed on the high side of the Seller’s or Shared Facilities’ transformer and maintained at Seller’s cost. Metering will be consistent with the Metering Diagram set forth in Exhibit A. The 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. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the CAISO meter data applicable to the Facility and all inspection, testing and calibration data and reports. Seller and Buyer shall cooperate to allow both Parties to retrieve the meter reads from the CAISO Operational Meter Analysis and Reporting (OMAR) web and/or directly from the CAISO meter(s) at the Facility.
7.2 Meter Verification. If Buyer or Seller has reason to believe there may be a meter malfunction, Seller shall test the meter. Annually, upon Buyer’s reasonable request, Seller shall test the 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 one-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 deliver an invoice to Buyer for Product no later than ten (10) days after the end of the prior monthly billing period. Each invoice shall provide Buyer (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the generation of Product by the Facility for any Settlement Period during the preceding month, the amount of Product in MWh produced by the Facility as read by the CAISO Approved Meter, the amount of Replacement RA delivered to Buyer, the calculation of Deemed Delivered Energy, and the Contract Price applicable to such Product; and (b) access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount.
Invoices shall be in a format specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. 366
38 8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each monthly invoice. Buyer shall pay undisputed invoice amounts within thirty (30) days after receipt of the invoice. 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. Either Party, upon fifteen (15) days written Notice to the other 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.
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, 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. Except for adjustments required due to a correction of data by the CAISO, any adjustment described in this Section 8.4 is waived if Notice of the adjustment is not provided within twelve (12) months after the invoice is rendered or subsequently adjusted.
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 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 upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued at the Interest Rate 367
39 from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving such overpayment. 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 party other than the Party seeking the adjustment and such 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 amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement, including Delay Liquidated Damages, 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 Pre-Delivery Term Security. To secure Seller’s obligations under this Agreement, including the obligations of Seller to pay Delay Liquidated Damages to Buyer as provided in this Agreement, Seller shall deliver Pre-Delivery Term Security to Buyer in the amount of within five (5) Business Days after the Effective Date. Buyer will have the right to draw upon the Pre-Delivery Term Security if Seller fails to pay a Termination Payment owed to Buyer pursuant to Section 11.2. Seller shall maintain the Pre-Delivery Term Security in full force and effect and Seller shall replenish the Pre-Delivery Term Security in the event Buyer collects or draws down any portion of the Pre-Delivery Term Security for any reason permitted under this Agreement other than to satisfy a Termination Payment. Following the earlier of (i) Seller’s delivery of the Performance Security, or (ii) sixty (60) days after termination of this Agreement, Buyer shall promptly return the Pre-Delivery Term Security to Seller, less the amounts drawn in accordance with this Agreement.
8.8 Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Delivery Commencement Date, in the amount of . Upon mutual agreement of the Parties, the Pre-Delivery Term Security can be rolled over and applied to Seller’s obligation to provide Performance Security. Seller shall maintain the Performance Security in full force and effect and Seller shall 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 within five (5) Business Days after such draw, other than to satisfy a Termination Payment. Seller shall maintain the Performance Security in full force and effect until the date on which the following have occurred (“Performance Security End Date”): (A) the Delivery Term has expired or terminated early; and (B) all payment obligations of the Seller arising under this Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of the Performance Security End Date, Buyer shall promptly return to Seller the unused portion of the Performance Security. Provided that no Event of Default has occurred and is continuing with respect to Seller, Seller may replace or change the form of Performance Security to another form of Performance Security from time to time upon reasonable prior written notice to Buyer. 368
40 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 Pre-Delivery Term Security, Performance Security, 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 Pre-Delivery Term 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 Pre-Delivery Term Security and Performance Security, including any such rights and remedies under Law then in effect;
(b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Pre-Delivery Term Security or Performance Security; and (c) Liquidate all Pre-Delivery Term 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 these obligations are satisfied in full.
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 on the Cover Sheet 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 369
41 Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail, facsimile, or other electronic means) and if concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic Notice by hand delivery or express courier, at the time indicated by the time stamp upon delivery; 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 reasonable efforts, cannot be avoided by and is 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. (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; severe drought; epidemic; 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 that render a Party’s performance of this Agreement at the Contract Price 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 Energy at a lower price, or Seller’s ability to sell Energy at a higher price, than the Contract Price); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility; (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 that disables physical or electronic facilities necessary to transfer funds to the payee Party; (iv) a Curtailment Period, except to the extent such Curtailment Period is caused by a Force Majeure Event; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility 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 370
42 failure except if such equipment failure is caused by a Force Majeure Event; (viii) variations in weather, including wind, precipitation, and insolation, within one in fifty (1 in 50) year occurrence; or (ix) any interruption of interconnection service (including in connection with the arrangements between Seller and Sierra Pacific Industries or Burney Biomass Cogen, including those described in Exhibit A) for the Facility except to the extent such interruption is caused by a Force Majeure Event of the kind specifically described in Section 10.1(b); or (x) Seller’s inability to achieve Delivery Commencement following the Guaranteed Delivery Commencement Date.
10.2 No Liability If a Force Majeure Event Occurs. 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. Buyer shall not be obligated to pay for any Product that Seller was not able to deliver as a result of 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 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. Notwithstanding any other provision of this Agreement, 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 the event of any delay or nonperformance resulting from a Force Majeure Event, the Party suffering the Force Majeure Event shall (a) as soon as practicable, notify the other Party in writing of the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance, and (b) 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; provided, however, that a Party’s failure to give timely Notice shall not affect such Party’s ability to assert that a Force Majeure Event has occurred unless and to the extent the delay in giving Notice materially prejudices the other Party.
10.4 Termination Following Force Majeure Event. If a Force Majeure Event has occurred that has caused either Party to be wholly or partially unable to perform its obligations hereunder, and has continued for a consecutive twelve (12) month period, then the non-claiming Party may terminate this Agreement upon written Notice to the other Party with respect to the Facility experiencing the Force Majeure Event. Upon any such termination, neither Party shall have any liability to the other, save and except for those obligations specified in Section 2.1(b), and Buyer shall promptly return to Seller any Pre-Delivery Term Security or Performance Security then held by Buyer.
ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION
11.1 Events of Default. An “Event of Default” shall mean, 371
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44 (vi) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8, including the failure to replenish the Pre-Delivery Term Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Termination Payment, if such failure is not remedied within five (5) Business Days after Notice thereof;
(vii) if at any time Seller owns, operates or manages any equipment, facility, property or other asset, other than the Facility or Other Facilities it owns, operates or manages at the time of the Effective Date, or engages in any business or activity other than the development, financing, ownership or operation of the Facility or such Other Facilities that it owns, operates or manages at the time of the Effective Date;
(viii) the occurrence of six (6) consecutive months in which a WREGIS Certificate Deficit was caused, or was the result of any action or inaction, by Seller; provided, that if Seller is taking reasonable steps to prevent subsequent WREGIS Certificate Deficits and is reasonably likely to succeed in preventing the occurrence in the seventh (7th) consecutive month, then an Event of Default shall not be deemed to have occurred until the seventh (7th) consecutive month; or
(ix) 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, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within five (5) Business Days after Seller receives Notice of the occurrence of any of the following events:
(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; or
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46 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 (in the case of an Event of Default by Seller under Section 11.1(b)(ii)) or (ii) the Termination Payment calculated in accordance with Section 11.3 below (in the case of any other Event of Default by either Party); (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; and/or
(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, that 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 Termination Payment. The Termination Payment (“Termination Payment”) for a Terminated Transaction shall be the Settlement Amount plus any or all other amounts due to or from the Non-Defaulting Party netted into a single amount. If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero. 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; provided, however, that any lost Capacity Attributes and Green Attributes shall be deemed direct damages covered by this Agreement.
Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) 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, (b) the Termination Payment described in this section is a reasonable and appropriate approximation of such damages, and (c) the Termination Payment described in this section 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. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment and whether the Termination Payment is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable 375
47 detail the calculation of such amount and the sources for such calculation. The Termination Payment 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. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, 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, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment shall be determined in accordance with Article 16.
11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date. If the Agreement is terminated by Buyer prior to the Delivery Commencement Date due to Seller’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 two (2) years following the Early Termination Date due to Seller’s Event of Default, 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 (including price) and Buyer fails to accept such offer within forty-five (45) days of Buyer’s receipt thereof.
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 are 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 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 AN
EXPRESS REMEDY, INDEMNITY PROVISION, OR MEASURE OF DAMAGES HEREIN,
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, 376
48 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
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.
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 BENEFITS, 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 THE DAMAGE PAYMENT UNDER SECTION 11.2 AND THE TERMINATION PAYMENT UNDER SECTION 11.3, 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, AND (UNLESS EXPRESSLY STATED TO THE CONTRARY) AN EXCLUSIVE REMEDY. 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. 377
49 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 an Idaho limited liability company, duly organized, validly existing and in good standing under the laws of the State of Idaho, 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 corporate 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 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) The Facility is located in the State of California. (f) All Energy and associated Green Attributes sold and delivered to Buyer hereunder, qualify as PCC1.
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 378
50 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. (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.
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 379
51 (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and any contracts to which it is a party and in material compliance with any Law.
13.4 Prohibition Against Forced Labor. Seller represents and warrants that it has not and will not knowingly utilize equipment or resources for the operation or maintenance of the Facility that rely on work or services exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily (“Forced Labor”). Consistent with the business advisory jointly issued by the U.S. Departments of State, Treasury, Commerce and Homeland Security on July 1, 2020, equipment or resources sourced from the Xinjiang region of China are presumed to involve Forced Labor. Seller shall certify that it will not utilize such equipment or resources in connection with the operation or maintenance of the Facility.
ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments. Except as provided below and in Article 15, neither Seller nor Buyer may voluntarily assign its rights nor delegate its duties under this Agreement, or any part of such rights or duties, without the written consent of the other Party.
Neither Seller nor Buyer shall unreasonably withhold, condition or delay any requested consent to an assignment that is allowed by the terms of this Agreement. Any such assignment or delegation made without such written consent or in violation of the conditions to assignment set out below shall be null and void.
14.2 Permitted Assignment; Change of Control of Seller. Seller may, without the prior written consent of Buyer, transfer or assign this Agreement to: (a) an Affiliate of Seller; or (b) subject to Section 15.1, a Lender as collateral. Any direct or indirect Change of Control of Seller (whether voluntary or by operation of Law) shall be deemed an assignment under this Article 14 and will require the prior written consent of Buyer, which consent shall not be unreasonably withheld.
14.3 Permitted Assignment; Change of Control of Buyer. Buyer may assign its interests in this Agreement to an Affiliate of Buyer or to any entity that has acquired all or substantially all of Buyer’s assets or business, whether by merger, acquisition or otherwise without Seller’s prior written consent, provided, that in each of the foregoing situations, the assignee (a) has a Credit Rating of Baa2 or higher by Moody’s or BBB or higher by S&P, and (b) is a community choice aggregator or publicly-owned electric utility with retail customers located in the state of California; provided, further, that in each such case, no fewer than fifteen (15) Business Days before such assignment Buyer (x) notifies Seller of such assignment and (y) provides to Seller a written agreement signed by the Person to which Buyer wishes to assign its interests stating that such Person agrees to assume all of Buyer’s obligations and liabilities under this Agreement and under any consent to assignment and other documents previously entered into by Seller as described in Section 15.2(b). Any assignment by Buyer, 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 Seller.
380
52 ARTICLE 15
LENDER ACCOMMODATIONS
15.1 Granting of Lender Interest. Notwithstanding Sections 14.2 or 14.3, either Party may, without the consent of the other Party, grant an interest (by way of collateral assignment, or as security, beneficially or otherwise) in its rights and/or obligations under this Agreement to any Lender. Each Party’s obligations under this Agreement shall continue in their entirety in full force and effect. Promptly after granting such interest, the granting Party shall notify the other Party in writing of the name, address, and telephone and facsimile numbers of any Lender to which the granting Party’s interest under this Agreement has been assigned. Such Notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving the other Party such initial Notice, the granting Party shall promptly give the other Party Notice of any change in the information provided in the initial Notice or any revised Notice.
15.2 Rights of Lender. If a Party grants an interest under this Agreement as permitted by Section 15.1, the following provisions shall apply:
(a) Lender shall have the right, but not the obligation, to perform any act required to be performed by the granting Party under this Agreement to prevent or cure a default by the granting Party in accordance with Section 11.2 and such act performed by Lender shall be as effective to prevent or cure a default as if done by the granting Party. (b) The other Party shall cooperate with the granting Party or any Lender, to execute or arrange for the delivery of certificates, consents, opinions, estoppels, direct agreements, amendments and other documents reasonably requested by the granting Party or Lender in order to consummate any financing or refinancing and shall enter into reasonable agreements with such Lender that provide that the non-granting Party recognizes the Lender’s security interest and such other provisions as may be reasonably requested by the granting Party or any such Lender; provided, however, that all costs and expenses (including reasonable attorney’s fees) incurred by the non-granting Party in connection therewith shall be borne by the granting Party, and that the non-granting Party shall have no obligation to modify this Agreement or to reduce its benefits or increase its risks or burdens under this Agreement.
(c) Each Party agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of the granting Party or shall have any obligation or liability to the other Party with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of the granting Party hereunder; provided that the non-granting Party shall nevertheless be entitled to exercise all of its rights hereunder in the event that the granting Party or Lender fails to perform the granting Party’s obligations under this Agreement.
15.3 Cure Rights of Lender. The non-granting Party shall provide Notice of the occurrence of any Event of Default described in Sections 11.1 or 11.2 hereof to any Lender, and such Party shall accept a cure performed by any Lender and shall negotiate in good faith with any Lender as to the cure period(s) that will be allowed for any Lender to cure any granting Party Event of Default hereunder. The non-granting Party shall accept a cure performed by any Lender so long 381
53 as the cure is accomplished within the applicable cure period so agreed to between the non-granting Party and any Lender. Notwithstanding any such action by any Lender, the granting Party shall not be released and discharged from and shall remain liable for any and all obligations to the non-granting Party arising or accruing hereunder. The cure rights of Lender may be documented in the certificates, consents, opinions, estoppels, direct agreements, amendments and other documents reasonably requested by the granting Party pursuant to Section 15.2(b).
ARTICLE 16
DISPUTE RESOLUTION
16.1 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.
16.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written 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 thirty (30) days of initiating such discussions, or within forty (40) 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.
16.3 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, the prevailing Party shall be entitled to reasonable attorneys’ fees (including reasonably allocated fees of in-house counsel) in addition to court costs and any and all other costs recoverable in said action.
16.4 Venue. The Parties agree that any litigation arising with respect to this Agreement is to be venued in the Superior Court for the county of San Mateo, California.
ARTICLE 17
INDEMNIFICATION
17.1 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 third-party claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) 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 violation of Law or the negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees, or agents. (b) Nothing in this Section 17.1 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 382
54 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.
17.2 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 17 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 such Party and satisfactory to the Indemnified Party, provided, however, that 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 that 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 17, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 17, 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 18
INSURANCE
18.1 Insurance.
(a) General. Seller shall comply at all times during the Contract Term with the requirements of Exhibit E.
ARTICLE 19
CONFIDENTIAL INFORMATION
19.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written, and whether delivered by Seller to Buyer or by Buyer to Seller: (a) proposals and negotiations of the Parties in the negotiation of this Agreement; (b) the terms and conditions of this Agreement; and (c) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” or words of similar import 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; (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 383
55 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.
19.2 Duty to Maintain Confidentiality. The Party receiving Confidential Information shall treat it as confidential, and shall adopt reasonable information security measures to maintain its confidentiality, employing the higher of (a) the standard of care that the receiving Party uses to preserve its own confidential information, or (b) a standard of care reasonably tailored to prevent unauthorized use or disclosure of such Confidential Information. Confidential Information may be disclosed by the recipient if and to the extent such disclosure is required (a) by Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. The Party that originally discloses Confidential Information may use such information for its own purposes, and may publicly disclose such information at its own discretion. Notwithstanding the foregoing, Seller acknowledges that Buyer is required to make portions of this Agreement available to the public in connection with the process of seeking approval from its board of directors for execution of this Agreement. Buyer may, in its discretion, redact certain terms of this Agreement as part of any such public disclosure, and will use reasonable efforts to consult with Seller prior to any such public disclosure. Seller further acknowledges that Buyer is a public agency subject to the requirements of the California Public Records Act (Cal. Gov. Code section 6250 et seq.). Upon request or demand from any third person not a Party to this Agreement for production, inspection and/or copying of this Agreement or other Confidential Information provided by Seller to Buyer, Buyer shall, to the extent permissible, notify Seller in writing in advance of any disclosure that the request or demand has been made; provided that, upon the advice of its counsel that disclosure is required, Buyer may disclose this Agreement or any other requested Confidential Information, whether or not advance written notice to Seller has been provided. Seller shall be solely responsible for taking whatever steps it deems necessary to protect Confidential Information that is the subject of any Public Records Act request submitted by a third person to Buyer.
19.3 Irreparable Injury; Remedies. Buyer and Seller each agree that disclosing Confidential Information of the other in violation of the terms of this Article 19 may cause irreparable harm, and that the harmed Party may seek any and all remedies available to it at Law or in equity, including injunctive relief and/or notwithstanding Section 12.2, consequential damages.
19.4 Disclosure to Lender. Notwithstanding anything to the contrary in this Article 19, Confidential Information may be disclosed by Seller to any potential Lender or any of its agents, consultants or trustees so long as the Person to whom Confidential Information is disclosed agrees in writing to be bound by the confidentiality provisions of this Article 19 to the same extent as if it were a Party.
