6.3 Permits and Approvals. As between Buyer and Seller, Seller shall obtain any required permits and approvals in connection with the development, construction, and operation of the Facility (except for any approvals required of Buyer as SC for 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 (a) Seller is responsible for providing all energy to serve 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 (b) Seller may utilize Energy to serve Station Use to the extent permissible in accordance with the CAISO Tariff and subject to the following requirements and restrictions:
(i) Seller shall not bill Buyer and Buyer will not pay Seller for any Energy that serves Station Use;
(ii) Seller shall separately meter all Station Use to ensure that records and invoices to Buyer are accurate and do not improperly bill Buyer for Energy that serves Station Use and to enable Buyer to invoice Seller for Reimbursable Station Use Payments; (iii) Seller shall ensure that any use of Energy to serve Station Use complies with and does not interfere with or impair Buyer’s or the CAISO’s dispatch of or schedule for the Facility, and if Seller fails to comply with such requirements, then, without prejudice to Buyer’s other rights and remedies hereunder, Seller shall reimburse Buyer for (A) any charges, costs, and penalties imposed by the CAISO for the Facility’s failure to comply with dispatch instructions, the CAISO schedule, or any CAISO requirements; and (B) any loss of revenue if the CAISO adjusts dispatch instructions due to the use of Energy discharged from the Facility to serve Station Use, in each case only to the extent imposed or incurred as a direct result of Seller’s use of Energy discharged from the Facility to serve Station Use; (iv) Seller shall not use Stored Energy to serve Station Use; provided, Seller may use Energy stored in storage capacity installed in excess of the Installed Storage Capacity to serve Station Use during periods when the Facility is not charging or discharging pursuant to a Charging Notice or a Discharging Notice; provided, any use of such excess Energy 282
40 discharged from the Facility for Station Use shall not (A) reduce Seller’s obligations to achieve the Guaranteed Storage Availability and Guaranteed Round-Trip Efficiency, or (B) count toward limits (including daily and/or annual discharging energy limits) specified in the Operating Restrictions; and
(v) Seller shall provide to Buyer upon Buyer’s request all records and data, including detailed meter, charging, discharging, and state of charge data, that may be necessary or useful for Buyer to verify that service of Station Use occurred in compliance with this Section 6.4, and to calculate and verify the accuracy of invoices and amounts required to be reimbursed hereunder.
ARTICLE 7
METERING
7.1 Metering. Subject to Section 7.1(b) (with respect to the entirety of the following Section 7.1(a)), the Facility shall have its own CAISO Resource ID and shall be a CAISO Metered Entity (as defined in the CAISO Tariff). Seller shall measure the Charging Energy and Discharging Energy using the Storage Facility Meter and CAISO approved methodologies. Seller shall measure Station Use using a separate revenue-grade meter (“Station Use Meter”). The Storage Facility Meter and Station Use Meter shall be installed and maintained at Seller’s cost. Metering will be consistent with the Metering Diagram set forth in Exhibit P. The meter(s) 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 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 meters. 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; 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 to the extent available and other 283
41 data sufficient to document and verify the amount of Charging Energy, Discharging Energy and Station Use and Reimbursable Station Use for any Settlement Period during the preceding month, (b) the amount of Product and Replacement RA, if any, delivered to Buyer during the preceding month, and the Storage Rate applicable to such Product and Replacement RA, and (c) 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. Buyer shall, and shall cause its Scheduling Coordinator to, provide Seller with all reasonable access (including, in real time, to the maximum extent reasonably possible) to any records, including invoices or settlement data from the CAISO, forecast data and other information, all as may be necessary from time to time for Seller to prepare and verify the accuracy of all invoices.
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 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 but not more often than twice per Contract Year, 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. 284
42 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 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 under this Agreement 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 any related damages calculated pursuant to Exhibit B, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.