19.5 Disclosure to Credit Rating Agency. Notwithstanding anything to the contrary in this Article 19, Confidential Information may be disclosed by either Party to any nationally recognized credit rating agency (e.g., Moody’s Investors Service, Standard & Poor’s, or Fitch Ratings) in connection with the issuance of a credit rating for that Party or its Affiliates, provided that any such credit rating agency agrees in writing to maintain the confidentiality of such Confidential Information.
384
56 19.6 Public Statements. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such press release.
ARTICLE 20
MISCELLANEOUS
20.1 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 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.
20.2 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, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.
20.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.
20.4 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).
20.5 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.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 385
57 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, a non-Party or the FERC acting sua sponte 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).
20.7 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.
20.8 Facsimile or Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or other electronic format, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart.
20.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
20.10 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.
20.11 Change in Electric Market Design. 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. If a change to any Law occurs after the Effective Date, including any rule or requirement of WREGIS, that impacts the number or quality of Resource Adequacy Benefits or Green Attributes (including Renewable Energy Credits) available to Buyer from the Facility, then Buyer may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date, it being understood that (i) Buyer is to receive the maximum amount of Resource Adequacy Benefits and Green Attributes available from the Facility and (ii) Seller’s ongoing compliance costs associated with the provision of Resource Adequacy Benefits and Green Attributes available from the Facility, among other things, are subject to the Compliance Expenditure Cap. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If 386
58 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 16. 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, or constitute, or form the basis of, a Force Majeure Event, and (ii) this Agreement shall remain in full force and effect, subject to any necessary changes, if any, agreed to by the Parties or determined through dispute resolution.
387
Exhibit A - 1
EXHIBIT A
DESCRIPTION OF THE FACILITY
Facility Name: Burney Creek Hydro
Site Name: Burney Creek Hydro
Site Description: The entire Facility is located in privately owned rural forested lands zoned as a Timber Preserve. The penstock collects water from Burney Creek, runs about
4.0 miles to the concrete substructure, and steel frame powerhouse where the generator is located. The Project is interconnected to the PG&E owned transmission system via a 2.5-mile
12.5 kV gen tie that connects to Sierra Pacific Industries (SPI) facility on Route 299. The output is stepped up to 230 kV transmission voltage by a SPI-owned transformer to interconnect to CAISO grid. The powerhouse, penstock and intake facilities are located on the property of Fruit Growers Supply Company and SPI. Site control is by easement through a 50-year, three-party “Easement and Royalty Agreement” between Highland Hydro (now Snow Mountain Hydro), Fruit Growers and SPI, dated May 1989. The agreement also provides for interconnection to PG&E through SPI’s 230 kV transformer at SPI’s Burney Biomass Cogen.
Site Address: Site address was not assigned at the time the project was permitted and constructed.
Snow Mountain Hydro LLC
38274 Hwy. 299 E.
Burney, CA 96013
GPS Coordinates:
Site Map:
388
389
390
391
5 Agreement with PG&E and the CAISO (SGIA1), Burney Creek Hydro is recognized as a separate entity by PG&E and is scheduled and metered under a separate Resource ID (SPBURN_7_SNOWMT).
The shared generation tie consists of an approximately 0.78 mile span of gen-tie line which spans from SPI’s air switch KPF SWT 201 to PG&E’s SPI 230 kV tap where it interconnects with PG&E’s Pit #3 – Pit #1 230 kV line in Shasta County, CA between Tower 13/103 and Tower 13/104 as shown in the single-line diagram. An approximately 200 feet long portion of the 230 kV gen-tie line identified for SPI – Burney project running from its Point of Change of Ownership to its Point of Interconnection, is also being utilized to accommodate the interconnection for Burney Creek Hydro generating facility. Burney Creek Hydro acknowledges that if SPI terminates the SGIA1 with PG&E and the CAISO, Burney Creek Hydro will be responsible for any additional costs necessary to construct and install Interconnection Facilities necessary to connect to the Point of Interconnection.
To calculate the Burney Biomass Cogen generation, a CAISO meter is installed on the high-side (230 kV) of the SPI power transformer and at the Burney Creek Hydro net metering point. The Burney Creek Hydro meter is programmed to compensate its generation data to the CAISO Point of Delivery which is on the high side of the SPI power transformer. To obtain the Burney Biomass Cogen revenue data, the CAISO has agreed to poll the compensated revenue data from the Burney Creek Hydro meter and subtract that value from the revenue data polled from the high-side connected CAISO meter which is metering the total Burney Biomass Cogen and Burney Creek Hydro generation.
To determine the losses to be applied to the Burney Creek Hydro meter, a spreadsheet has been developed to determine the total project losses and the point of delivery generation values for the Burney Biomass Cogen and Burney Creek Hydro projects. The losses are calculated and allocated based on both sites generating at full capacity. Once the losses for each project are calculated, an equivalent per-phase resistance is reverse-engineered for the Burney Creek Hydro project and is the value programmed into the Burney Creek Hydro meter for point of delivery calculations. This ensures that the CAISO Point of Receipt values are as accurate as possible.
CAISO Queue Number: N/A. CAISO Resource ID: SPBURN_7_SNOWMT 392
393
394
395
Exhibit C - 1
EXHIBIT C
FORM OF DELIVERY COMMENCEMENT CERTIFICATE
This certification (“Certification”) of Delivery Commencement is delivered by _______[Licensed Professional Engineer] (“Engineer”) to Peninsula Clean Energy Authority (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale 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.
Engineer hereby certifies and represents to Buyer the following:
(1) Seller has installed equipment with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed Capacity.
(2) The Facility’s testing included a performance test demonstrating peak electrical output of no less than ninety-five percent (95%) of the Guaranteed Capacity at the Delivery Point,. (3) Authorization to parallel the Facility was obtained by the Participating Transmission Owner, Pacific Gas and Electric Company on___3/20/2020____. (4) The Participating Transmission Owner, Pacific Gas and Electric Company, has provided documentation supporting full unrestricted release for commercial operation on ____3/20/2020____.
(5) The CAISO has provided notification supporting the Facility’s commercial operation, inclusion in the Full Network Model in accordance with the CAISO tariff on ___3/20/2020___.
EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:
Its:
Date:
396
Exhibit D
EXHIBIT D
FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date:
Bank Ref.:
Amount: US$[XXXXXXX]
Expiry Date:
Beneficiary:
Peninsula Clean Energy Authority
[Address]
Ladies and Gentlemen:
On behalf of [XXXXXXX] (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of Peninsula Clean Energy Authority, Address__________, for an amount not to exceed the aggregate sum of U.S. $[XXXXXXX] (United States Dollars [XXXXXXX] and 00/100), pursuant to that certain [Agreement] dated as of ____________ (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall have an initial expiry date of __________ __, 201_ subject to the automatic extension provisions herein.
Funds under this Letter of Credit are available to you against your draft(s) drawn on us at sight, mentioning thereon our Letter of Credit No. [XXXXXXX] accompanied by your dated statement purportedly signed by your duly authorized representative, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein.
We hereby agree with the Beneficiary that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation to the Issuer in person, by courier or by fax at [insert bank address]. Payment shall be made by Issuer in U.S. dollars with Issuer’s own immediately available funds.
The document(s) required may also be presented by fax at facsimile no. (xxx) xxx-xxx on or before the expiry date (as may be extended below) on this Letter of Credit in accordance with the terms and conditions of this Letter of Credit. No mail confirmation is necessary and the facsimile transmission will constitute the operative drawing documents without the need of originally signed 397
Exhibit D
documents.
Partial draws are permitted under this Letter of Credit.
It is a condition of this Letter of Credit that it shall be deemed automatically extended without an amendment for a one-year period beginning on the present expiry date hereof and upon each anniversary for such date, unless at least ninety (90) days prior to any such expiry date we have sent to you written notice by overnight courier service that we elect not to permit this Letter of Credit to be so extended, in which case it will expire on its then current expiry date. No presentation made under this Letter of Credit after such expiry date will be honored.
Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements, this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder.
This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) International Chamber of Commerce Publication No. 600 (the “UCP”), except to the extent that the terms hereof are inconsistent with the provisions of the UCP, including but not limited to 36 of the UCP, in which case the terms of this Letter of Credit shall govern. In the event of an act of God, riot, civil commotion, insurrection, war or any other cause beyond Issuer’s control (as defined in Article 36 of the UCP) that interrupts Issuer’s business and causes the place for presentation of the Letter of Credit to be closed for business on the last day for presentation, the expiry date of the Letter of Credit will be automatically extended without amendment to a date thirty (30) calendar days after the place for presentation reopens for business.
Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available. [Bank Name]
___________________________
[Insert officer name]
[Insert officer title]
398
Exhibit D
DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD)
Drawing Certificate
[Insert Bank Name and Address]
Ladies and Gentlemen:
The undersigned, a duly authorized representative of Peninsula Clean Energy Authority, Address___________ as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of [XXXXXXX] (the “Applicant”), hereby certifies to the Bank as follows:
1. Applicant and Beneficiary are party to that certain Agreement dated as of [XXXXXXX] (the “Agreement”).
2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________.
or
Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because the Bank has provided notice of its intent to not extend the expiry date of the Letter of Credit and Applicant failed to provide acceptable replacement security to Beneficiary at least thirty (30) days prior to the expiry date of the Letter of Credit.
3. The undersigned is a duly authorized representative of Peninsula Clean Energy and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary.
You are hereby directed to make payment of the requested amount to Peninsula Clean Energy Authority by wire transfer in immediately available funds to the following account:
[Specify account information]
Peninsula Clean Energy Authority
_______________________________
Name and Title of Authorized Representative
Date___________________________
399
400
401
Exhibit E
the expiration date thereof, notice will be delivered in accordance with the policy provisions. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer.
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. Seller shall also comply with all insurance requirements by any renewable energy or other incentive program administrator or any other applicable authority.
Acceptance of the certificates or endorsements by the Buyer shall not constitute a waiver of Seller’s obligations hereunder.
If Seller fails to secure and/or pay the premiums for any of the policies of insurance required herein, or fails to maintain such insurance, Buyer may, in addition to any other rights it may have under this Agreement or at law or in equity, terminate this Agreement.
Seller shall be fully and financially responsible for all deductibles or self-insured retentions.
Waiver of Subrogation – Seller shall provide a Waiver of Subrogation Endorsement to Buyer for Commercial General Liability, Auto Liability and Workers’ Compensation lines of coverage.
EXHIBIT F
402
Exhibit E
FORM OF REPLACEMENT RA NOTICE
This Replacement RA Notice (this “Notice”) is delivered by [ ], a [ ] (“Seller”) to Peninsula Clean Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale Agreement dated [__________] (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Notice but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Pursuant to Section 3.9(b) of the Agreement, Seller hereby provides the below Replacement RA product information (to be repeated for each unit if more than one):
Name
Location
CAISO Resource ID
Unit SCID
Resource Type
Point of Interconnection with the CAISO
Controlled Grid (“substation or transmission line”)
Path 26 (North or South)
LCR Area (if any)
Deliverability restrictions, if any, as described in
most recent CAISO deliverability assessment
Run Hour Restrictions
Deliverability Period
Prorated Percentage of Unit Factor
Prorated Percentage of Unit Flexible Factor
Resource Category (MCC Bucket e.g., 1, 2, 3, or 4)
Flexible Capacity Category (e.g., 1, 2, 3, or N/A)
Month Unit CAISO NQC
(MW)
Unit CAISO EFC
(MW)
Unit Contract Quantity
(MW)
Unit EFC Contract
Quantity (MW)
January
February
March
April
May
June
July
August
September
October
November
December
403
Exhibit E
[SELLER]
By:
Its:
Date:
Whereas, the following definitions apply to the terms in the above Replacement RA product information:
“CPUC RA Filing Guide” means the Filing Guide for System, Local and Flexible Resource Adequacy (RA) Compliance Filings published annually by the CPUC. “Deliverability Period” means the period in which the unit has rights to deliver energy to the CAISO Grid.
“Flexible Capacity Category” means the category of Effective Flexible Capacity, as described in the CPUC RA Filing Guide, applicable to the unit.
“LCR Area (if any)” means the Local Capacity Requirement area, as used in the CPUC RA Filing Guide, applicable to the unit, if any.
“Prorated Percentage of Unit Factor” means the percentage of the Unit CAISO NQC that is designated as Unit Contract Quantity.
“Prorated Percentage of Unit Flexible Factor” means the percentage of Unit CAISO EFC that is designated as Unit EFC Contract Quantity.
“Resource Category” means the Maximum Cumulative Capacity category, as described in the CPUC RA Filing Guide, applicable to the unit.
“Resource Type” means the type of generating or storage resource. “Run Hour Restrictions” means any restrictions on the ability of the unit to run during any hours of the day.
“Unit CAISO EFC” means the unit’s Effective Flexible Capacity, as described in the CPUC RA Filing Guide, as determined by CPUC and CAISO.
“Unit CAISO NQC” means the NQC (as defined in the CAISO Tariff) for the unit, as determined by CPUC and CAISO.
“Unit Contract Quantity” means the amount of Resource Adequacy Benefits to be provided to 404
Exhibit E
Buyer from the unit in the form of Replacement RA, not to exceed the Guaranteed RA Amount. “Unit EFC Contract Quantity” means the amount of Flexible Resource Adequacy Benefits to be provided to Buyer from the unit in the form of Replacement RA, not to exceed the Guaranteed RA Amount.
“Unit SCID” means the unit’s “Scheduling Coordinator ID Code”, as defined in the CAISO Tariff. 405
Exhibit G1 - 1
EXHIBIT G - 1
Annual Energy Forecast
The following table is provided for informational purposes only.
Please provide the expected metered energy in Pacific Prevailing Time. For the Daylight Savings Day in March, the HE3 volume should be 0 MWh. For the Daylight Savings Day in November, the HE2 volume should represent two hours of generation.
Date Datetime (Hour
Beginning)
Hour Ending MWh
1/1/2022 1/1/2022 0:00 1
1/1/2022 1/1/2022 1:00 2
1/1/2022 1/1/2022 2:00 3
1/1/2022 1/1/2022 3:00 4
1/1/2022 1/1/2022 4:00 5
1/1/2022 1/1/2022 5:00 6
[insert additional rows] … …
12/31/2022 12/31/2022 18:00 19
12/31/2022 12/31/2022 19:00 20
12/31/2022 12/31/2022 20:00 21
12/31/2022 12/31/2022 21:00 22
12/31/2022 12/31/2022 22:00 23
12/31/2022 12/31/2022 23:00 24
406
Exhibit G2 - 1
EXHIBIT G - 2
Monthly Expected Available Capacity
The following table is provided for informational purposes only. Please adjust the table for the appropriate number of days in the month for each month of the year.
Monthly Forecast of Available Capacity (MW)
0:00 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 Day 1 Day 2 Day 3 Day 4 Day 5 Insert additional rows as needed Day 26 407
Exhibit G2 - 2
0:00 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 Day 27 Day 28 Day 29* Day 30* Day 31* *Include these rows if needed for each month.
408
Exhibit G3 - 1
EXHIBIT G - 3
Monthly Expected Metered Energy
The following table is provided for informational purposes only. Please adjust the table for the appropriate number of days in the month for each month of the year.
Monthly Forecast of Metered Energy (MWh)
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 Day 1 Day 2 Day 3 Day 4 Day 5 Insert additional rows as needed Day 26 409
Exhibit G3 - 2
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 Day 27 Day 28 Day 29* Day 30* Day 31* *Include these rows if needed for each month.
410
Item No. 17
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DATE: October 14, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: Majority Present
TO:
FROM:
Peninsula Clean Energy Board of Directors
Jan Pepper, CEO
Shawn Marshall, COO
Shayna Barnes, Operations Specialist
Kirsten Andrews-Schwind, Senior Manager of Community Relations Cora Dino, Director of Human Resources
SUBJECT: Diversity, Equity, Accessibility, and Inclusion (DEAI) Policy Adoption
RECOMMENDATION
Adopt Peninsula Clean Energy Diversity, Equity, Accessibility, and Inclusion (DEAI) Policy BACKGROUND:
In July 2020, the Citizens Advisory Committee (CAC) formed an Equity Working Group with the primary task of “ensur[ing] [that] equity is a priority across all working groups and built into PCE strategic priorities.” The CAC’s equity working group created a draft equity statement and brought the draft statement to Peninsula Clean Energy’s Board of Directors at their January 28, 2021 meeting. The draft equity statement is provided below:
In light of the community’s focus on anti-racism and the Black Lives Matter Movement following the death of George Floyd in May of 2020 and other continuing instances of systemic racism and institutional violence against black people, the Peninsula Clean Energy CAC Equity Working Group has worked over the past few months on a statement that would embody the commitment of the organization to ensure equity and inclusion in their work. The working group recognizes that there are many forms of discrimination that impact people from different backgrounds but the growing awareness of significant violence and discrimination against people of color (BIPOC) is our current focus, and we are committed to developing a framework that will eventually address discrimination in all its forms.
Peninsula Clean Energy Citizens Advisory Committee Draft Statement on Equity and Inclusion
o Peninsula Clean Energy commits to making anti-racism top of mind during decision making.
o Will follow best practices in hiring, vendor selection and project selection 411
Item No. 17
o Will use a racial equity lens when developing the community impact report o Develop a means of tracking revenue and formulating a mechanism (qualitative and quantitative) that ensures accountability.
o Current board goals - 20% of programs funding going to low-income communities (working on definition)
o Pursue equity in energy generation and programs
o Low-income households, as well as Black, Hispanic, and Native American households, pay a much larger share of their income on energy bills, straining budgets and putting them at heightened risk of utility shutoffs during the COVID-19 pandemic and recession (https://www.aceee.org/press-release/2020/09/report-low-income-households-communities-color-face-high-energy-burden) At the Board of Directors Meeting on January 28, 2021, the Board accepted the above draft equity statement and formed a Diversity, Equity, Accessibility, and Inclusion Subcommittee to build on the statement and create a DEAI organizational policy and action plan for Peninsula Clean Energy. Board members on this subcommittee include Directors Donna Colson, Sam Hindi, Carlos Romero, Roderick Daus-Magbual, and former Director Michael Smith.