8.7 Seller’s Development Security. To secure Seller’s obligations under this Agreement, including the obligations of Seller to pay liquidated damages to Buyer as provided in this Agreement, Seller shall deliver Development Security to Buyer within Business Days after the Effective Date. Buyer will have the right to draw upon the Development Security if Seller fails to pay liquidated damages owed to Buyer pursuant to Exhibit B to this Agreement, or if Seller fails to pay a Damage Payment or Termination Payment owed to Buyer pursuant to Section 11.2. Seller shall maintain the Development Security in full force and effect and Seller shall replenish the Development Security in the event Buyer collects or draws down any portion of the Development Security for any reason permitted under this Agreement other than to satisfy a Damage Payment or 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 Development 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 Commercial Operation Date.
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 285
43 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, and indemnification payments or other damages, in each case of a determined amount, 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 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.
8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security, 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 Development Security or Performance Security, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 8.9):
(a) Exercise any of its rights and remedies with respect to the Development Security and Performance Security, including any such rights and remedies under Law then in effect;
(b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Development Security or Performance Security; and (c) Liquidate all Development Security or Performance Security (as applicable) then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller to the extent of damages or other amounts owed by Seller to Buyer hereunder.
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. 286
44 ARTICLE 9
NOTICES
9.1 Addresses for the Delivery of Notices. Any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth in Exhibit R or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.
9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail, facsimile, or other electronic means) and either (i) the receiving Party sends a written acknowledgment of receipt, or (ii) 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 commercially 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 commercially reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; 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. 287
45 (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 Storage Rate unprofitable or otherwise uneconomic (including an increase in component or compliance costs for any reason, including foreign or domestic tariffs, Buyer’s ability to buy Product at a lower price or Seller’s ability to sell Product at a higher price); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above 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 failure except if such equipment failure is caused by a Force Majeure Event; (viii) variations in weather, including wind, rain and insolation, within one in fifty (1 in 50) year occurrence as of the Effective Date; or (ix) failure to complete the Interconnection Facilities or network upgrades required to connect the Facility and to deliver Product to the Delivery Point by the Guaranteed Commercial Operation Date except to the extent such inability is caused by a Force Majeure Event; or (x) Seller’s inability to achieve Construction Start of the Facility following the Guaranteed Construction Start Date or achieve Commercial Operation following the Guaranteed Commercial Operation Date, it being understood and agreed that the occurrence of a Force Majeure Event may give rise to a Development Cure Period.
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. 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 288
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48 Failure, (b) during the three hundred sixty five (365) day period following the date of such Transformer Failure Seller diligently pursues a cure to such Transformer Failure and delivers to Buyer a certificate from a Licensed Professional Engineer within thirty (30) days following the date of the Transformer Failure that cure can be made within such three hundred sixty five (365) day period, and (c) Seller completes the cure of such Transformer Failure within such three hundred sixty five (365) day period; provided further, such opportunity to cure a default under this Section
11.1(b)(v) (and under Section 11.1(b)(iii)) shall only be allowed for one Transformer failure during the Contract Term;
(vi) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8, including the failure to replenish the Development 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 Damage Payment or a Termination Payment, if such failure is not remedied within five (5) Business Days after Notice thereof; (vii) except for the Other Facility, if at any time Seller owns, operates or manages any equipment, facility, property or other asset, other than the Facility or engages in any business or activity other than the development, financing, ownership or operation of the Facility, entering into this Agreement with Buyer and other ancillary agreements, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, including with respect to the Shared Facilities;
(viii) 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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49 (G) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit.
11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred , the other Party (“Non-Defaulting Party”) shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages the Damage Payment or the Termination Payment, as applicable, in accordance with Section 11.3;
(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 Damage Payment; Termination Payment.
(a) For an Early Termination Date designated as a result of a Seller Event of Default prior to the Commercial Operation Date, Buyer shall be entitled to the Damage Payment, pursuant to Section 11.2(b)(i), which shall be equal to the entire Development Security amount and any interest accrued thereon. Buyer shall be entitled to immediately retain for its own benefit those funds held as Development Security and any interest accrued thereon, and any amount of Development Security that Seller has not yet posted with Buyer shall be immediately due and payable by Seller to Buyer. There will be no amounts owed to Seller. The Parties agree that Buyer’s damages in the event of an Early Termination Date prior to the Commercial Operation Date caused by Seller’s default would be difficult or impossible to determine and that the damages set forth in this Section 11.3(a)(i) are a reasonable approximation of Buyer’s harm or loss. (b) For all other Events of Default, 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 292
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53 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.
EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, INCLUDING PARAGRAPH 19.3, THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY
DAMAGES AND THE EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN
ADEQUATE REMEDY FOR THE BREACH BY THE OTHER OF THE TERMS OF THIS
AGREEMENT, AND EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC
PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY
13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, 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 will be located in the State of California. 296
54 (f) The Facility has been allocated FCDS for the Guaranteed Capacity, subject to Seller achieving CAISO Commercial Operation.
13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. All persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and other Law.
(b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, including but not limited to community choice aggregation, the Joint Powers Act, competitive bidding, public notice, open meetings, election, referendum, or prior appropriation requirements, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound.
(d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by Laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim and affirmatively waives 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.
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55 13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(a) It shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and to be qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall maintain (or obtain from time to time as required) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and 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 construction, 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 construction, 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 not otherwise permitted 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; (b) any Person succeeding to all or substantially all of the assets of Seller (whether voluntary or by operation of law) if, and only if (i) the assignee is a Qualified Transferee; (ii) Seller has given Buyer Notice at least fifteen (15) Business Days before the date of such proposed assignment; and (iii) Seller has provided Buyer a written agreement signed by the Person to which Seller wishes to assign its interests that (x) provides that such Person will assume all of Seller’s obligations and liabilities under this Agreement upon such transfer or assignment and (y) certifies that such Person meets the definition of a Qualified Transferee or (c) 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 298
56 Buyer (except as otherwise provided in this Section 14.2), which consent shall not be unreasonably withheld, conditioned or delayed.
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 equal to or greater than that of Buyer as of the Effective Date, or if Buyer has no Credit Rating, then 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, reasonably acceptable to Seller, 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.
ARTICLE 15
LENDER ACCOMMODATIONS
15.1 Granting of Lender Interest. Notwithstanding Section 14.2 or Section 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 299
57 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 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 as 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). The non-granting Party shall accept a cure performed by any Lender so long 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. 300
58 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 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.
301
59 ARTICLE 18
INSURANCE
18.1 Insurance.
(a) General. Seller shall comply at all times during the Contract Term with the requirements of Exhibit J.
(b) Subcontractor Insurance. Seller shall require all of its subcontractors to carry: (i) comprehensive general liability insurance in amounts equal to those set forth for Seller in Exhibit J; (ii) workers’ compensation insurance and employers’ liability coverage in accordance with applicable requirements of Law; and (iii) business auto insurance for bodily injury and property damage, in each case, in amounts equal to those set forth for Seller in Exhibit J. All subcontractors shall name Seller as an additional insured to insurance carried pursuant to clauses (f)(i) and (f)(iii). All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 18.1(b). (c) Evidence of Insurance. Within ten (10) Business Days after execution of the Agreement and upon annual renewal thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage. These certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. 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.
(d) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 18, Seller, among other things and without restricting Buyer’s remedies under the Law or otherwise, shall, at its own cost and expense, act as an insurer and provide insurance in accordance with the terms and conditions above. With respect to the required general liability, umbrella liability and commercial automobile liability insurance, Seller shall provide a current, full and complete defense to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees, assigns, and successors in interest, in response to a third-party claim in the same manner that an insurer would have, had the insurance been maintained in accordance with the terms and conditions set forth above. In addition, alleged violations of the provisions of this Article 18 means that Seller has the initial burden of proof regarding any legal justification for refusing or withholding coverage and Seller shall face the same liability and damages as an insurer for wrongfully refusing or withholding coverage in accordance with the laws of California.
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 302
60 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 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 their respective agents, consultants or trustees so long as the Person to whom Confidential Information is disclosed agrees in writing to be bound by confidentiality provisions at least as restrictive as this Article 19 to the same extent as if it were a Party or are otherwise bound by a duty of confidentiality with respect to such Confidential Information.
303
61 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.
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, 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 304
62 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 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. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 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 305
63 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.