Senate Bill 255 and Utility Supplier Diversity
In addition to the CAC Draft Statement on Equity and Inclusion serving as a catalyst for undertaking the DEAI work, Peninsula Clean Energy has new regulatory compliance reporting obligations regarding DEAI under Senate Bill (SB) 255 (Bradford). SB 255 is a bill signed by Governor Newsom in October 2019 that amended the Public Utilities Code Sections 366.2 and 8283 and brought Community Choice Aggregators into the California Public Utilities Commission’s (CPUC’s) Utility Supplier Diversity Program. The Utility Supplier Diversity Program’s framework and guidelines are laid out in the CPUC’s General Order (GO) 156. To comply with SB 255 and GO 156, CCAs like Peninsula Clean Energy must annually submit a detailed and verifiable plan for increasing procurement from small, local, and diverse business enterprises, and a report that details our activities supporting diverse business enterprises and the amount of our procurement spend going towards these businesses in the prior year. This program focuses on the positive downstream economic effects of including diverse suppliers in utilities’ supply chains. Compliance with SB 255 and GO 156 is another consideration that staff and the Board subcommittee contemplated when drafting the Request for Proposals and selecting the consultant team to carry out the DEAI work.
Selection of DEAI Consultant
To create the DEAI organizational policy and action plan, Peninsula Clean Energy staff drafted a Request for Proposals (RFP) for DEAI consulting services under direction from the DEAI subcommittee to be released as a competitive solicitation. The Request for Proposals was released in early May 2021 with responses due in mid-June 2021. Staff received eight responses to this RFP and interviewed three top consultants with the Board subcommittee in early July. The Board subcommittee recommended that the consultant team from GCAP Services, Inc. be selected to carry out the DEAI work as they were the best fit for Peninsula Clean Energy’s range of needs, including regulatory compliance with SB 255 and GO 156. The full Peninsula Clean Energy Board approved the contract with GCAP Services, Inc. at the Board meeting on October 28, 2021.
412
Item No. 17
DEAI Needs Assessment
The DEAI work began in mid November 2021, with a kickoff meeting with the selected consultant, GCAP, on November 15, 2021. GCAP and Peninsula Clean Energy staff covered the following items in the kickoff meeting:
• Introductions
• Data Collection and Discovery Process
• Project Management Meetings/Calls Schedule
• Project Schedule
Task 1 of the Scope of Work called for GCAP to conduct a regulatory review of General Order 156, Senate Bill 255, and Proposition 209 and to identify best practices to improve performance on required metrics. At the kickoff meeting, staff and the consultant team agreed that it made sense to conduct this regulatory review in conjunction with subsequent tasks on the project schedule (allowing us to proceed to other tasks before the regulatory review was complete). Staff also agreed to move the deliverable for Task 1 (brief report identifying organization-specific areas for improvement and recommendations, and best practices), to later in the project schedule so that the recommendations could be informed by the DEAI needs assessment phase of the project (the survey and interview phase). With these considerations in mind, staff and the consultant team met on November 17, 2021 to start brainstorming a list of stakeholders to whom we would send the DEAI survey. The initial list of stakeholders was further built out by staff over the following month and a half and ultimately included the following groups:
• Staff, including consultants and prior staff
• Peninsula Clean Energy Board Members and Alternates
• Peninsula Clean Energy Citizens Advisory Committee Members • City Managers and City Sustainability Staff
• Outreach Grantees, Applicants, and Contractors
• Business Organizations, including Ethnic Chambers of Commerce • Trade Organizations
• Other key community stakeholders (including core social service agencies, other nonprofit organizations, county contacts)
In the first month of the project (mid-November to mid-December, 2021), GCAP started their review of Proposition 209, Senate Bill 255, and General Order 156. They also started their initial review of other Peninsula Clean Energy policies and documents that would be updated as part of Task 4 of the project. These documents include Peninsula Clean Energy’s Strategic Plan, Employee Handbook, and Policy #9 Ethical Vendor Standards, and Policy #10 Inclusive and Sustainable Workforce Policy. They also started drafting questions for the survey in Task 2, the organizational needs assessment phase of the project.
The majority of the second month of the project (mid-December 2021 to mid-January 2022) was spent on development of the DEAI needs assessment survey. GCAP provided the initial draft of survey questions for internal and external stakeholders to Peninsula Clean Energy staff on January 4, 2022. Staff and the consultant team decided to have two survey types: internal (for staff, former staff, and contractors), and external (all other stakeholders). Peninsula Clean Energy staff conducted an internal review of the questions and provided comments to GCAP.
GCAP and Peninsula Clean Energy then reviewed the survey questions and feedback together on January 7, 2022. Peninsula Clean Energy staff asked GCAP to add in more questions about environmental justice to the external-facing survey. Staff provided GCAP with the report Building 413
Item No. 17
a Just Energy Future: A Framework for Community Choice Aggregators to Power Equity and Democracy in California from the California Environmental Justice Alliance (CEJA) to use as a resource when coming up with questions that centered environmental justice and energy equity.
In the third month of the project (mid-January to mid-February 2022), Peninsula Clean Energy staff and the consultant team continued working on refining the survey questions. GCAP provided another draft of the survey questions that included assessment questions from the CEJA report mentioned above. Peninsula Clean Energy staff then added additional questions from this report. The questions added from the CEJA report focused on the following five subject areas:
1. Coordination with Local Community-Based Organizations (CBOs)
2. Accessible Information and Outreach
3. Community-Driven Local Program Design
4. Transparent Decision-Making
5. Local and State Accountability
Staff and the consultant team also started to prepare to meet with the DEAI subcommittee to review the survey. The team met with the Board DEAI subcommittee on January 27, 2022 to review the definitions of Diversity, Equity, Accessibility, and Inclusion, the survey questions, and survey stakeholder groups to be interviewed. At this meeting, the consultant team also reviewed the survey goals, objectives, design, format, and process. GCAP and Peninsula Clean Energy staff incorporated feedback from the Board subcommittee into the survey definitions and questions. Peninsula Clean Energy staff did two more reviews of the survey: one with GCAP on February 4, 2022, and one with just internal staff on February 8, 2022. GCAP incorporated final comments from staff and the survey went live on February 9, 2022. The survey was open until mid-March 2022.
After the survey closed, GCAP started analyzing the survey responses and drafting a survey report and appendices. There was a total of 34 submissions for the internal survey and 117 submissions for the external survey. The consultant team also started preparing for the second part of the needs assessment phase of the project: interview of key stakeholder groups.
Peninsula Clean Energy staff suggested several stakeholders to interview and then asked GCAP to suggest the remainder based off the open text responses to the survey. Ultimately, 13 stakeholders were chosen for interviews: 5 internal (staff and former staff) and 8 external (Board members, CAC members, program participants and outreach grantees). Stakeholders were interviewed in April and May 2022. GCAP provided a draft survey report to Peninsula Clean Energy staff in early May 2022 and presented the preliminary key findings from the survey to the Citizens Advisory Committee at their meeting on May 12, 2022. GCAP incorporated comments from both staff and the CAC into the final survey report and disaggregated the survey responses for each key finding by demographics at Peninsula Clean Energy’s staff suggestion. The final survey report and appendices were provided to the Board DEAI subcommittee on June 30, 2022 and the subcommittee met on July 7, 2022. GCAP provided a project status update to the Board subcommittee at the July 7 meeting and Peninsula Clean Energy staff asked for any questions or comments from the Board subcommittee on the survey report, appendices, and key observations from the survey at that meeting. At that meeting, subcommittee members decided to have staff share the survey report and appendices with the full Board. The survey report and its 6 appendices were included in the Board packet for the July 28, 2022 Board meeting. At the Board meeting on July 28, the consultant team from GCAP presented a status update on the DEAI project and PCE Staff member Shayna Barnes presented on the high-level takeaways from the needs assessment phase of the project.
414
Item No. 17
Legislative and Regulatory Review
With the needs assessment phase of the project complete, GCAP and the Peninsula Clean Energy project team progressed to completing other project tasks. GCAP provided Peninsula Clean Energy staff with a first draft of the regulatory and legislative analysis of Proposition 209, Senate Bill 255, and General Order 156 as Task 1 of the project. When conducting this legislative and regulatory review, GCAP reviewed Peninsula Clean Energy’s prior two supplier diversity reports, solicitation documents for RFOs and RFPs, our standard contract, and our supplier diversity questionnaire to determine areas for improvement. The initial draft report was reviewed by PCE staff and counsel and returned to GCAP for final edits. Peninsula Clean Energy staff received the final version of this report in late August 2022 and plans to implement its recommendations as part of the DEAI Action Plan starting early next calendar year.
DEAI Policy Development and Stakeholder Review Process
Task 3 of the DEAI scope of work called for the consultant to create a DEAI policy for Peninsula Clean Energy. GCAP completed the first draft of Peninsula Clean Energy’s DEAI policy in early August, incorporating edits from Peninsula Clean Energy executives and the DEAI project team.
The draft DEAI policy used the CAC’s equity statement as a foundation and included themes gleaned from the DEAI needs assessment phase of the project (survey and interviews), and incorporated industry best practices. Peninsula Clean Energy staff and GCAP scheduled 3 workshops during the months of August and September to get stakeholder feedback on the draft DEAI policy.
1. Peninsula Clean Energy staff, August 16
2. Peninsula Clean Energy Board DEAI Subcommittee, August 19
3. Citizens Advisory Committee, Community Based Organizations and the broader community, September 8
The three workshop groups were provided with the draft DEAI policy in advance along with the following discussion prompts to consider:
1. Conceptual / High Level Feedback
a. Is the purpose of the policy clear and complete?
b. Is the scope of the policy accurate and complete?
c. Is the content relevant?
d. Are all known audiences/customers/users of the policy described thoroughly and accurately?
2. Detailed / Low-level feedback
a. Is the flow and structure of the policy logical to follow? b. Is the document concise and clear?
c. Is the terminology understandable by all audiences/customers/users of the policy? d. What relevant content is missing and should be added? e. What content is inaccurate, incomplete, or unclear and should be modified? f. What content is inappropriate and should be removed? For the community workshop (workshop 3 above), Peninsula Clean Energy staff conducted outreach with our community partners to help ensure robust participation in the workshop. Staff also created a temporary webpage: https://www.peninsulacleanenergy.com/deai/ where written 415
Item No. 17
feedback on the policy could be received in different languages to allow people who could not attend to provide comments in an inclusive way.
The PCE DEAI project team and the consultant team received substantive, valuable, feedback from all three workshops. GCAP incorporated the comments from the workshops into a redlined version of the draft policy and grouped the feedback by theme for the PCE project team to consider. The DEAI project team met twice more with Peninsula Clean Energy leadership to consider the feedback received and ultimately developed the final draft policy that is now included in the Board packet for this October meeting.
Other Project Tasks in Progress
GCAP has delivered initial drafts of other project deliverables. This includes a DEAI Action Plan for Peninsula Clean Energy that will be used to operationalize the DEAI policy and create and implement DEAI practices and metrics throughout our organization. GCAP has also suggested edits to the organizational policies and documents mentioned above (Strategic Plan, employee handbook, policies #9 and #10) in addition to our standard contract, supplier diversity questionnaire and solicitation documents. PCE staff are working on reviewing and editing these deliverables and will bring final versions to the Board for approval at a future date.
DISCUSSION:
Peninsula Clean Energy staff recommend the adoption of the Diversity, Equity, Accessibility, and Inclusion (DEAI) Policy as written and provided in the Board packet for this meeting. The policy has been through a thorough stakeholder review and feedback process as described earlier in this memo. In addition, staff brought this final draft version of the DEAI policy back to the most recent CAC meeting for consideration of a recommendation on the policy to the Board of Directors. At their October 13, 2022 Citizens Advisory Committee Meeting, Committee members voted unanimously to recommend approval of the DEAI policy as drafted. Staff are enthused by this endorsement as Peninsula Clean Energy’s DEAI journey started with the CAC. Staff are confident that this policy will serve the organization well as a guiding document as we continue to make progress on DEAI initiatives.
STRATEGIC PLAN:
The DEAI Initiative supports the Organizational Excellence pillar of the strategic plan to ensure organizational excellence by adhering to sustainable business practices and fostering a workplace culture of innovation, diversity, transparency, and integrity. This initiative seeks to support the following objectives and key tactics under this pillar:
Objective A: Culture and People: Foster a workplace culture that attracts and develops exceptional talent and values all people
• Key Tactic 3: Ensure that our recruitment processes are designed to attract high caliber and diverse applicants
Objective D: External Vendor Partners: Implement Vendor Policies that embrace diversity and inclusion and that optimize engagement results
• Key Tactic 1: Develop methods to ensure adherence to the organization’s Inclusive and Sustainable Workforce Policy
• Key Tactic 2: Develop methods to ensure adherence to the organization’s Ethical Vendor Standards Policy
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Item No. 17
This initiative also supports the Community Energy Programs pillar of the strategic plan to implement robust energy programs that reduce greenhouse gas emissions, align energy supply and demand, and provide benefits to community stakeholder groups. The DEAI initiative seeks to support the following objectives and key tactics under this pillar:
Objective B: Community Benefits: Deliver tangible benefits throughout our diverse communities • Key Tactic 1: Invest in programs that benefit underserved communities • Key Tactic 3: Support workforce development programs in the County ATTACHMENTS:
Peninsula Clean Energy Diversity, Equity, Accessibility, and Inclusion (DEAI) Policy 417
1 28637147v1
RESOLUTION NO. _____________
PENINSULA CLEAN ENERGY AUTHORITY, COUNTY OF SAN MATEO, STATE OF
CALIFORNIA
* * * * * *
RESOLUTION ADOPTING PENINSULA CLEAN ENERGY’S DIVERSITY, EQUITY,
ACCESSIBILITY, AND INCLUSION (DEAI) POLICY
______________________________________________________________ RESOLVED, by the Peninsula Clean Energy Authority of the County of San Mateo, State of California, that
WHEREAS, Peninsula Clean Energy was formed on February 29, 2016 and WHEREAS, the Board approved the creation of a Citizens Advisory Committee (“Committee” or “CAC”) on. February 23, 2017, to be appointed by the PCE Board, WHEREAS, the Citizens Advisory Committee formed an Equity Working Group in July 2020 with the primary task of “ensur[ing] equity is a priority across all working groups and built into PCE strategic priorities,”
WHEREAS, the CAC’s Equity Working Group created a draft equity statement and brought it to the Board of Directors at their January 28, 2021 meeting for consideration and adoption; and
WHEREAS, at that meeting the Board of Directors accepted the draft equity statement and formed a Diversity, Equity, Accessibility, and Inclusion (“DEAI”) 418
2 28637147v1
Subcommittee to create a DEAI organizational policy and action plan for Peninsula Clean Energy,
WHEREAS, to create the DEAI organizational policy and action plan Peninsula Clean Energy staff drafted a Request for Proposals (RFP) for DEAI consulting services under direction from the DEAI subcommittee,
WHEREAS, the RFP was released as a competitive solicitation and eight responses were received,
WHEREAS, GCAP Services, Inc. was deemed best fit by staff and the DEAI Subcommittee to meet Peninsula Clean Energy’s range of DEAI needs, WHEREAS, the Board of Directors approved a contract with GCAP Services, Inc. at their meeting on October 28, 2021,
WHEREAS, the Peninsula Clean Energy DEAI project team has worked with GCAP Services, Inc. over the past year on a DEAI needs assessment, regulatory and legislative review, and policy development for Peninsula Clean Energy WHEREAS, GCAP Services, Inc. and the Peninsula Clean Energy DEAI project team drafted a DEAI policy in early August 2022 and conducted stakeholder review of the policy in August and September 2022 in three workshops, WHEREAS, GCAP Services, Inc. and the Peninsula Clean Energy DEAI project team incorporated feedback from all three workshops into a final draft version of the DEAI Policy that is included in the Board packet for the October 27, 2022 meeting, 419
3 28637147v1
WHEREAS, the Peninsula Clean Energy DEAI project team believes the DEAI policy is well-drafted, comprehensively addresses Peninsula Clean Energy’s DEAI action plan, and is responsive to our stakeholder groups’ input, NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED that the Board adopts the Diversity, Equity, Accessibility, and Inclusion (DEAI) Policy. * * * * * *
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Policy Number: 22
Board Adoption: October 27, 2022
Diversity, Equity, Accessibility, and Inclusion (DEAI) Policy
1. Commitment to DEAI
Peninsula Clean Energy has a vision of a sustainable world with clean energy for everyone.
We recognize there are longstanding systemic barriers that impede the advancement of fair and inclusive policies and limit the full participation of historically underserved and disadvantaged communities. This includes our stakeholders that face the most adverse impacts from economic, health, and environmental burdens. Peninsula Clean Energy recognizes that we have an obligation to maximize our efforts to eliminate disparities and ensure that our programs, policies, and practices are inclusive and accessible for everyone in the geographic markets we serve.
Peninsula Clean Energy commits to making diversity, equity, accessibility, and inclusion a priority during decision making. We firmly uphold anti-racism, anti-discrimination, diversity, equity, accessibility, and inclusion as core values. The Peninsula Clean Energy team, including all staff, Board of Directors, committees, and community groups, is committed to this DEAI Policy. This policy is a foundation for operating our business and Peninsula Clean Energy’s goals as detailed in the Strategic Plan 2020-2025.