306
Exhibit A - 1
EXHIBIT A
DESCRIPTION OF THE FACILITY
Facility Name: Gabriel Storage II
Site Name: Gabriel Storage
Site Description: The site (APN: 8532-002-046) is in the western area of the City of Irwindale, immediately east of I-605, and north of Live Oak Avenue and south of Arrow Highway.
The City of Baldwin Park is located to the southeast. The I-605 Freeway forms the western boundary of the project area with the I-605/Live Oak Avenue interchange located immediately southwest of the project area and the I-605/Arrow Highway interchange located immediately northwest of the project area. The Project Area is the site of a former construction debris landfill.
An inert debris remedial grading operation is bringing the site back to productive use with geotechnically certified fill.
Site Address: N/A
GPS Coordinates: 34.108839, -117.978002
Site Map:
APNs: 8532-002-046
County: Los Angeles County
CEQA Lead Agency: City of Irwindale
307
308
Exhibit B - 1
EXHIBIT B
FACILITY CONSTRUCTION AND COMMERCIAL OPERATION
1. Construction of the Facility.
a. Seller shall cause construction to begin on the Facility by October 1, 2026, (as such date may be extended by the Development Cure Period, the “Guaranteed Construction Start Date”). Seller shall demonstrate the beginning of construction through execution of Seller’s engineering, procurement and construction contract, Seller’s issuance of a notice to proceed under such contract, mobilization to site by Seller and/or its designees, and includes the physical movement of soil at the Site (“Construction Start”). On the date of the beginning of construction (the “Construction Start Date”), Seller shall deliver to Buyer a certificate substantially in the form attached as Exhibit H hereto.
b. If Construction Start is not achieved by the Guaranteed Construction Start Date, Seller shall pay Daily Delay Damages to Buyer on account of such delay. Daily Delay Damages shall be payable for each day for which Construction Start has not begun by the Guaranteed Construction Start Date until the earlier of days after the Guaranteed Construction Start Date, or the date on which Seller reaches Construction Start of the Facility. If Seller anticipates it will not achieve Construction Start by the Guaranteed Construction Start Date, on or before the date that is ten (10) days prior to the Guaranteed Construction Start Date or the date the Daily Delay Damages will no longer cover additional days of delay to achieve Construction Start, as applicable, Seller shall provide notice and payment to Buyer of the Daily Delay Damages for the number of days (or additional days, if Seller has previously paid Daily Delay Damages) by which Seller anticipates the Construction Start Date will be later than the Guaranteed Construction Start Date. Daily Delay Damages shall be refundable to Seller pursuant to Section 2(b) of this Exhibit B. The Parties agree that Buyer’s receipt of Daily Delay Damages shall be Buyer’s sole and exclusive remedy for the first days of the delay in achieving the Construction Start Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s rights pursuant to Section 11.2.
2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement.
The “Commercial Operation Date” shall be the later of (x) six (6) months prior to the Guaranteed Commercial Operation Date, or (y) the date on which Commercial Operation is achieved. a. Seller shall cause Commercial Operation for the Facility to occur by June 1, 2027 (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. b. If Seller achieves Commercial Operation by the Guaranteed Commercial Operation Date, all Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the 309
310
Exhibit B - 3
Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period (other than the extensions granted pursuant to clause 4(c) above) shall not exceed one hundred eighty (180) days, for any reason, and, without limiting the provisions of Section 10.3, no extension shall be given to the extent that (i) the delay was the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines; (ii) Seller failed to provide prompt written notice to Buyer of a delay due to a Force Majeure Event, but in no case more than thirty (30) days after Seller became aware of an actual delay (not including Seller’s receipt of generic notices of potential delays due to a Force Majeure Event) affecting the Facility, except that in the case of a delay occurring within ninety (90) days of the Guaranteed Commercial Operation Date, or after such date, Seller must provide written notice within seven (7) Business Days of Seller becoming aware of such delay; or (iii) Seller failed, upon written request from Buyer, to provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was a result of a Force Majeure Event and did not result from Seller’s actions or failure to take commercially reasonable actions.
5. Failure to Reach Guaranteed Storage Capacity. If, at Commercial Operation, the Installed Storage Capacity is at least ninety-five percent (95%) of the Guaranteed Storage Capacity but less than the Guaranteed Storage Capacity, Seller shall have ninety (90) days after the Commercial Operation Date to install additional storage capacity such that the Installed Storage Capacity is increased, but not to exceed the Guaranteed Storage Capacity. If Seller installs additional storage capacity pursuant to the immediately preceding sentence, Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit G-2 hereto specifying the new Installed Storage Capacity. In the event that the Installed Storage Capacity is still less than the Guaranteed Storage Capacity as of such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Four Hundred Twenty-Five Thousand Dollars ($425,000) for each MW that the Guaranteed Storage Capacity exceeds the Installed Storage Capacity, and the Guaranteed Storage Capacity and other applicable portions of the Agreement shall be reduced based on the ratio of the Installed Storage Capacity as of such date to the original Guaranteed Storage Capacity.
6. Buyer’s Right to Draw on Development Security. If Seller fails to timely pay any Daily Delay Damages or Commercial Operation Delay Damages, Buyer may draw upon the Development Security to satisfy Seller’s payment obligation thereof, and Seller shall replenish the Development Security to its full amount within five (5) Business Days after such draw. 311
Exhibit C - 1
EXHIBIT C
[Intentionally Omitted]
312
Exhibit D - 1
EXHIBIT D
[Intentionally Omitted]
313
Exhibit E - 1
EXHIBIT E
PROGRESS REPORTING FORM
Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Construction Start Date, and (ii) each calendar month from the first calendar month following the Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a written Progress Report in the form specified below.
Each Progress Report must include the following items:
1. Executive summary.
2. Facility description.
3. Site plan of the Facility.
4. Description of any planned changes to the Facility or the Site.
5. Gantt chart schedule showing progress on achieving each of the Milestones.
6. Summary of activities during the previous calendar quarter or month, as applicable, including any OSHA labor hour reports.
7. Forecast of activities scheduled for the current calendar quarter.
8. Written description about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones.
9. List of issues that could potentially affect Seller’s Milestones.
10. A status report of start-up activities including a forecast of activities ongoing and after start-up, a report on Facility performance including performance projections for the next twelve (12) months.
11. Progress and schedule of all agreements, contracts, permits, approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.
12. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services.
13. Workforce Development or Supplier Diversity Reporting (if applicable). Format to be provided by Buyer.
14. Any other documentation reasonably requested by Buyer. 314
Exhibit F - 1
EXHIBIT F
[RESERVED]
315
Exhibit G1 - 1
EXHIBIT G-1
FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by _______[Licensed Professional Engineer] (“Engineer”) to Peninsula Clean Energy Authority (“Buyer”) in accordance with the terms of that certain Energy Storage and Services 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 and commissioned storage equipment with a capacity of at least ninety-five percent (95%) of the Guaranteed Storage Capacity in accordance with Exhibit N of the Agreement.
(2) The Facility is capable of receiving Charging Energy and delivering Discharging Energy to the Delivery Point and commissioning of equipment at the Facility has been completed in accordance with the manufacturer’s specifications.
(3) Authorization to parallel the Facility was obtained by the Participating Transmission Owner, [Name of Participating Transmission Owner as appropriate] on___[DATE]____ (4) The Participating Transmission Owner or Distribution Provider has provided documentation supporting full unrestricted release for Commercial Operation by [Name of Participating Transmission Owner as appropriate] on _______[DATE]_____. (5) The CAISO has provided notification supporting the Facility’s Commercial Operation, inclusion in the Full Network Model and authorization to provide Ancillary Services, all in accordance with the CAISO tariff on _______[DATE]_____. (6) Seller has segregated and separately metered Station Use to the extent reasonably possible in accordance with Prudent Operating Practice, and any such meter(s) have the same or greater level of accuracy as is required for CAISO certified meters used for settlement purposes.