The Peninsula Clean Energy DEAI Policy 22 will help guide our work in the DEAI space. This document outlines the definitions, application, details, responsibility, administration, and communication of the policy. As the DEAI Policy explains what the agency will do in terms of DEAI initiatives, the DEAI Action Plan will cover how the agency will integrate DEAI initiatives into our programs, policies, and practices and strive towards our mission to reduce greenhouse gas emissions by expanding access to sustainable and affordable energy solutions. Both the DEAI Policy and Action Plan are in compliance with Peninsula Clean Energy’s operational policies.
2. Definitions
a. Diversity: Diversity is the presence of differences in people within any community that may include, but is not limited to race, gender, religion, sexual orientation, ethnicity, nationality, neurodiversity, socioeconomic status, language, (dis)ability, age, or veteran status. An intersectional approach to diversity goes beyond merely counting different kinds of representation in a group, but also recognizes differences in power dynamics between different identities, and how to equitably include and empower individuals from different backgrounds to participate within groups, decision making processes, and social justice movements.
b. Equity: Equity acknowledges historical factors that created oppressive societal structures and recognizes that we do not all start from the same place and must make adjustments to imbalances by providing power or resources to historically oppressed 421
groups and persons. Equity promotes justice, impartiality, and fairness within the procedures, processes, and distribution of resources by institutions or systems. c. Accessibility: Accessibility means persons with disabilities are provided with equal opportunity to acquire the same information, visit the same places, engage in the same interactions, and enjoy the same services as persons without disabilities. Accessibility means a commitment to removing a variety of barriers, including institutional, physical, informational, communication, attitudinal, and cultural. d. Inclusion: Inclusion outcomes are met when your institution, your programs, and you personally are genuinely inviting to all. It is based on the degree to which diverse individuals can participate as appropriate in the decision-making processes and development opportunities within an organization or group thus empowering them.
3. Application
This policy applies to all Peninsula Clean Energy Leadership and Staff, Board of Directors, and Citizens Advisory Committee (CAC) members, and is in compliance with the specifications of Peninsula Clean Energy’s operational policies. a. Roles and Responsibilities
Peninsula Clean Energy Leadership and Staff: Both leadership and staff will be responsible for utilizing the DEAI Policy when implementing the activities and initiatives listed in the DEAI Action Plan.
Board of Directors: The role of the Board of Directors is to provide oversight of policy compliance and ensure that Peninsula Clean Energy staff follow and integrate the DEAI policy within the agency’s programs, policies, and practices. Citizens Advisory Committee (CAC): The role of CAC is to provide comments, advice, and recommendations to improve or enhance DEAI initiatives.
4. Details of Policy
a. DEAI Commitment
Peninsula Clean Energy has established this policy as a commitment to making diversity, equity, accessibility, and inclusion a priority within the organization. The organization commits to developing and supporting equity fluent leadership. This policy will also support the goals and objectives as stated in the DEAI Action Plan, which is a separate strategic document that outlines actions to implement reasonable and achievable DEAI initiatives throughout the organization. b. Recruitment, Promotions, and Retention
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Peninsula Clean Energy will aim to recruit, promote, and retain a qualified diverse workforce that is reflective of the communities we serve, especially workforce populations that are underserved and underrepresented.
Recruitment, promotions, and retention practices should be transparent and in compliance with Peninsula Clean Energy’s human resources and operational policies. c. Onboarding
Peninsula Clean Energy will expand the onboarding process to communicate the organization’s commitment to DEAI and support all employees to feel welcome and have the needed information to thrive at the organization. Additionally, during the onboarding process, Peninsula Clean Energy will inform incoming employees of how they can be involved in the agency’s DEAI efforts.
d. Compensation and Employee Performance Reviews
Peninsula Clean Energy supports fairness in employee compensation and performance reviews.
Peninsula Clean Energy will develop human resource practices to competitively compensate incoming and current employees through salary, benefits, and other amenities that appeal to a diverse workforce.
Additionally, Peninsula Clean Energy will enhance employee performance reviews and include DEAI metrics to measure employee accountability and development.
These metrics will be tied to key performance indicators in the Strategic Plan and will be taken into consideration during compensation adjustments. e. DEAI Learning and Development
Peninsula Clean Energy understands the importance of involving employees in discussions regarding DEAI and ensuring that all employees have access to develop their knowledge, skills, and abilities. All Peninsula Clean Energy leadership, employees, Board, and Citizen Advisory Committee members will participate in formal DEAI learning and development opportunities to expand their knowledge and awareness in the DEAI space.
f. Professional Development
All Peninsula Clean Energy staff will be provided equitable professional development opportunities, including DEAI specific learning, to maintain, improve and strengthen their knowledge, expertise, and competence to perform their job duties and execute on the Strategic Plan.
g. Leadership and Staff Accountability
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Peninsula Clean Energy leadership and staff are expected to support the DEAI Policy and be held accountable for upholding DEAI values throughout the agency.
Through the DEAI Action Plan, Peninsula Clean Energy leadership and staff will establish a list of DEAI priorities and how best to measure results to improve the agency’s programs, policies, and practices. By doing this, Peninsula Clean Energy will be able to collect data to drive and assess the DEAI impact on the organization internally and externally. Peninsula Clean Energy will ensure that the priorities align with the Strategic Plan and ensure leaders are involved in setting DEAI goals.
Peninsula Clean Energy staff will provide a semi-annual progress update to the Board of Directors on DEAI initiatives, and an annual report during the annual Strategic Plan update.
h. Supplier Diversity
Peninsula Clean Energy will make best efforts to encourage the participation and utilization of a diversity of suppliers and vendors on contracts and procurements within the parameters of applicable state and federal law. Peninsula Clean Energy will track and report on its progress regarding small, local, and diverse business entities spend amounts in its annual Supplier Diversity reports to the California Public Utilities Commission (CPUC). Additionally, Peninsula Clean Energy will conduct reasonable research to ensure that the companies that Peninsula Clean Energy works with are also committed to advancing and promoting equity.
This is in compliance with Peninsula Clean Energy’s operational policies and California Proposition 209.
In compliance with Proposition 209, Peninsula Clean Energy does not give preferential treatment based on race, sex, color, ethnicity, or national origin. Peninsula Clean Energy encourages minority-owned, women-owned, veteran-owned, small, and local businesses to respond to solicitations. Peninsula Clean Energy supports the CPUC’s efforts to create supplier diversity and encourages contractors who may qualify to register with the CPUC Supplier Clearinghouse and the Department of General Services Small Business and Disabled Veteran Business Enterprises programs. i. Accessibility
Peninsula Clean Energy is committed to providing equitable access and opportunity to individuals with disabilities in all programs, services, and activities. Peninsula Clean Energy recognizes that in order to have equally effective opportunities and benefits, individuals with disabilities may need reasonable accommodations made to practices and procedures.
Training: Peninsula Clean Energy leadership will be required to participate in DEAI learning and development that includes education on how to hire and create an inclusive culture for people with disabilities as well as 424
respond to accommodation requests made by internal and external stakeholders.
Accommodation Requests: Peninsula Clean Energy will respond to internal and external accommodation requests by providing equitable access to staff and the public. For internal requests, Peninsula Clean Energy will ensure reasonable accommodations are made for employees with disabilities so that they are able to perform the essential duties of their jobs without physical or procedural barriers. For external requests, Peninsula Clean Energy will make a good faith effort to address accommodations by removing barriers to ensure stakeholders have access to public participation in Peninsula Clean Energy programs, services, and activities. Accommodation requests may include, access to public meetings, interpretation/translation language services, large print outreach/program materials, closed captioning/live transcriptions, and accessible public facilities.
Website: Peninsula Clean Energy websites must follow and be compliant with Americans with Disability Act (ADA) and Web Content Accessibility Guidelines (WCAG). The websites should be accessible to people with disabilities and audited at least annually to ensure accessibility. j. Communication & Outreach
Peninsula Clean Energy will utilize an equity lens when developing and distributing communication and outreach materials for programs and projects to improve informational awareness and increase inclusion and accessibility throughout the communities we serve.
Some examples of ensuring equity in Peninsula Clean Energy communications and outreach include, but are not limited to, providing outreach materials in languages needed to reach target populations, using imagery that mirrors the diversity of the communities we serve, using terminology that is gender neutral and respectful, and providing accommodations for people with disabilities and other accessibility needs. k. Energy Programs
Peninsula Clean Energy will adopt policies, programs, and practices to achieve energy equity for low-income and disadvantaged households. These groups may include a disproportionate number of households on fixed incomes and people of color as they utilize a larger share of their income on energy bills, straining budgets and putting these households at a heightened risk of utility shutoffs during times of economic hardships.
Peninsula Clean Energy will seek input and gain feedback from a wide and diverse set of community members when developing policies, programs, and practices. Peninsula Clean Energy will also ensure that programs are designed and evaluated through an 425
equity lens to give underserved and underrepresented communities (all rate payers and program participants) equitable access to Peninsula Clean Energy programs.
These efforts will be in compliance with Peninsula Clean Energy’s operational policies.
5. Party Responsible for Policy
Every part of the organization is responsible for implementing this policy as described in Section 3a, Roles and Responsibilities. In addition, Peninsula Clean Energy will establish a staff-led DEAI Council that will be responsible for operationally implementing this policy throughout the organization.
6. Policy Administration
a. Monitor and Measure
The DEAI Council will monitor and measure all DEAI commitments and initiatives through the DEAI Action Plan and will be responsible for identifying areas of progress and areas needing improvement.
The DEAI Council will also oversee the implementation of the DEAI initiatives and report progress to the Peninsula Clean Energy Board of Directors and leadership team on a semi-annual basis.
b. Implementation
All employees are expected to understand and share the responsibility of upholding the Peninsula Clean Energy DEAI Policy. If an employee or community stakeholder notes that a section of the policy is not being upheld, they should bring it to the attention of Peninsula Clean Energy’s Human Resources Director or one of the members of the DEAI Council. After review by the Human Resources Director or a member of the DEAI Council, concerns will be brought to the attention of Peninsula Clean Energy executive leadership and appropriate action will be taken.
c. Policy Review
The Peninsula Clean Energy DEAI Council will be responsible for performing an annual review of the DEAI Policy and modifying and updating the document if there are any major changes needed. The DEAI Council will present proposed updates to executive leadership and the Board of Directors for their approval.
7. Communication of Policy
The Peninsula Clean Energy DEAI Policy will be posted and available on the Peninsula Clean Energy public website.
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Item No. 18
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DATE: October 17, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: Majority Present
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Leslie Brown, Director of Account Services
SUBJECT: Approval of Addition of “E-ELEC” Rate Tariff for Peninsula Clean Energy Residential Customers
RECOMMENDATION:
Approve a Resolution to implement a new Residential rate tariff, “E-ELEC”, which will be an optional rate effective December 1, 2022 for customers that implement home electrification measures. The “E-ELEC” implementation coincides with the availability of PG&E’s own E-ELEC rate. Peninsula Clean Energy E-ELEC rates will reflect a net 5% discount relative to PG&E Generation Rates for E-ELEC.
BACKGROUND:
On September 1, 2022, PG&E issued Advice Letter 6690-E implementing a new optional Time of Use rate option, E-ELEC, for residential customers pursuing home electrification.
E-ELEC is a voluntary, non-tiered, TOU rate with a fixed charge. E-ELEC will be rolled out to customers in phases over the next 12 months with Phase 1 going live on December 1, 2022. To be eligible for this rate customers will need to have at least one of the following technologies deployed at their home:
• Electric Vehicle
• Energy Storage
• Electric Heat Pump Water Heater or HVAC
Phase 1 of the program will only be available to non-NEM (non net energy metering) customers while PG&E continues to complete IT upgrades to incorporate NEM customers by the fourth quarter of 2023.
PG&E has not yet published a final Advice Letter with updated tariff documents for E-ELEC,. PG&E has stated that an update will be published mid-November ahead of the December 1, 2022 launch. PCE staff will work with our data manager Calpine to prepare 427
Item No. 18
rate tables based on the illustrative rates currently available with the intent that they will be updated before going live on December 1, 2022 once PG&E publishes the final Advice Letter.
FISCAL IMPACT:
The financial impact of this new rate is unknown at this time. PG&E is projecting slow initial uptake as the rate will not initially be available to NEM customers.
STRATEGIC PLAN:
Mirroring PG&E rate structures and offering comparable Peninsula Clean Energy Generation rates with a net 5% discount value proposition is consistent with PCE’s goal to provide customers with cleaner electricity at a lower cost than what would otherwise be provided by PG&E.
428
RESOLUTION NO. _____________
PENINSULA CLEAN ENERGY AUTHORITY, COUNTY OF SAN MATEO,
STATE OF CALIFORNIA
* * * * * *
RESOLUTION AUTHORIZING A NEW PENINSULA CLEAN ENERGY RATE, “E-ELEC” FOR RESIDENTIAL CUSTOMERS EFFECTIVE DECEMBER 1, 2022 TO
MIRROR NEW E-ELEC RATE OFFERING BY PG&E
______________________________________________________________ RESOLVED, by the Peninsula Clean Energy Authority of the County of San Mateo, State of California (“Peninsula Clean Energy” or “PCE”), that WHEREAS, the Peninsula Clean Energy Authority (“PCEA”) was formed on February 29, 2016 as a Community Choice Aggregation program (“CCA”); and WHEREAS, on October 1, 2016 Peninsula Clean Energy began offering service to residents and businesses throughout San Mateo County; WHEREAS, on April 1, 2022 Peninsula Clean Energy began offering service to residents and businesses in the City of Los Banos; and
WHEREAS, the Board has established a set of strategic goals to guide PCE, including maintaining a cost-competitive electric-generation rate for County residents and businesses; and
WHEREAS, on December 1, 2022, PG&E will launch a new residential rate “E-ELEC”; and 429
WHEREAS, PG&E’s new E-ELEC rate necessitates changes to PCE’s rate offerings to match PG&E’s offerings; and
WHEREAS, PCE intends to maintain a net 5% discount in generation charges from what is otherwise available from PG&E.
NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED that the Board authorizes the Chief Executive Officer to implement a new Peninsula Clean Energy ECOplus rate for residential customers, E-ELEC, for San Mateo County and the City of Los Banos, with a net 5% discount in generation charges compared to PG&E, effective December 1, 2022.
* * * * * *
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Item No. 21
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DATE: October 17, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: KJ Janowski, Director of Marketing and Community Relations & Leslie Brown, Director of Account Services
SUBJECT: Update on Marketing, Outreach Activities, and Account Services
BACKGROUND
The Marketing, Community Relations, and Account Services Teams are responsible for enhancing Peninsula Clean Energy’s brand reputation, educating and engaging customers, driving participation in programs, and ensuring customer satisfaction and retention. Tactics include community outreach, content creation and storytelling through owned (e.g. online, social media), earned (e.g. public relations), and paid media (advertising), school engagement programs, and customer care.
DISCUSSION
The following is an update of activities that are currently underway. See “Strategic Plan” section below for how these activities support Peninsula Clean Energy’s strategic plan objectives.
Updated Electric Home Page
The All-Electric Homes page on our website has been updated with an interactive graphic, enhanced content and links to new and increased heat pump rebates.
Zero Percent Loan Program
This program was announced on October 17. The program will be featured in our next Energy Programs Bulletin and featured in digital media outreach. Planning is underway for more extensive promotion.
Heat Pump (HPWH) Rebates
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Item No. 21
Heat pump rebates, including the increase and other changes in the HPWH rebate and a new rebate for heat pump Heating, Ventilation and Air Conditioning (HVAC) systems were announced on October 17. The HPWH page on our website has been updated to include the increased rebate and other program changes that now provide rebates for the use of non-BayREN contractors or do-it-yourself installation.
Heating Ventilation and Air Conditioning (HVAC) rebates are now available and described on this web page. Initial promotion of these rebates includes features in our highly effective Energy Programs Bulletin, digital media outreach and partner media kits.
Planning is underway for more extensive promotion.
Electrification Messaging and Campaign Support of Decarbonization Marketing is developing new messaging centered on encouraging electrification.
Messaging is being refined for a campaign that is planned to start this fall. The campaign will support our organizational priority to contribute to our community reaching a goal of 100% greenhouse gas-free for buildings and transportation by 2035.
Electric Vehicle (EV) Campaign
A search advertising campaign addressing barriers and benefits of electric vehicles has been underway since November 2021. In September, the campaign achieved about 38,500 impressions and brought about 1,970 visits to our EV web pages. Results in October so far are showing an average cost-per-click of $1.85.
Green Homes Tour
Peninsula Clean Energy sponsored a “Green and Electrified Home Tour” organized by Project Green Home and the Campaign for Fossil Free Buildings in Silicon Valley on September 24. Over 800 people registered for the tour, which featured seven homes located in our service territory.
Outreach Grants
We have launched another round of this highly successful program of providing grants to local community-based non-profit organizations that reach out to diverse and hard-to-reach segments of our population. Leveraging trusted relationships with their constituencies, they help decipher utility bills, help residents avoid PG&E disconnection, educate residents and influencers about electrification, and promote Peninsula Clean Energy programs. Grants will be awarded in amounts up to $45,000 per project for work to be completed within one year. We received a total of 15 proposals. Awards will be finalized by the end of this calendar year. The grant period is the 2023 calendar year.
Los Banos Update
Our local Los Banos representative Sandra Benetti continues providing information and answering customer questions. She is tabling twice monthly on bill pay dates at Los Banos City Hall and participating in community events, including the October 29 community Halloween festival and movie night.