EXECUTED by [licensed professional engineer]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL
ENGINEER]
By:
Its:
Date:
316
Exhibit G2 - 1
EXHIBIT G-2
FORM OF INSTALLED STORAGE CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Storage Capacity is delivered by [Licensed Professional Engineer] (“Engineer”) to PENINSULA CLEAN ENERGY AUTHORITY (“Buyer”) in accordance with the terms of that certain Energy Storage and Services Agreement dated __________ (“Agreement”) by and between [SELLER ENTITY] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
The initial Facility performance test under Seller’s engineering, procurement and construction contract or primary energy storage system supply agreement for the Facility demonstrated peak Facility electrical output of __MW AC at the Delivery Point (“Installed Storage Capacity”).
EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL
ENGINEER]
By:
Its:
Date:
317
Exhibit H - 1
EXHIBIT H
FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification (“Certification”) of the Construction Start Date is delivered by [SELLER ENTITY] (“Seller”) to PENINSULA CLEAN ENERGY AUTHORITY (“Buyer”) in accordance with the terms of that certain Energy Storage and Services Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Seller hereby certifies and represents to Buyer the following:
1. the engineering, procurement and construction contract related to the Facility was executed on __________;
2. the limited notice to proceed with the construction of the Facility was issued on ______________ (attached);
3. the Construction Start Date has occurred;
4. the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site:
_____________________________________________________________________ (such description shall amend the description of the Site in Exhibit A).
IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:
Its:
Date:
318
Exhibit I - 1
EXHIBIT I
FORM OF LETTER OF CREDIT
BANCO SANTANDER, S.A., NEW YORK BRANCH
437 MADISON AVENUE, 6TH FLOOR,
NEW YORK, NY 10022
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date:
Bank Ref.:
Amount: US$[XXXXXXX]
Expiry Date:
Applicant:
[INSERT APPLICANT DETAILS]
Beneficiary:
Peninsula Clean Energy Authority
[Address]
Ladies and Gentlemen:
On behalf of [XXXXXXX] (“Applicant”), we, BANCO SANTANDER, S.A., NEW YORK BRANCH, (“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. 319
Exhibit I - 2
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 (a) in person, by courier or (b) as a PDF attachment to an e-mail to If in person or by courier, at 437 MADISON AVENUE, 6TH FLOOR, NEW YORK, NY 10022. Payment shall be made by Issuer in U.S. dollars with Issuer’s own immediately available funds.
THIS LETTER OF CREDIT MAY BE DELIVERED TO THE BENEFICIARY IN
ELECTRONIC FORM, AND SUCH ELECTRONIC COPY SHALL BE DEEMED TO BE THE ORIGINAL AND VALID FOR PURPOSES OF PRESENTATION HEREUNDER.
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 additional one year periods 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 437 MADISON AVENUE, 6TH FLOOR, NEW YORK, NY 10022, referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s TRADE SERVICES Department at and have this Letter of Credit available.
THIS LETTER OF CREDIT SETS FORTH IN FULL OUR UNDERTAKING, AND SUCH
UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED, AMPLIFIED OR
LIMITED BY REFERENCE TO ANY DOCUMENT, INSTRUMENT OR AGREEMENT REFERRED TO HEREIN.
ALL COMMISSIONS, EXPENSES, AND CHARGES INCURRED WITH THIS LETTER OF CREDIT ARE FOR THE ACCOUNT OF THE APPLICANT.
VERY TRULY YOURS,
320
Exhibit I - 3
BANCO SANTANDER, S.A., NEW YORK BRANCH
_________________________________ _________________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
321
Exhibit I - 4
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
3. 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.
4. 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___________________________
322
Exhibit J - 1
EXHIBIT J
INSURANCE
Liability Insurance
To the fullest extent allowable by law, Seller shall purchase and maintain such insurance as will protect it from the claims set forth below which may arise out of or result from Seller’s operations under this Agreement whether such operations be by itself or by anyone directly or indirectly employed by them, or by anyone for whose acts any of them may be liable. Limits shall be all the Insurance Coverage and/or limits carried by or available to the Seller, the minimum limits as required herein.
General Conditions
Seller shall maintain completed operations liability insurance for the entire Contract Term plus the period of time Seller may be held legally liable for.
Seller shall maintain policies of insurance in full force and effect, at all times during the performance of the Agreement, plus any statute of repose or statute of limitations applicable to the jurisdiction where any work is performed.