News & Media
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Item No. 21
Please see the separate memo re: Q3 Media Relations Summary contained in this board packet.
On October 4, we announced the call for submissions for our third annual All-Electric Leader Awards, “Cutting Edge All-Electric Buildings Sought for Annual Awards.” On October 17, we announced the Zero Percent Loan Program and Heat Pump Rebates, “Peninsula Clean Energy Offers New Zero Percent Loans, Rebates for Electric Home Upgrades.” Full coverage of Peninsula Clean Energy in the news can be found on our News & Media webpage.
ENROLLMENT UPDATE
ECO100 Statistics (since September report)
Total ECO100 accounts at end of September: 6,409
ECO100 accounts added in September: 87
ECO100 accounts dropped in September: 49
Total ECO100 accounts at the end of August: 6,371
Enrollment Statistics
Opt-outs during the month of September were 239, which is 1 more than the previous month of August (238). This includes 197 opt outs in our new service territory of Los Banos during the month of September and 42 from San Mateo County during this month.
In October, there have been an additional 59 opt outs from Los Banos and 13 opt outs from San Mateo County as of October 14th, 2022. Total participation rate across all of San Mateo County as of October 14th was 97.00%.
In addition to the County of San Mateo, there are a total of 15 ECO100 cities. The ECO100 towns and cities as of October 14th, 2022, include: Atherton, Belmont, Brisbane, Burlingame, Colma, Foster City, Half Moon Bay, Hillsborough, Menlo Park, Millbrae, Portola Valley, Redwood City, San Carlos, San Mateo, and Woodside.
The opt-up rates below include municipal accounts, which may noticeably increase the rate in smaller jurisdictions.
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Item No. 21
Table reflects data as of October 14th, 2022
In the above table, the participation rate for the City of Los Banos is at 89%. This number is artificially low due to us conducting a rolling enrollment for our NEM customers in Los Banos. 533 Los Banos NEM customers have yet to be enrolled in Peninsula Clean Energy service. They will be enrolled monthly on their true-up month with PG&E from November through December. These accounts are included in the Eligible Count column but are not currently active Peninsula Clean Energy customers, and are therefore not included in the Active Count column. The opt-out rate from Los Banos customers who received enrollment notices is currently at 6.5%.
Los Banos Enrollment Notices
The first set of Los Banos enrollment notices was mailed to customers February 14th, 2022, and the second set of enrollment notices was mailed March 8th, 2022. Four sets of enrollment notices are required to be mailed to our future customers in the City of Los Banos; two must be sent pre-enrollment (60 days before and 30 days before), and the other two must be sent post-enrollment (30 days after and 60 days after). Peninsula Clean Energy staff created separate pre-enrollment notices for standard customers, NEM customers, and DAC-GT customers in the City of Los Banos. Our standard welcome postcard will be used as the two required post-enrollment notices.
STRATEGIC PLAN
This section describes how the above Marketing and Community Care activities and enrollment statistics relate to the overall goal and objectives laid out in the strategic plan.
The table indicates which objectives and particular Key Tactics are supported by each of the Items/Projects discussed in this memo. The strategic goal for Marketing and 434
Item No. 21
Customer Care is: Develop a strong brand reputation that drives participation in Peninsula Clean Energy’s programs and ensures customer satisfaction and retention.
Item/Project
Objective A:
Elevate Peninsula
Clean Energy’s
brand reputation as
a trusted leader in
the community and
the industry
Objective B:
Educate and
engage
stakeholders in
order to gather
input, inspire action
and drive program
participation
Objective C:
Ensure high
customer
satisfaction and
retention
Social Media Policy KT3 Tell the story
of Peninsula Clean
Energy through
diverse channels
HPWH Incentive KT6: Promote
programs and
services, including
community energy
programs and
premium energy
services
Electrification
Messaging Project
KT5: Provide
inspirational,
informative content
that spurs action to
reduce emissions.
EV Campaign KT6 (see above)
Building
Electrification
Awareness Program
KT6 (see above)
Los Banos UpdateE-bikes for EveryoneKT4: Engage
community through
participation in
local events
KT6 (see above)
CAC
RecruitmentLos
Banos Update
KT4: Engage
community through
participation in
local events
KT4: Support the
Citizens Advisory
Committee
News and Media
AnnouncementsCAC
Recruitment
KT1: Position
leadership as
experts on CCAs
and the industry
KT2: Cultivate
relationships with
industry media and
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Item No. 21
influencers
KT3 (see above)
ECO100 and
Enrollment
StatisticsNews and
Media
Announcements
KT1: Position
leadership as
experts on CCAs
and the industry
KT2: Cultivate
relationships with
industry media and
influencers
KT3 (see above)
Reports on main
objective C
ECO100 and
Enrollment Statistics
Reports on main
objective C
* “KT” refers to Key Tactic
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Item No. 22
1 PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DATE: October 14, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: KJ Janowski, Director, Director of Marketing and Community Relations Darren Goode, Media Relations Consultant
SUBJECT: Third Quarter (Q3) 2022 Media Relations Summary
BACKGROUND
Media Relations, a specialization within the Marketing discipline, focuses on enhancing Peninsula Clean Energy’s reputation and leadership position by garnering earned media attention. This is the third of a series of quarterly reports on media relations activities and coverage for 2022.
DISCUSSION
1. Spotlighting 24/7 Renewable Power
Jan Pepper showcased our 24/7 renewables effort at a workshop hosted by the World Resources Institute, also featuring the National Renewable Energy Laboratory and National Hydropower Association.
We also accepted an invitation for Jan to speak at New Project Media’s US Energy Storage Development & Finance Forum on October 26 in San Diego. We believe this is a direct result of our earned media engagement with them (see more on that below).
While Jan will be speaking specifically to a crowd of developers and other experts about our storage needs and challenges, she will also address how that fits into our broader 24/7 effort.
Sara Maata participated in a panel discussion and workshop with Google’s clean energy planning lead and others at the Renewable Energy Markets (REM) 2022 gathering in Minneapolis about how we have put together 24/7 renewable procurement strategies and deals.
2. 5-Year Anniversary Resolution Announcement
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Item No. 22
2 We issued a press release to spotlight the state legislature resolution honoring the five-year anniversary of Peninsula Clean Energy first delivering power to all of San Mateo County. The press release featured State Senator Josh Becker, Assemblymembers Kevin Mullin, Marc Berman and Phil Ting, Dave Pine, Carole Groom and Jan. Several elected officials highlighted it as well on social media, including Senator Becker.
3. Community Outreach Grants
We announced that applications are welcome from non-profit community-based organizations for grants of up to $45,000 per project to support environmental education, community outreach and other services in our San Mateo County and the city of Los Banos in 2023. CalCCA included the announcement in their daily newsletter to the Regulatory Committee.
4. Green Access Program Release
We announced our Green Access Program has so far saved more than 1,000 customers $191,000 since February, with an average monthly savings of $41.45 per customer. The Westside Express in Los Banos is planning to run an article.
5. Green Access Solar Project Joint Release
We began discussions with Renewable America about a joint release planned for Oct. 25 detailing our planned solar array project in Merced County’s Dos Palos that is tied to the Green Access Program.
6. Los Banos Outreach
We held on–the-record meetings with the Los Banos Enterprise and Westside Express featuring Jan and Sandra Benetti. That led to an op-ed from Sandra that was published in the Los Banos Enterprise: Los Banos residents can now receive cleaner electricity for less (on page 6).
7. All-Electric Building Awards Joint Release
We have drafted and finalized a release with the New Buildings Institute announcing the call for entries for our third-annual joint awards program. We are also working with NBI on future media outreach to showcase past winners.
8. SECC Member Blog Spotlight
We drafted and published a blog on the Smart Energy Consumer Collaborative website as part of their monthly member spotlight series.
9. New Project Media
We worked with New Project Media regarding their follow-up coverage of CPUC’s new RA framework. We also provided an interview and other information from Peter Levitt and Jeremy Waen for two New Project Media inquiries regarding CPUC Resource Adequacy and net metering, and an update on our public facilities RFP.
10. New CFO Announcement
We announced our new chief financial officer, Kristina Alagar Cordero in a release featuring both her and Jan.
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3 11. Sharing Decarbonization Plan
We shared via Twitter our 2035 decarbonization plan as presented at the September board meeting.
12. New Climate Law Impacts
We began exploring how the new federal climate law will benefit our programs and customers. The most immediate benefit may be regarding allowing public government agencies to receive a 30-percent solar investment tax credit as a direct payment from the government. Previously, government agencies did not have access to the tax credit because public agencies do not pay taxes. We are exploring doing an announcement in the fall as we are likely to be among the first public agencies in the U.S. to announce plans to use direct pay.
13. Gilead ECO100 promotion
We have been discussing with Gilead about highlighting their ECO100 membership and broader sustainability efforts in a blog and via social media.
14. Impossible Foods ECO100 promotion
We have discussed with Impossible Foods and EBCE about potentially doing joint CCA promotion of Impossible Foods ECO100 and similar EBCE clean power memberships.
15. Phillip SFGate Call
Phillip Kobernick spoke with an SFGate reporter about e-bikes. The conversation was overarching and seemed intended more for research than a short-term article.
16. More Media
Cold feet on a warming planet, San Mateo Daily Journal letter to the editor, Sept. 26 San Mateo to reduce use of gas in homes, businesses, San Mateo Daily Journal, Sept. 22 Ebikes: A snapshot of today, Silicon Valley Bicycle Coalition, Sept. 21 14-acre biotech, mixed-use site moves ahead in South SF, San Mateo Daily Journal, Sept. 20
Love going electric, San Mateo Daily Journal letter to the editor, Sept. 19 Greener choices, greener codes - San Mateo Daily Journal op-ed, Sept. 16 Half Moon Bay e-bike survey weighing new trail use, San Mateo Daily Journal, Sept. 6 San Mateo moving to all-electric future, San Mateo Daily Journal, Aug. 29 Five candidates are running for Portola Valley Town Council, Aug. 18, The Almanac Electric car rebates and incentives: What to know by state, Kelley Blue Book, Aug. 5 Can Californians afford electric cars?, CalMatters, Aug. 3 New rule requires solar panels in many Half Moon Bay buildings, Half Moon Bay Review, July 19
European energy crisis spurs maritime fueling innovation, Forbes, July 15 $4.5 million state grant sparks Menlo Park’s conversion to all-electric buildings, The Almanac, July 7
California Aggregator Newsletter: Summer 2022 - CalCCA
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4 STRATEGIC PLAN
This section describes how Media Relations activities relate to the overall goal and objectives laid out in the strategic plan. Media Relations The strategic goal for Marketing and Customer Care is: Develop a strong brand reputation that drives participation in Peninsula Clean Energy’s programs and ensures customer satisfaction and retention. Media Relations’ efforts relate specifically to Objectives A and B in the strategic plan.
Item/Project
Objective A: Elevate Peninsula
Clean Energy’s brand
reputation as a trusted leader in
the community and the industry
Objective B: Educate and engage
stakeholders in order to gather
input, inspire action and drive
program participation
Items 1, 9, 11, 15 KT1: Position leadership as
experts on CCAs and the
industry
Item 6, 15 KT2: Cultivate relationships
with industry media and
influencers
Items 1-8, 10-14,
16 KT3: Tell the story of Peninsula
Clean Energy through diverse
channels
Item 13 KT5: Provide inspirational,
informative content that spurs
action to reduce emissions
* “KT” refers to Key Tactic
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Item No. 23
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DATE: October 14, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority (PCE) Board of Directors FROM: Jeremy Waen, Director of Regulatory Policy
Doug Karpa, Senior Regulatory Analyst
Matthew Rutherford, Senior Regulatory Analyst
Zsuzsanna Klara, Regulatory Compliance Analyst
SUBJECT: Update Regarding Regulatory Policy Activities
SUMMARY
Over the last month the Regulatory Policy team continues to be busy. Jeremy has focused his time across supporting organizational needs and hiring for his department’s new Regulatory Compliance Analyst position. Doug has been particularly heavily focused on work to reform the California Public Utilities Commission’s (CPUC) Resource Adequacy construct. Matthew has continued his work in supporting PCE’s programmatic efforts through Transportation Electrification, Building Decarbonization, Resiliency, Supplier Diversity, and DAC-Green Tariff matters. Zsuzsanna started building a comprehensive reference document about PCE’s compliance filings and discussed compliance programs and best practices throughout the organization.
DEEPER DIVE
Regulatory Compliance
On the 1st of October Zsuzsanna sent the Power Content Label and the supporting documentation to the CEC. Worked with the Marketing team and the Power Resources team to gather the necessary documentation.
On the 5th of October filed an initial remediation plan to the CPUC regarding the obligations of the CPUC decisions D-1911016, D20-12-044, and D21-06-035, detailing the source of the delay to meet certain procurement requirements, and when they can expect to have met these requirements.
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2 In the last weeks Zsuzsanna worked with the Power Resources team on the text of the IRP Narrative and managed the timeline for the timely filing.
Zsuzsanna works on a comprehensive reference document, a checklist for PCE’s compliance filings, which will help keep track of the many requirements PCE needs to meet, and create an internal knowledge base about the filing processes. This document will be a reference where teams can find information about the due dates, project charters, timelines and link to the documentations in the current and past projects. Another document Zsuzsanna works on is a Compliance Guidebook that will contain relevant and detailed information about the different compliance obligations PCE needs to meet.
Zsuzsanna has discussions within the organization about compliance projects and looks for the best tools and processes to create more effective and automatized ways to handle these obligations.
Transportation Electrification
On Friday, October 14, 2022, the CPUC issued a long-awaited proposed decision in the Development of Rates and Infrastructure for Vehicle Electrification Order Instituting Rulemaking (DRIVE OIR). The DRIVE OIR was opened in December 2018 by the CPUC to address all manner of transportation electrification (TE) issues, with a particular focus on the Transportation Electrification Framework (TEF) which would serve as an overarching policy model for utility investments and rates related to TE.
This included investments and customer programs related to behind the meter (BTM) equipment such as EV charging infrastructure and managing EV charging load, among others. The Joint CCAs engaged in this proceeding have long advocated that CCAs should be permitted to serve as Program Administrators (PAs) under the TEF framework which would require those CCAs to meet the same regulatory compliance standards as the IOUs but would also allow CCAs to seek CPUC-regulated ratepayer funding for their approved programs and investments.
In February 2022, the CPUC issued a new Staff Proposal which would shift the responsibility for the development and administration of these customer-facing BTM programs to a new statewide rebate program that would be administered by a third party. The Joint CCAs proposed that CCAs should be permitted to design the incentives provided for customers within our service areas, as well as perform the technical assistance (TA) that is typically required for a customer to participate in programs like these.
On October 14, 2022, the CPUC issued a new Proposed Decision (PD) which rejects the majority of the Joint CCA positions. The PD would permit CCAs to subcontract to serve in certain administrative and marketing, education, and administration (ME&O) roles. It would also permit CCAs to submit bids for local equity-focused TE pilots that are not duplicative of the statewide rebate program. Finally, the IOUs are given sole authority to provide TA for the statewide rebate program.
The Joint CCAs are meeting to discuss the PD and engagement strategy. Comments are due on November 3.
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3 (Public Policy Objective A, Key Tactic 1, Key Tactic 2, and Key Tactic 3) Building Decarbonization
On September 20, 2022, the CPUC issued a decision in the Building Decarbonization docket that adopted a staff proposal to eliminate all methane gas line extension allowances, 10-year refundable payment options, and 50 percent discount payment options (collectively, “line extension subsidies”) for all new service applications submitted on or after July 1, 2023. These line extension subsidies are paid for by the IOUs, recorded as capital costs (meaning that the IOUs earn a rate of return on these subsidies), and then recovered from methane gas line customers through rates.
PCE and a group of Joint CCAs had filed comments in support of the staff proposal when it was issued in November 2021. The Staff Proposal clarifies that building developers that desire a new methane gas line service will continued to be permitted to do so, only without receiving any line extension subsidies. The Proposal estimates that eliminating these subsidies will save hundreds of millions of methane gas ratepayer dollars while also being more consistent with the State’s GHG emission goals by encouraging more all-electric building construction and help eliminate the development of more long-lived methane gas distribution infrastructure which is likely to become a stranded asset as the building sector moves towards electrification. Finally, the Staff Proposal estimates that eliminating these subsidies will only result in a 0.32-0.36% increase in costs for residential and non-residential properties that elect to have methane gas service. The Decision does allow certain projects to receive methane line extension subsides through an annual CPUC application process. Projects will need to meet very difficult criteria, such as leading to a demonstrable reduction in GHG emissions.
(Public Policy Objective A, Key Tactic 1, Key Tactic 2, and Key Tactic 3) Integrated Resource Planning & Resource Adequacy
The Resource Adequacy (RA) proceeding has concluded the working group workshop series earlier this month. Dr. Karpa is working with our CCA partners and CalCCA to incorporate recommendations for an hourly load obligation trading system to be tested during the 24-hour RA methodology test year in 2024.
On October 7, the CPUC proposed the next Transmission Planning Process portfolio to include a reduction of the 2030 GHG target from 38 MMT used in the 21-22 cycle to 30MMT and including a high EV load forecast.
(Public Policy Objective A, Key Tactic 1, and Key Tactic 2; Public Policy Objective C, Key Tactic 3)
Stakeholder Outreach
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4 Dr. Karpa hosted the regular monthly call with staff from CCAs and environmental and environmental justice stakeholders on October 7, 2022, to discuss concerns the stakeholders may have with the staff options ruling exploring forward procurement programs in the Integrated Resources Planning process.
(Public Policy Objective A, Key Tactic 2)
FISCAL IMPACT
Not applicable.