All insurance companies shall have a Best’s rating of A-VII or better.
In addition, Seller shall provide Buyer with 45 days’ notice in case of cancellation or non- renewal, except 10 days for non-payment of premium.
Certificates of Insurance Acord Form 25 and all required Endorsements shall be filed with Buyer within ten (10) Business Days of execution of the contract and/or prior to commencement of any work performed.
If requested by the Buyer, Seller shall provide a certified and true copy of any or all policies.
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 or secure such policies or policies of insurance for the account of Seller and charge Seller for the premiums paid therefore, or withhold the amount thereof from sums otherwise due from Buyer to Seller. Neither the Buyer’s rights to secure such policy or policies nor the securing thereof by Buyer shall constitute an undertaking by Buyer on behalf of or for the benefit of Seller or others to determine or warrant that such policies are in effect.
Seller shall be fully and financially responsible for all deductibles or self-insured retentions.
323
Exhibit J - 2
Coverage Forms & Limits
Seller’s Commercial General Liability insurance shall be written on an industry standard Commercial General Liability Occurrence from (CG 00 01, 12/07) or its equivalent and shall include but not be limited to products/completed operations; premises and operations; blanket contractual; advertising/personal injury; independent Buyers.
Coverage shall be on an occurrence form with policy limits of not less than:
$1,000,000 Each Occurrence Bodily Injury & Property Damage $1,000,000 Personal & Advertising Injury
$2,000,000 General Aggregate to apply on a Per Project basis $2,000,000 Products/Completed Operations Aggregate
Business Auto Liability – Coverage shall be no less than that provided by Insurance Services Office, Inc. (ISO) form CA 00 01, written on an occurrence basis to apply to “any auto” or at a minimum “all owned, hired and non-owned autos”, with policy limits of not less than $1,000,000 per accident for bodily injury and property damage.
If applicable, Broadened Pollution for Covered Autos shall apply. This requirement may also be satisfied by providing proof of separate Pollution Liability that includes coverage for transportation exposures.
Workers’ Compensation and (b) employers’ liability – to the extent applicable, Sellers shall provide coverage for industrial injury to their employees (or leased employees as applicable) in strict accordance with the provisions of the State or States in which project work is performed or where jurisdiction is deemed to be applicable. Workers’ Compensation shall be provided in a statutory form on either a state or, where applicable, federal (U.S. Longshore & Harbor Workers Act, Maritime- Jones Act, etc.) basis as required in the applicable jurisdiction.
Such insurance shall be in an amount of not less than:
Workers Compensation: Statutory
Employers Liability
o $1,000,000 Bodily Injury by Accident – Each Accident
o $1,000,000 Bodily Injury by Disease – Total Limit
o $1,000,000 Bodily Injury by Disease – Each Employee
Commercial Umbrella or Excess Liability Insurance over Seller’s primary Commercial General Liability, Business Auto Liability and Employers Liability. All coverage terms required under the Commercial General Liability, Business Auto Liability and Employers Liability above must be included on the Umbrella or Excess Liability Insurance.
Coverage shall be written on an occurrence form with policy limits not less than:
$5,000,000 Each Occurrence
$5,000,000 Personal & Advertising Injury
$5,000,000 Aggregate (where applicable, following the terms of the underlying) 324
Exhibit J - 3
Pollution liability – Seller shall provide evidence prior to the Construction Start Date of Pollution Liability; covering all operations necessary or incidental to the fulfillment of all contract obligations hereunder. Such insurance shall provide coverage for bodily injury, property damage (including loss of use of damaged property or of property that has not been physically injured), clean- up costs and remediation expenses (including costs for investigation, sampling, characterization, and monitoring), legal costs, defense costs, natural resource damage, transportation of pollutants on and off the project site, and non-owned disposal site liability if Seller’s scope of work (or Seller’s consultants) includes the responsibility of manifesting and disposing of contaminated material or waste from its activities. Coverage shall also extend to pollution conditions arising out of the Seller’s operations including coverage for sudden as well as gradual release arising from Seller’s operations including operations of any of its Seller’s or consultants. Such insurance shall provide coverage for wrongful acts, which may arise from all activities from the first point of Seller engagement and shall continue on a practice basis for not less than 36 months after completion, or the period of time Seller may be held legally liable for its work, whichever is longer. The retro date if any such coverage shall be prior to the commencement of Seller’s work.