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Item No. 24
PENINSULA CLEAN ENERGY AUTHORITY
Board Correspondence
DATE: October 14, 2021
BOARD MEETING DATE: October 27, 2021
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority (PCE) Board of Directors FROM: Marc Hershman, Director of Government Affairs
SUBJECT: Update on PCE’s September and October Legislative Activities SACRAMENTO SUMMARY – End of 2022 Session:
The 2022 session of the California Legislature ended on August 31. The Legislature is now adjourned until December 5, 2022. September 30 was the last day on which the governor could sign, or veto, bills passed by the Legislature.
Much of the drama associated with the end-of-session concerned climate legislation In 2022, much as we saw in 2021, supplemental budget bills and additional measures providing policy guidance to the budget act – known as trailer bills - continued to be negotiated by the Legislature and the Administration into the final days of the legislative session.
As we reported in September, the budget bills include an $859 million energy package that provides, among other spending, $162 million to support the Equitable Building Decarbonization program of which $50 million is allocated for the TECH initiative, $235 million to support zero emission vehicles and infrastructure and $45 million for offshore wind infrastructure, and $100 million to support the industrial Grid Support and Decarbonization Program at the California Energy Commission.
In early August, notably with only weeks remaining in the 2022 session, the governor set forth what he called his 2022 climate legislative proposals. With only days remaining in the legislative session, each of the governor’s proposals found a legislative vehicle:
Governor Newsom’s 6 Proposals and their eventual legislative vehicles:
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o AB 2133 (Quirk) – would require the California Air Resources Board to ensure that GHG emissions were reduced to at least 55% below their 1990 level by 2030 (an increase from the previous target of 40%). o AB 1279 (Muratsuchi) – codifies a prior Executive Order and declares it the state’s policy to achieve net-zero GHG emissions by 2045, with at least an 85% reduction in GHG emissions and to achieve and maintain net zero GHG emissions thereafter.
o SB 1137 (Gonzalez) – establishes a 3,200-foot setback requirement between new oil wells and places where people live or work, including schools.
o SB 1020 (Laird) – sets interim clean energy targets of 90% by 2035 and 95% by 2040.
o SB 905 (Caballero & Skinner) – established a framework for capture, utilization, and storage of compressed carbon dioxide (carbon capture and storage).
o SB 846 (Dodd) – this bill authorizes the extension of the Diablo Canyon Nuclear Power Plant for an additional 5 years. It also authorized a loan of $1.4 billion from the state to PG&E to keep Diablo Canyon operating, with $600 appropriated immediately. The bill includes an expedited process for relicensing the facility and included specific collections from PG&E and other electric ratepayers.
Receiving far and away the most attention of the governor’s bills was the legislation to extend the life of the Diablo Canyon Nuclear Power Plant. The effort to extend Diablo Canyon highlighted an estimated 1.8 GW energy shortfall by 2025. The costs associated with the extension are unknown, as are power prices. However, any costs associated with the extension will be borne by all California ratepayers, although the increase for PG&E ratepayers will be twice the amount paid by others in the state.
When the proposal was initially discussed concern was expressed regarding the size of the benefit that would be realized by PG&E shareholders. Others emphasized the need to accelerate the development of renewable energy resources and storage.
Cited as a reason to act at this time was the desire to get the process moving so that the proper approvals could be in place by 2025, when Diablo Canyon is scheduled to be fully decommissioned, and the availability of federal funding which had to be applied for by a September 6 deadline.
Opponents expressed concern that there have not been sufficient studies of the need for extending Diablo Canyon and that the draft proposal would override environmental protection laws. Further argument was made that there is sufficient time to undertake environmental and other analysis before the 2025 decommissioning deadline and it was 446
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pointed out that there would be a high cost to ratepayers and taxpayers and a substantial benefit to PG&E and its shareholders.
Ultimately, all the governor’s climate legislative proposals, including the reauthorization of Diablo Canyon, passed both houses of the Legislature except for AB 2133, which passed in the Senate but failed in the Assembly.
Another bill of great interest to Peninsula Clean Energy is SB 1158 (Becker). SB 1158 would mandate the hourly reporting of GHG intensity of load serving entities like Peninsula Clean Energy. It would also require the LSE to report the GHG profile of its Resource Adequacy portfolios.
Peninsula Clean Energy supported SB 1158 and the bill’s goal of improving transparency of LSE progress in meeting its GHG reduction goals, noting that it reflects our organizations 24/7 goals.
Peninsula Clean Energy weighed in with support for SB 1158 when it was heard and passed in the Senate Committee on Energy, Utilities and Communications and we provided lead testimony at hearings before the Assembly Committee on Utilities and Energy and again when the bill was heard by the Assembly Committee on Natural Resources. SB 1158 passed both the Senate and the Assembly and now sits on the governor’s desk awaiting his consideration. Peninsula Clean Energy has submitted a letter to the governor asking him to favorably consider SB 1158. A copy of that letter is included with this report.
In late September, Governor Newsom signed SB 1158 into law.
RECENT DEVELOPMENTS IN SACRAMENTO:
On October 7, Governor Newsom called a special legislative session to address rebates to offset ever increasing prices for gasoline, with the rebates to be funded by a windfall profits tax on oil companies. The special session will commence on December 5, timed to coincide with the swearing-in of the new Legislature and the start of the new legislative session. The special session will run concurrent with the new legislative session.
On October 17, Governor Newsom announced that the COVID-19 State of Emergency will end on February 28, 2023. In so doing the Governor offered that this timeline would provide the healthcare system with flexibility to handle any potential surge in COVID-19 cases during the winter months and give sufficient time to prepare for the phaseout of the emergency order.
Of significance to local government, including Peninsula Clean Energy, the termination of the State of Emergency will end the suspension of the Brown Act that has enabled virtual attendance at meetings by elected officials from undisclosed, remote locations. 447
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A LOOK AHEAD AT 2023 LEGISLATIVE ACTIVITY IN SACRAMENTO:
While the legislative calendar for the year ahead has yet to be announced, the Legislature is scheduled to meet on Monday, December 5 to convene the 2023-24 legislative session. At that time, the members of the Legislature who are beginning new terms are sworn into office, there is an opportunity to introduce some legislation and the leadership team in each house is established. In addition to the special session, of particular interest this year is the possible contest for Speaker of the Assembly.
Once the legislative leadership is in place, committee chairs and members are appointed. It is anticipated that there will be many freshman legislators coming to Sacramento due to term limits and redistricting, and therefore many new faces on critical committees. For instance, San Mateo County and Los Banos will both have new representatives in the state Assembly. We also expect many new staff will be hired to support legislators in their work.
Of keen interest to Peninsula Clean Energy is the vacancy in the chair position and new composition of the Senate Committee on Energy, Utilities and Communications and the Assembly Committee on Utilities and Energy. There will be at least 3 vacant seats on the Senate committee and the Assembly committee will have at least 4 vacant seats that need to be filled.
In the coming weeks we will be meeting with legislators and their staff to discuss legislative initiatives for 2023, an effort that will ramp up further once the election results are known. Already identified by Governor Newsom as a concern is the likelihood of a shrinking state budget should markets continue to stagnate, thus reducing the capital gains taxes the state collects and which are a significant source of state revenues. (Public Policy Objective B, Key Tactic 1)
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PENINSULA CLEAN ENERGY
JPA Board Correspondence
DATE: October 21, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Jan Pepper, Chief Executive Officer, Peninsula Clean Energy Rafael Reyes, Director of Energy Programs
SUBJECT: Community Programs Report
SUMMARY
The following programs are in progress, and detailed information is provided below:
1. Building and EV Reach Codes
2. Buildings Programs
2.1. Appliance Rebates and On-Bill Financing
2.2. Low-Income Home Upgrades & Electrification
2.3. Building Pilots
2.4. Refrigerator Recycling
3. Distributed Energy Programs
3.1. Local Government Solar
3.2. Power On Peninsula – Homeowner
3.3. FLEXmarket
3.4. Community Solar, DAC-GT
4. Transportation Programs
4.1. “EV Ready” Charging Incentive
4.2. Used EV Rebate
4.3. EV Ride & Drives/EV Rental Rebate
4.4. E-Bikes for Everyone Rebate
4.5. Municipal Fleets
4.6. Transportation Pilots
DETAIL
1 Building and EV Reach Codes
Background: In 2018 the Board approved a building “reach code” initiative to support local governments in adopting enhancements to the building code for low-carbon and EV ready buildings. The initiative is a joint project with Silicon Valley Clean Energy (SVCE) and East Bay Community Energy (EBCE). The program includes small grants to 449
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municipalities, technical assistance, and tools, including model codes developed with significant community input. The tools and model code language are available on the project website (www.BayAreaReachCodes.org).
In addition, in January 2020 the Board approved an extension of the reach code technical assistance plus additional elements – Education and training for developers and contractors, and consumer education program on the benefits of all-electric buildings.
This technical assistance is publicly available at www.AllElectricDesign.org. In December 2020, the Board approved to extend the contract with TRC Engineers include technical assistance for developing policy for existing buildings. In February 2022 the Board extended the initiative for another two years.
SVCE and Joint Venture Silicon Valley are planning a webinar in September specifically for local elected officials on new and existing building Reach Codes. San Mateo elected officials will be invited to attend.
Model Code Summary
• New construction building electrification codes require all-electric and include a menu of exceptions for cities to choose from • New construction EV codes are the same as last cycle for most building types, requiring more access than the state code. Multi-family buildings are required to provide at least one level 2 charging access point for every dwelling unit. 15% must be Level 2 charging stations. 85% can be low-power Level 2 EV ready. • Existing building model codes provide a full menu of options for cities to choose from, including: end of flow requirements, time-of-replacement mandates, time of sale disclosure requirements, and a requirement to upgrade existing EV-capable circuits to EV-ready by a time-certain deadline.
Status:
• New Construction Codes: Draft new and existing model codes are available. • Existing Building Decarbonization: Existing building model codes are posted online. During a poll at a City Staff workshop, 64% of respondents stated that they were interested in exploring an existing building reach code. • City Progress: Most cities with reach codes from the prior cycle have begun the renewal process. The following cities are currently advancing code updates:
o New construction: County of San Mateo, Atherton, Belmont, Brisbane, Burlingame, Colma, Daly City, Half Moon Bay, Menlo Park, Millbrae, Pacifica, Portola Valley, Redwood City, San Bruno (adopted on first reading), San Carlos (adopted on first reading) and City of San Mateo.
o Existing buildings: Portola Valley (adopted on first reading), City of San Mateo, Brisbane, Menlo Park (slated for next year.)
Strategic Plan:
Goal 3 – Community Energy Programs
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Objective A: Decarbonization Programs: Develop market momentum for electric transportation, and initiate the transition to clean energy buildings • Key Tactic 3: Ensure nearly all new construction is all-electric and EV ready • Key Tactic 4: Establish preference for all-electric building design and appliance replacement among consumers and building stakeholders
2 Buildings Programs
2.1 Appliance Rebates and Zero Percent Loans
Background: In May 2020, the Board approved a 4-year, $6.1 million for electrifying existing buildings. This included $2.8 million for implementing an appliance rebate program. Peninsula Clean Energy successfully launched the heat pump water heater rebates on January 01, 2021 for San Mateo County residents. Peninsula Clean Energy rebates was exclusively offered in partnership with BayREN’s Home+ program. BayREN offers a rebate of $1,000 and Peninsula Clean Energy offered an additional rebate of $1,000 for methane gas to heat pump water heater (HPWH) or $500 for electric resistance to HPWH. Peninsula Clean Energy also offers a $1,000 bonus rebate for CARE/FERA customers and rebate up to $1,500 for electrical panel upgrades that might be needed to accommodate the HPWH. Additionally, in August 2021, the Board approved an On-Bill Financing program (now referred to as the Zero Percent Loan program) with $1.0 million in loan capital (treated as a balance sheet asset and not part of the annual budget). The program will offer qualified residential customers a 0% interest loan up to $10,000 to fund the cost of eligible electrification and complementary electrical and energy efficiency upgrades. The program launched October 17, 2022.
Status: The Appliance Rebate Program, initially focused on HPWH rebates, was launched on January 01, 2021 and as of October 13, 2022 has issued 299 HPWH rebates, which amounts to $418,000 or 15% of the total program budget. Overall, the Peninsula Clean Energy program accounts for approximately 32% of the HPWHs installed across the 9-county Bay Area since 2019. Peninsula Clean Energy has been promoting the incentive through digital ads, email outreach and other channels. The statewide TECH program that had been providing HPWH, heat pump HVAC, and panel upgrade incentives throughout 2022 ran out of funding in PG&E service territory in May.
BayREN still offers additional rebates for San Mateo County residents for installing HPWH and some heat pump HVAC equipment that can be combined with Peninsula Clean Energy’s rebates.
Peninsula Clean Energy rolled out modifications and enhancements to the Appliance Rebates Program on October 17, 2022. Those include:
1. Increase HPWH rebate: previously, residents in San Mateo County making the switch from a methane gas water heater to a HPWH are eligible for $2,000 in rebates ($1,000 from Peninsula Clean Energy and $1,000 from BayREN). In Los Banos, residents are only eligible for Peninsula Clean Energy’s incentives. Before 451
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the statewide TECH program ran out of funding, the combined rebates in both territories were between $3,100 - $3,800. Based on Peninsula Clean Energy and BayREN data on water heater installations in San Mateo County and the Bay Area, the median installed cost (equipment + labor) of a HPWH is $6,000 and $2,000 for a methane gas tank water heater. With the objective of reaching cost parity, Peninsula Clean Energy rebate increased its HPWH rebate to $3,000, making the total available $4,000 when factoring in the BayREN rebate. Los Banos is not in BayREN territory so not eligible for BayREN incentives. Peninsula Clean Energy is studying whether the total incentives for Los Banos could be made equivalent to those available in San Mateo County.
2. Add heat pump heating ventilation and air conditioning (HP HVAC) rebate:
Peninsula Clean Energy had not offered a HP HVAC rebate to date. Before it ran out of funding, TECH offered a $3,000 rebate. Based on BayREN and TECH data, the median installed cost (equipment + labor) of a HP HVAC system is $19,000.
Based on our research, this is $500-3,000 more expensive than adding or replacing air conditioning in the same home. Peninsula Clean Energy added a $3,500 rebate for HP HVAC installations. This will provide support important for proposed existing building electrification codes being considered by multiple cities, which requires new or replaced air conditioners to be heat pumps capable of heating and cooling.
3. Simplify electrical panel rebates:Peninsula Clean Energy panel upgrade rebates up to $1,500 had varied according to the type of panel upgrade (main panel or subpanel) and the capacity of it (amperage). The nuanced rebate structure was a common point of confusion for contractors. With the objective of simplifying the structure, the rebate is now $1,500 irrespective of type. Before it ran out of funding, TECH offered an additional $1,300 rebate making the total combined amount to $2,800. Based on data from Peninsula Clean Energy HPWH projects with panel upgrades, the average cost of a panel upgrade is $3,700.
4. Run a temporary marketing bonus: in 2021, Peninsula Clean Energy ran time limited “bonus” rebates for projects that were completed before a certain date (September 30th). This bonus, paired with a robust marketing campaign, was very effective in driving volume. In the month the bonus expired, the number of installations doubled from that of the previous rate. A new marketing bonus of $500 for both HPWH and HP HVAC installs completed by March 31, 2023 will again be put in place to drive volume and motivation for customer action.
5. Offer rebates to all customers irrespective of contractor used: when the program was launched in San Mateo County on January 1, 2021, it was fully integrated with the BayREN Home+ program, meaning customers could only access the Peninsula Clean Energy rebates if they worked with a BayREN-approved contractor. The program was set up this way to streamline the application experience by allowing contractors to submit a single application (through BayREN) on behalf of the customer to get the rebates from both programs. Since BayREN does not operate in Los Banos a separate rebate application, directly through Peninsula Clean Energy, was created for Los Banos 452
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residents on April 1, 2022. This meant that in Los Banos, residents were always able to work with any contractor or even install the equipment themselves, and still be able to access the Peninsula Clean Energy rebate. Peninsula Clean Energy has now made this option available to San Mateo County residents as well so they will be able to access the rebates if working with a non-BayREN-approved contractor or installing it themselves. City permits for the installed equipment will be required as part of the application process. The integrated BayREN process will remain, however, as it will continue to be the most streamlined way for customers to access all rebates available through a single application and make use of the experienced electrification contractors who are BayREN-approved.
The cost of electrifying water heating and space heating are higher than doing a gas-to-gas replacement. Incentive support is important to reduce customer costs enabling existing building reach code policy adoption without undue burden to residents. Staff is making these modifications to A) bring fuel switching/electrification to at least cost parity with gas replacements, B) backstop the loss of TECH incentives, and C) support the adoption of existing building reach codes.
Lastly, Peninsula Clean Energy launched the Zero Percent Financing programconcurrently with the Appliance Rebates Program modifications and enhancements noted above as the two programs are highly interconnected. Customers will be able to get rebates and finance the net project cost through this program.
Strategic Plan:
Goal 3 – Community Energy Programs
Objective A: Decarbonization Programs: Develop market momentum for electric transportation, and initiate the transition to clean energy buildings • Key Tactic 4: Establish preference for all-electric building design and appliance replacement among consumers and building stakeholders
2.2 (Low-Income) Home Upgrade Program
Background: In May 2020, the Board approved $2 million for implementing a turn-key low-income home upgrade program to offer minor home repair, energy efficiency, and electrification measures to income-qualified homeowners at no cost to them. The measures implemented in each home will vary depending on the home’s needs but will include at least one electrification measure such as installing a HPWH or replacing a gas stove with an electric induction stove. The contract with the administration and implementation firm, Richard Heath & Associates (RHA), was executed after being approved by the Board in the March 2021 meeting.
Status: The program was announced on September 28, 2021. The below table summarizes the program’s status as of August 31, 2022.
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Stage/category #s as of August 31, 2022
Leads 938
Reached 393
Pre-assessments 278
Enrolled 217
Ineligible 181
Installations in progress 32
Fully complete 66
The following table summarizes the number of electrification measures implemented on the fully complete homes.
Measure Count
Heat pump water heater 28
Induction cooktop/range 15
Electric dryer 19
Central or mini split heat pump (HVAC) 3
Window or wall mounted heat pump (HVAC) 7
Portable heat pump (HVAC) 20
Strategic Plan:
Goal 3 – Community Energy Programs
Objective B: Community Benefits: Deliver tangible benefits throughout our diverse communities
• Key Tactic 1: Invest in programs that benefit underserved communities • Key Tactic 3: Support workforce development programs in the County
2.3 Building Pilots
Background: In May 2020, The Board approved $300,000 for piloting a new innovative technology from Harvest Thermal Inc., a Bay Area-based startup, that combines residential space and water heating into a unified heat pump electric system with a single water storage tank. Through this project, this technology will be installed in 3-5 homes within the San Mateo County to assess its performance and demonstrate its effectiveness for emission reductions.
Status: The home recruitment process began in late April 2021 and the project received 290 applications. Homes were selected based on technical criteria (home characteristics, energy usage patterns, and technical feasible of the upgrade within budget). The four pilot homes are located in Daly City, South San Francisco, Redwood City, and Menlo Park. As of September 7, 2022, all four homes have had their system installed. The consulting firm TRC has been contracted to provide independent measurement and verification services for the project and have begun collecting data on the homes installed. 454
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A final report is anticipated in the summer of 2023 after a year a data has been collected and analyzed. Lastly, the Technical Advisory Committee (TAC) had its third meeting on August 31, 2022, following the second meeting on June 2, 2022 and first meeting on September 30, 2021. The objective of the TAC is to review and provided feedback on the project. TAC members include former building officials, former contractor, city commissioner, peer CCA program managers, CPUC staff, CAC member and Board member Jeff Aalfs. Senator Josh Becker toured a Harvest Thermal home and Home Upgrade home on July 20th with PCE staff in attendance.
Strategic Plan:
Goal 3 – Community Energy Programs
Objective C: Innovation and Scale: Leverage leadership, innovation, and regulatory action for scaled impact
• Key Tactic 1: Identify, pilot, and develop innovative solutions for decarbonization
2.4 Refrigerator Recycling
Background: In April 2019, Peninsula Clean Energy launched a small turnkey refrigerator recycling program with a budget of $75,000 as part of the Community Pilots program. The program administrator, ARCA Recycling, manages orders intake, pick up scheduling, and rebate processing. The objective of the program is to capture high impact greenhouse gas gases from old appliances by facilitating proper recycling of the appliance’s refrigerants and foaming agents for insulation (which also continue refrigerants). The initial program budget was exhausted in May but in June 2022, following Board approval, staff executed a contract amendment to continue, and expand the program with an additional budget of $200,000 over three years (FY23-FY25). The contract amendment includes adding more appliance types (air conditioning units, and allowing non-working units to be eligible) and allowing for bulk pickups from apartment complexes and waste distribution centers.
Status: Since inception in April 2019, the recycling program has recycled 606 refrigerators and freezers resulting in approximately 1,000 MTCO2e in greenhouse gas reduction.
Strategic Plan:
Goal 3 – Community Energy Programs
Objective A: Decarbonization Programs: Develop market momentum for electric transportation, and initiate the transition to clean energy buildings • Key Tactic 4: Establish preference for all-electric building design and appliance replacement among consumers and building stakeholders
3 Distributed Energy Programs
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Peninsula Clean Energy has Board-approved strategies for the promotion of 20 MW of new distributed energy resources in San Mateo County and is advancing distributed energy resources to provide resilience, lower decarbonization costs, provide load shaping to support our strategic goal for 24/7 renewables. The projects described below are efforts towards meeting both of these goals.
3.1 Local Government Solar Program
Background: The Local Government Solar program is aimed at aggregating local government facilities into a group procurement of solar and optionally storage systems.
Peninsula Clean Energy provides no-cost site assessments and preliminary designs as well as manages the procurement process. Participating sites have systems installed as part of power purchase agreements directly with Peninsula Clean Energy. As part of the pilot phase, in October 2020, the Board approved a Solar Site Evaluation Services contract with McCalmont Engineering for Solar site evaluation and designs for County and municipal facilities identified as candidates for solar-only or solar + storage resilience projects. In March 2022, the board approved up to $8 million in capital for system installations to be repaid over 20 years and $600,000 for technical assistance on the second round of the aggregated solar program. Peninsula Clean Energy developed a portfolio of 15 sites in 13 cities for a total portfolio size of approximately 2 MW of solar.
Battery storage will be explored for 4 of the 15 sites. Commitments for the projects were secured from all 13 local governments. A Request for Proposals for equipment was conducted and closed in August.
Status:
Peninsula Clean Energy has completed its RFP evaluation process and has selected Intermountain Electric Company to be the Engineering, Procurement, and Construction (EPC) contractor to deploy the solar and battery storage projects. Staff is currently working with the legal counsel and the contractor on an agreement.
The recent passage of the Inflation Reduction Act (IRA) provides for qualifying tax-exempt entities to receive the Investment Tax Credit (ITC) directly (Direct Pay). Previously, partnership with a Tax Equity firm would have been required to monetize and share in the ITC. Staff completed due diligence on this new legislation and the potential for Peninsula Clean Energy to pursue the Direct Pay option, working in conjunction with its legal counsels, and has elected to move forward with direct ownership / direct pay option due to the enhanced financial benefit that can accrue to customers via a lower PPA price. 456
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Staff in conjunction with legal counsel is currently working on a revised Customer Power Purchase Agreement (PPA) based on feedback from all participating jurisdictions to its original draft sent in August, 2022. This will be the agreement between Peninsula Clean Energy and site hosts for the installation and operations of solar and, where applicable, solar + storage systems. This will be a 20-year agreement at a fixed $/kWh price that will provide substantial savings over the current PG&E rate for all customers, and savings will increase with time if utility rates escalates, as is expected.
Staff is planning the next round of the Local Government Solar Program. This will include an expansion of eligible agencies. In addition to the county and cities, school districts and other local public agencies in Peninsula Clean Energy’s service territory will be eligible.
A webinar for school districts interested in the program will take place on Thursday, October 27, and a webinar for other public agencies interested in the program will take place on Thursday, November 3.
3.2 Power On Peninsula – Homeowner
Background: Power on Peninsula – Homeowner is a solar+storage energy resiliency program run by Peninsula Clean Energy in partnership with Sunrun. This program provides energy storage systems paired with solar power to single family and multifamily Peninsula Clean Energy customers. Customers who sign up for this program receive an incentive up to $500. At Peninsula Clean Energy’s direction, Sunrun will dispatch the stored energy during evening hours when renewable generation on the California grid is low and electricity prices are high. This will also help Peninsula Clean Energy to reduce its peak load and thereby reduce our resource adequacy requirements.
Status: The program has commenced dispatching customer batteries in the evening to help reduce Peninsula Clean Energy’s net peak. Sunrun is continuing to enroll new customers throughout 2022. The program is being impacted by supply chain issues including contractor, materials, and product supply and cost. Sunrun has significantly increased effective dispatch of battery systems as part of the Peninsula Clean Energy Load Modification agreement and this dispatch has been very supportive of state needs during recent statewide Flex Alerts.
3.3 FLEXmarket
Background: In November 2021 the Board approved a program plan for the establishment of an innovative “virtual power plant” using what is known as FLEXmarket.
FLEXmarket is a market-based program structure that provides incentives to program “aggregators” to implement programs for energy efficiency and load shaping. The novel elements of the structure include a “pay-for-performance” approach which only provides incentives on confirmed performance using meter data. This novel structure was innovated by MCE and is also being implemented by East Bay Community Energy and Sonoma Clean Power. In addition, the program plan was developed for submission to the CPUC to allow Peninsula Clean Energy to run the program with fully reimbursed funding 457
Item No. 25
through the CPUC. Peninsula Clean Energy’s billing data services provider Calpine has entered into a strategic partnership with the firm Recurve to provide FLEXmarket services through a streamlined structure.
Status: Peninsula Clean Energy’s proposed FLEXmarket program was approved by the CPUC on May 5th and the Board approved the contract with Calpine to implement the program in June. In September, Peninsula Clean Energy and Calpine signed the Second Amendment to the Master Services Agreement to enable the development and launch of the FLEXmarket program. Staff is planning to launch the residential FLEXmarket program in early 2023, with the commercial program intended to follow shortly thereafter.
Strategic Plan:
• Distributed Energy Resources: Support strategic decarbonization and local power • Key Tactic 1: Create minimum of 20 MW of new local renewable power sources in PCE service territory by 2025
• Key Tactic 2: Support distributed energy resources to lower costs, support reliability, and advance distributed and grid decarbonization • Key Tactic 3: Foster Resilience
3.4 Community Solar, DAC-GT
Background: The Disadvantaged Communities Green Tariff program (“DAC-GT”) and associated Community Solar Green Tariff (“CSGT”) are community solar programs developed by the California Public Utilities Commission (CPUC) to enable DAC residents to participate in renewable energy projects, and to promote development of renewable projects in DACs. Participating customers will receive a 20% discount on their full electric bill (PG&E and Peninsula Clean Energy charges). Peninsula Clean Energy administers these programs on behalf of its customers.
Peninsula Clean Energy began enrolling DAC-GT customers in San Mateo County in January 2022 and customers in Los Banos in April 2022. Those customers are currently served by an interim resource procured from Marin Clean Energy pending Peninsula Clean Energy’s procurement of a new renewable resource for the program.
Per the CPUC DAC program guidelines, Peninsula Clean Energy is authorized to procure up to 3MW of solar capacity. Until a new solar resource is procured, Peninsula Clean Energy will serve customers from MCE’s interim resource. Peninsula Clean Energy executed a PPA with Marin Clean Energy for its existing Goose Lake Solar project, which meets DAC program guidelines, to provide for its DAC customers until a permanent resource is procured.
Status: Peninsula Clean Energy ran an RFP for new renewable resources sited in qualifying DACs in November 2021. Seven DAC-GT projects were offered from four bidders. No CSGT offers were received. Peninsula Clean Energy selected the Dos Palos Clean Power project from this solicitation, and, following Board approval in August 2022, 458
Item No. 25
signed a PPA for that resource with Renewable America, LLC. The Dos Palos Clean Power project is a 3MW solar resource located in Dos Palos, CA, approximately 15 miles southeast of the City of Los Banos. The Dos Palos solar resource has a Commercial Operation Date of August 1, 2023.
4 Transportation Programs
4.1 Used EV Rebate Program
Background: Launched in March 2019, the Used EV Rebate Program (formerly referred to as “DriveForward Electric”) provided an incentive up to $4,000 for the purchase of used plug-in hybrid electric vehicles (PHEVs) and full battery electric vehicles (BEVs) to income-qualified San Mateo County residents (those making 400% of the Federal Poverty Level or less). The incentives may be combined with other state-funded income-qualified EV incentive programs. In October 2020, the Board approved expanding the program to offer used EV incentives to all San Mateo County and Los Banos residents, while maintaining the increased incentives for income-qualified residents. In February 2021, Peninsula Clean Energy executed a competitively bid contract with GRID Alternatives (“GRID”) to administer the expanded program. The ‘old’ program incentivized 105 rebates from March 2019 through August 2021. In August 2021, the program was officially re-launched. In March 2022, staff made modifications to the program to adjust to market conditions (I.e. high used vehicle prices). Modifications included raising the eligible vehicle price cap from $25,000 to $35,000 and increasing the rebate amount for income-qualified residents by $2,000 taking the maximum rebate amount to $6,000.
Status: Since the re-launch of the program in August 2021 and as of October 14, 2022, 121 rebates have been provided under the new program and 300+ customers are actively in the pipeline (customers must apply prior to purchase). Since the increased incentives were put in place in March, the program has a substantial increase in applications, doubling the pace from prior months.
Strategic Plan:
Goal 3 – Community Energy Programs
Objective A: Decarbonization Programs: Develop market momentum for electric transportation, and initiate the transition to clean energy buildings • Key Tactic 1: Drive personal electrified transportation to majority adoption Objective B: Community Benefits: Deliver tangible benefits throughout our diverse communities
• Key Tactic 1: Invest in programs that benefit underserved communities
4.2 “EV Ready” Charging Incentive Program
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Background: In December 2018 the Board approved $16 million over four years for EV charging infrastructure incentives ($12 million), technical assistance ($2 million), workforce development ($1 million), and administrative costs ($1 million). Subsequent to authorization of funding, Peninsula Clean Energy successfully applied to the California Energy Commission (CEC) for the CEC to invest an additional $12 million in San Mateo County for EV charging infrastructure. Of Peninsula Clean Energy’s $12 million in incentives, $8 million was previously administered through the CEC’s California Electric Vehicle Incentive Project (CALeVIP) and $4 million under a dedicated, complementary Peninsula Clean Energy incentive fund. The dedicated Peninsula Clean Energy incentives address Level 1 charging, assigned parking in multi-family dwellings, affordable housing new construction, public agency new construction, and charging for resiliency purposes. In August, Peninsula Clean Energy elected to directly administer the not yet approved pool of funds that were previously administered through CALeVIP, worth approximately $4 million, further described below.
Status: The program has been significantly impacted by partner and supply chain issues including contractor scheduling materials, and product supply and cost. To address these issues, Peninsula Clean Energy implemented changes in August to expedite installations.
These include providing customers with greater flexibility in selecting contractors, adjusted incentive levels to account for rising costs, and direct management of all Level 2 projects not already approved by the Center for Sustainable Energy in the CALeVIP program (worth approximately $4 million in funding). The CALeVIP projects were notified in late August and are in the process of transferring to PCE direct management.
The program changes were implemented, beginning on August 17, and projects that were in the CALeVIP pipeline were asked to reapply for incentives directly with Peninsula Clean Energy. Peninsula Clean Energy also provided outreach to public agencies and other stakeholders to encourage new sites to apply for these incentives. Since the changes were implemented there has been significant uptake in the program:
• 29 applications received, representing ~$1.4m in incentives and ~400 ports (143 L1, 213 L2 chargers, 20 L2 outlets, and 13 make ready)
• 13 public agency applications received. Notably, 8 new incentives applications received for Belmont-Redwood Shores School District.
• 15 new sites have enrolled in technical assistance (11 multi-family housing sites including 1 Affordable Housing site and 4 public agency sites, including 3 Ravenswood School District sites and a large project at Menlo Park City Hall) Summary of program metrics is outlined in the table below:
Sites/ Applications Ports Incentive Amount
# of sites in PCE Technical
Assistance
161 1,700+ -
# of Technical Assistance site
evaluations approved by PCE
109 2,272 -
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# of funding applications received
in Peninsula Clean Energy
incentive program
81 1,041 $3,522,000
# of funding applications
approved in Peninsula Clean
Energy incentive program
59 840 $2,554,500
# of CALeVIP applications
approved*
54 805
Total # of ports installed 12 260 $902,000
*Includes DCFC and L2 ports: 250 DCFC, 543 L2 ports
Strategic Plan:
Goal 3 – Community Energy Programs
Objective A: Decarbonization Programs: Develop market momentum for electric transportation, and initiate the transition to clean energy buildings • Key Tactic 1: Drive personal electrified transportation to majority adoption • Key Tactic 5: Support local government initiatives to advance decarbonization Objective B: Community Benefits: Deliver tangible benefits throughout our diverse communities
• Key Tactic 3: Support workforce development programs in the County
4.3 E-Bikes for Everyone Rebate Program
Background: The Board initially approved the income-qualified E-Bikes Rebate program in July 2020 with a budget of $300,000, approved an increase of an additional $300,000 in December 2022, and approved a further increase of $150,000 in August 2022, bringing the total program budget to $750,000. The first phase of the program launched in May 2021 and sold out immediately and provided 275 rebates. The second phase is currently underway and will provide up to 470 rebates, including the additional funding approved by the Board of Directors in August to cover the waitlist. The program is available to residents with low to moderate incomes. Silicon Valley Bicycle Coalition is under contract to Peninsula Clean Energy as an outreach and promotional partner and local bike shops are under contract to provide the rebate as a point-of-sale discount to customers. Enrolled bike shops include Summit Bicycles, Mike’s Bikes, Sports Basement, Chain Reaction, Woodside Bike Shop, and E-Bix Annex.
Status: The second round of the program is currently underway. 235+ e-bikes have been purchased. The new round utilizes more targeted outreach with community partners and a lottery method for awarding incentives rather than the first-come, first-served method used in the previous round.
Strategic Plan:
Goal 3 – Community Energy Programs
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Objective A: Decarbonization Programs: Develop market momentum for electric transportation, and initiate the transition to clean energy buildings • Key Tactic 1: Drive personal electrified transportation to majority adoption Objective B: Community Benefits: Deliver tangible benefits throughout our diverse communities
• Key Tactic 1: Invest in programs that benefit underserved communities
4.4 Municipal Fleet Program
Background: The Board approved the Municipal Fleet Program in November 2020. This program will run for three years with a total budget of $900,000 and is comprised of three components to help local agencies begin their fleet electrification efforts: hands-on technical assistance and resources, gap funding, and a vehicle to building resiliency demonstration that will assess the costs and benefits of utilizing fleet EVs as backup power resources for agencies in grid failures and other emergencies. In August 2022, the Board of Directors approved a contract with Optony to assist in administration of this program.
Status: The program has now started A workshop will be held on November 16 to promote the program and recruit local agency fleet managers.
Strategic Plan:
Goal 3 – Community Energy Programs
Objective A: Decarbonization Programs: Develop market momentum for electric transportation and initiate the transition to clean energy buildings • Key Tactic 2: Bolster electrification of fleets and shared transportation • Key Tactic 5: Support local government initiatives to advance decarbonization Objective C: Innovation and Scale: Leverage leadership, innovation, and regulatory action for scaled impact
• Key Tactic 1: Identify, pilot, and develop innovative solutions for decarbonization
4.5 Transportation Pilots
Ride-Hail Electrification Pilot
Background: This pilot, approved by the Board in March 2020, is Peninsula Clean Energy’s first program for the electrification of new mobility options. The project partners with Lyft and FlexDrive, its rental-car partner, to test strategies that encourage the adoption of all-electric vehicles in ride-hailing applications with up to 100 EVs. Because ride-hail vehicles drive much higher than average miles per year, each vehicle in this electrification pilot is expected to save over 2,000 gallons of gas and 20 tons of greenhouse gas emissions per year.
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Status: The 100 EV fleet has been put into service by Lyft and Peninsula Clean Energy is monitoring progress. 175+ unique drivers have already rented them, with each rental averaging over two months. 1.8 million+ all electric miles have been driven so far with an average of 120 miles/day per vehicle, comparable to gas counterparts. Vehicles include a customer-facing placard that informs riders about the pilot and directs them to the PCE website for more information.
EV Managed Charging Pilot
Background: Peninsula Clean Energy aims to facilitate EV charging that avoids expensive and polluting evening hours through “managed charging” systems. This work is in the second phase of a pilot. In 2020, Peninsula Clean Energy ran a proof-of-concept pilot for EV managed charging with startup FlexCharging to test timing of EV charging through vehicle-based telematics. This was a limited pilot with approximately 10 vehicles.
The system utilizes existing Connected Car Apps and allows Peninsula Clean Energy to manage EV charging via algorithms as a non-hardware-based approach to shift more charging to occur during off-peak hours. The pilot is moving to Phase 2 intended for a larger set of 1,000 to 2,000 vehicles. In October of 2021, the Board approved a contract up to $220,000 with the University of California, Davis’ Davis Energy Economics Program (DEEP) to develop and advise on an incentive structure experiment that will be used to inform the Peninsula Clean Energy managed charging program design. This collaboration has been ongoing.
Status: Staff released an RFP for the telematics-based platform for the Phase 2 pilot and are currently finalizing contract negotiations. The contract for the recommended winner will be brought to the Board for approval shortly. A Technical Advisory Committee, consisting of staff from CEC, CPUC, CCAs, and NGOs, is also informing the pilot and held its first meeting mid-February. The pilot is temporarily delayed to allow staff to focus on EV charging program modifications and relaunch, though the contract is expected to be brought to the Board in the fall with a launch in early 2023.
Strategic Plan:
Goal 3 – Community Energy Programs
Community Benefits: Deliver tangible benefits throughout our diverse communities Key Tactic 1: Invest in programs that benefit underserved communities Innovation and Scale: Leverage leadership, innovation and regulatory action for scaled impact
Key Tactic 1. Identify, pilot, and develop innovative solutions for decarbonization Pilot and scale EV load shaping programs to ensure that 50% of energy for EV charging takes places in non-peak hours
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Item No. 26
1 PENINSULA CLEAN ENERGY
JPA Board Correspondence
DATE: October 14, 2022
BOARD MEETING DATE: October 27, 2022
SPECIAL NOTICE/HEARING: None
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Jan Pepper, Chief Executive Officer
SUBJECT: Energy Supply Procurement Report – October 2022
BACKGROUND
This memo summarizes energy procurement agreements entered into by the Chief Executive Officer since the last regular Board meeting in September. This summary is provided to the Board for information purposes only.
DISCUSSION
Execution Month Purpose Counterparty Term
October Purchase of Resource
Adequacy
Pacific Gas & Electric
Company
12 Months
September Purchase of Hedge
Energy
Morgan Stanley Capital Group
Inc.
3 Months
September Purchase of GHG Free
Energy
Avangrid Renewables, LLC 3 Months
October Purchase of Resource
Adequacy
Southern California Edison
Company
8 Months
October Purchase of Resource
Adequacy
Southern California Edison
Company
1 Month
October Purchase of Resource
Adequacy
Southern California Edison
Company
8 Months
October Sale of Resource
Adequacy
Southern California Edison
Company
8 Months
In January 2020, the Board approved the following Policy Number 15 – Energy Supply Procurement Authority.
Policy: “Energy Procurement” shall mean all contracting for energy and energy-related products for PCE, including but not limited to products related to electricity, capacity, energy efficiency, distributed energy resources, demand response, and storage. In Energy Procurement, Peninsula 464
Item No. 26
2 Clean Energy Authority will procure according to the following guidelines:
1) Short-Term Agreements:
a. Chief Executive Officer has authority to approve Energy Procurement contracts with terms of twelve (12) months or less, in addition to contracts for Resource Adequacy that meet the specifications in section (b) and in Table 1 below. b. Chief Executive Officer has authority to approve Energy Procurement contracts for Resource Adequacy that meet PCE’s three (3) year forward capacity obligations measured in MW, which are set annually by the California Public Utilities Commission and the California Independent System Operator for compliance requirements. c. Chief Financial Officer has authority to approve any contract for Resource Adequacy with a term of twelve (12) months or less if the CEO is unavailable and with prior written approval from the CEO.
d. The CEO shall report all such agreements to the PCE board monthly.
Table 1:
2) Medium-Term Agreements: Chief Executive Officer, in consultation with the General Counsel, the Board Chair, and other members of the Board as CEO deems necessary, has the authority to approve Energy Procurement contracts with terms greater than twelve (12) months but not more than five (5) years, in addition to Resource Adequacy contracts as specified in Table 1 above. The CEO shall report all such agreements to the PCE board monthly.
3) Intermediate and Long-Term Agreements: Approval by the PCE Board is required before the CEO enters into Energy Procurement contracts with terms greater than five (5) years. 4) Amendments to Agreements: Chief Executive Officer, in consultation with the General Counsel and the Board Chair, or Board Vice Chair in the event that the Board Chair is unavailable, has authority to execute amendments to Energy Procurement contracts that were previously approved by the Board.
STRATEGIC PLAN
Product Year-Ahead Compliance
Obligation
Term Limit
Local Resource
Adequacy
In years 1 & 2, must demonstrate
capacity to meet 100% of monthly
local obligation for years 1 and 2
and 50% of monthly local obligation
for year 3 by November 31st of the
prior year
Up to 36 months
System Resource
Adequacy
In year 1, must demonstrate
capacity to meet 90% of system
obligation for summer months (May
– September) by November 31st of
the prior year
Up to 12 months
Flexible Resource
Adequacy
In year 1, must demonstrate
capacity to meet 90% of monthly
flexible obligation by November 31st
of the prior year
Up to 12 months
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3 The contracts executed in September and October support the Power Resources Objective A for Low Cost and Stable Power: Develop and implement power supply strategies to procure low-cost, reliable power.
466
California Community Power
70 Garden Court, Suite 300, Monterey, CA 93940 | cacommunitypower.org A Joint Powers Agency whose members are:
Central Coast Community Energy | CleanPowerSF | East Bay Community Energy | MCE | Peninsula Clean Energy | Redwood Coast Energy Authority | San José Clean Energy | Silicon Valley Clean Energy | Sonoma Clean Power | Valley Clean Energy
TO: CC Power Board of Directors and Alternates DATE: 9/21/2022 FROM: Tim Haines – Interim General Manager
SUBJECT: Report on CC Power Regular Board of Directors Meeting – September 21, 2022 The CC Power Board of Directors held its regularly scheduled meeting on Wednesday, September 21, 2022, via Zoom. Details on the Board packet, presentation materials, and public comment letters can be found under the Meetings tab at the CC Power website: https://cacommunitypower.org Highlights of the meeting included the following:
• Matters subsequent to posting the Agenda. None.
• Public Comment. None.
• Consent Calendar - The Board unanimously approved the following items:
o Minutes of the Regular Board Meeting held on August 17, 2022. o Resolution 22-09-01 Determination that Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the Proclaimed State of Emergency
• Update from Strategic Business Plan ad hoc Committee
o The update to the Strategic Business Plan was provided by Committee lead Sears and Phyllis Currie, consultant hired to complete the plan. Mr. Sears provided an overview of the process and schedule. Of note is the plan will be based on the current statement of purpose of CC Power. The ad hoc committee intended to reflect on this decision in future steps. Ms. Phyllis Currie reviewed the preliminary feedback from interviews she has conducted with some Board members, the key objectives that have been identified to date, near- and longer-term opportunities and challenges, and programs that the plan should not include in the scope. The Board provided feedback on the preliminary finding of the plan and confirmed that the ad hoc Committee should continue as planned. The board took no action. 467
California Community Power
70 Garden Court, Suite 300, Monterey, CA 93940 | cacommunitypower.org A Joint Powers Agency whose members are:
Central Coast Community Energy | CleanPowerSF | East Bay Community Energy | MCE | Peninsula Clean Energy | Redwood Coast Energy Authority | San José Clean Energy | Silicon Valley Clean Energy | Sonoma Clean Power | Valley Clean Energy
TO: CC Power Board of Directors and Alternates DATE: 10/21/2022 FROM: Tim Haines – Interim General Manager
SUBJECT: Report on CC Power Regular Board of Directors Meeting – October 19, 2022 The CC Power Board of Directors held its regularly scheduled meeting on Wednesday, October 19, 2022, via Zoom. Details on the Board packet, presentation materials, and public comment letters can be found under the Meetings tab at the CC Power website: https://cacommunitypower.org Highlights of the meeting included the following:
• Matters subsequent to posting the Agenda. None.
• Public Comment. None.
• Consent Calendar - The Board unanimously approved the following items:
o Minutes of the Regular Board Meeting held on September 21, 2022. o Resolution 22-10-01 Determination that Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the Proclaimed State of Emergency
o Resolution 22-10-02 Acceptance of CC Power 2021 Audited Financials • Update from Strategic Business Plan ad hoc Committee
o Presentation from Independent System Operator CEO Elliot Mainzer. Chair Syphers welcomed Mr. Mainzer and introduced the Board Members. The Chair described the purpose of CC Power, the contracts that it has entered and the intent to engage with CAISO on transmission and market issues related to its projects. He also explained that CAISO should continue to look to CalCCA for matters that are of interest to the broader CCA community. The CAISO President and CEO focused his comments on reforms to Resource Adequacy, transmission planning and efforts to streamline the interconnection queue and responded to Board Member comments and questions.
He and Chair Syphers expressed interest in continued discussions. o Update from Strategic Business Plan ad hoc Committee. The update to the Strategic Business Plan was provided by Committee lead Sears and CC Power consultant Phyllis Currie. Mr. Sears provided an overview of the process and schedule. Ms.
Currie reviewed continuing feedback that she has received from Board members, the key priorities that have been identified to date, provided a list of future programs and services that CC Power will consider and her thoughts on the ordering of priorities in the three-year plan. The Board provided feedback on the preliminary findings and confirmed that the ad hoc Committee should continue as planned. The board took no action.
468
2 o Resolution 22-10-03 Approval of the 2023 Budget and Cash Call and Update the Fiscal Year. Interim General Manager presented the proposed CC Power budget for the first six months of 2023. The $555,102 budget includes funding for a full-time GM and a staff person. The Board discussed the budget and provided direction to the Interim GM. The Board adopted the budget unanimously. o Resolution 22-10-04 Approval of General Manager Authority to Extend and Execute Consulting Contracts in Accordance with CC Power Budgets. The General Counsel presented the Board resolution. The Board directed the Interim General Manager to keep it informed on the contract extension. The Board approved the resolution unanimously.
o General Manager Search Update/Next Steps. The General Manager informed the Board that Members Chaset, Mitchell and he will be on the GM search committee.
The GM Search ad hoc Committee will report back to the Board on its initial thoughts at the November Board meeting.
469
COMMONLY USED ACRONYMS AND KEY TERMS
AB xx – Assembly Bill xx
ALJ – Administrative Law Judge
AMP- Arrears Management Plans
AQM – Air Quality Management
BAAQMD – Bay Area Air Quality Management District
BLPTA – Buyer Liability Pass Through Agreement
CAC – Citizens Advisory Committee
CAISO – California Independent System Operator
CalCCA – California Community Choice Association
CAM – Cost Allocation Mechanism
CAP – Climate Action Plan
CAPP – California Arrearage Payment Program
CARB – California Air Resources Board, or California ARB CARE- California Alternative Rates for Energy Program
CBA – California Balancing Authority
3CE- Central Coast Community Energy (Formerly Monterey Bay Community Power-MBCP) CCA – Community Choice Aggregation (aka Community Choice Programs (CCP) or CCE – Community Choice Energy (CCE)
CCP – Community Choice Programs
CEC – California Energy Commission
CPP- Critical Peak Pricing
CPSF – Clean Power San Francisco
CPUC – California Public Utility Commission (Regulator for state utilities) (Also PUC) CSD – California Department of Community Services and Development CSGT - Community Solar Green Tariff
DA – Direct Access
DAC-GT - Disadvantaged Communities Green Tariff
DER – Distributed Energy Resources
DG – Distributed Generation
DOE – Department of Energy
DR – Demand Response
DRP – Demand Response Provider
DRP/IDER – Distribution Resources Planning / Integrated Distributed Energy Resources EBCE – East Bay Community Energy
ECOplus – PCE’s default electricity product, 50% renewable and 50% carbon-free (in 2021) ECO100 – PCE’s 100% renewable energy product
EDR – Economic Development Rate
EE – Energy Efficiency
EEI – Edison Electric Institute; Standard contract to procure energy & RA EIR – Environmental Impact Report
ELCC – Effective Load Carrying Capability
ESP – Electric Service Provider
470
ESS – Energy Storage Systems
ESSA – Energy Storage Services Agreement
ERRA – Energy Resource Recovery Account
EV – Electric Vehicle
EVSE – Electric Vehicle Supply Equipment (Charging Station) FERA- Family Electric Rate Assistance Program
FERC – Federal Energy Regulatory Commission
FFS – Franchise Fee Surcharge
GHG – Greenhouse gas
GHG-Free – Greenhouse gas free
GTSR – Green Tariff Shared Renewables
GWh – Gigawatt Hours (Energy) = 1000 MWh
IDER – Integrated Distributed Energy Resources
IOU – Investor-Owned Utility (e.g. PG&E, SCE, SDG&E)
IRP – Integrated Resource Plan
IVR – Interactive Voice Response
ITC – Investment Tax Credit (it’s a solar tax credit)
JCC – Joint Cost Comparison
JPA – Joint Powers Authority
JRC – Joint Rate Comparison
JRM – Joint Rate Mailer
kW – kilowatt (Power)
kWh – Kilowatt-hour (Energy)
LDS – Long Duration Storage
LDES – Long Duration Energy Storage
LIHEAP- Low Income Home Energy Assistance Program
Load Shaping – changing when grid energy is used
LSE – Load Serving Entity
MCE – Marin Clean Energy
Methane Gas - formerly known as ‘natural gas’
Microgrid – building or community energy system
MW – Megawatt (Power) = 1000 kW
MWh – Megawatt-hour (Energy) = 1000 kWh
MUD – Multi-unit Dwelling
NBCs – non-bypassable charges
NEM – Net Energy Metering
NERC – North American Electric Reliability Corporation
NDA – Non-Disclosure Agreement
NG – Natural Gas
OBF – On-bill Financing
OBR – On-bill Repayment
OES – Office of Emergency Services
OIR – Order Instituting Rulemaking
PACE – Property Assessed Clean Energy
PCC – Portfolio Content Category (aka “buckets”) – categories for RPS compliance PCC1 – Portfolio Content Category 1 REC (also called bucket 1 REC) PCC2 – Portfolio Content Category 2 REC (also called bucket 2 REC) PCC3 – Portfolio Content Category 3 REC (also called bucket 3 REC or unbundled REC) 471
PCE – Peninsula Clean Energy Authority
PCIA – Power Charge Indifference Adjustment
PCL – Power Content Label
PLA – Project Labor Agreement
POU – Publicly Owned Utility
PPA – Power Purchase Agreement
PPSA – Project Participation Share Agreement (CC Power) PSPS – Public Safety Power Shutoff
PV – Photovoltaics (solar panels)
RA – Resource Adequacy
RE – Renewable Energy
REC – Renewable Energy Credit/Certificate
RICAPS - Regionally Integrated Climate Action Planning Suite RPS – California Renewable Portfolio Standard
SB xx – Senate Bill xx
SCP – Sonoma Clean Power
SJCE – San Jose Clean Energy
SJVAPCD - San Joaquin Valley Air Pollution Control District SMD – Share My Data, interval meter data
SQMD – Settlement Quality Meter Data
SVCE – Silicon Valley Clean Energy
TEF – Transportation Electrification Framework (CPUC Proceeding) TNCs – Transportation Network Companies (ridesharing companies) TOB – Tariff on Bill
TOU RATES – Time of Use Rates
VGI – Vehicle-Grid Integration
V2G – Vehicle-to-Grid
VPP – Virtual Power Plant
WECC – Western Energy Coordinating Council
WREGIS – Western Renewable Energy Generation Information System WSPP – Western Systems Power Pool; standard contract to procure energy and RA 472