Such insurance shall be in an amount of not less than $5,000,000 per claim or occurrence and $5,000,000 annual aggregate.
If Seller maintains Pollution Liability limits greater than what is required herein, such limits carried become what we require under this contract.
Professional Liability and/or Errors & Omissions – During construction, Seller shall cause to be maintained by Seller’s balance of plant contractors for the Facility evidence of Professional Liability insurance covering claims that arise from the errors, omissions or acts of the contractors, for the provision of all professional services necessary or incidental to the fulfillment of the contract obligations contractor. Such insurance shall be in an amount of not less than $5,000,000 each claim / $5,000,000 aggregate
The policy shall be effective from the date of commencement of construction in connection with the fulfillment of all contract obligations of contractor. The retroactive date in the current and future policies shall be prior to the commencement of the services. Coverage shall be maintained for a period not less than 48 months following the substantial completion; or an extended reporting period of 48 months following completion of the work shall be purchased.
Additional Insured / Primary-Noncontributory / Waiver of Subrogation Requirements To the fullest extent of coverage allowed under applicable law, Buyer shall be named as additional insured on a primary and non-contributory basis for all required lines of coverage except Statutory Workers Compensation and Professional Liability, arising out of all operations performed by or for the Seller under this Agreement. Buyer shall accept General Liability Additional Insured forms CG 20 10 11/85, CG 20 10 10/01 & CG 20 37 10/01 or their equivalent.
Additional Insured status shall be for all limits carried, not limited to the minimum acceptable as required herein. Seller’s insurance shall be Primary as respects to Buyer and Owner, and any other insurance maintained by Buyer and Owner shall be excess and not contributing insurance with 325
Exhibit J - 4
Seller’s insurance until such time as all limits available under the Seller’s insurance policies have been exhausted.
Additional Insured endorsements that contain comparative fault, vicarious liability or sole negligence limitations of the Buyer / Owner or any other party required by the contract, will not be accepted.
In the event that any policy provided in compliance with this Agreement states that the coverage provided to an additional insured shall be no broader than that required by contract, or words of similar meaning, the Parties agree that nothing in this Agreement is intended to restrict or limit the breadth of coverage or limits available.
The additional insured status shall remain in full force and effect for the Contract Term plus the applicable statute of repose, or the amount of time you are legally liable, whichever is longer.
It is further agreed that the additional insured coverage required under this Agreement shall not be subject to any Defense Costs Endorsements such as Form IL 01 23 11 13, allowing for the recovery of defense costs by the insurer if the insurer initially pays defense costs but later determines the claims are not covered.
Buyer reserves the right, in its sole and subjective discretion, to reject any Additional Insured forms that are deemed not equivalent to what is required herein.
Waiver of Subrogation – Seller shall provide a Waiver of Subrogation Endorsement naming Buyer for all lines of coverage.
Additional Requirements
Property Insurance
Seller shall procure and maintain or ensure that its suppliers procure and maintain, at the Seller’s own expense, Builder’s Risk, property and equipment insurance, including for any property stored off the Site, in transit or any of the Buyer’s property in the care, custody or control of Seller. Seller and Seller’s insurance carrier(s) hereby waive all rights of subrogation against Buyer for damage including loss of use.
Buyer neither represents nor assumes responsibility for the adequacy of the Builders Risk Insurance to protect the interests of the Seller. It shall be the obligation of the Seller to purchase and maintain any supplementary property insurance that it deems necessary to protect its interest in the Work, including without limitation off site stored materials and materials in transit.
Seller is solely responsible for loss or damage to its personal property. 326
Exhibit K - 1
EXHIBIT K
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 Energy Storage and Services 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 3.6(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
327
Exhibit K - 2
[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 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.
328
Exhibit K - 3
“Unit Contract Quantity” means the amount of Resource Adequacy Benefits to be provided to Buyer from the unit in the form of Replacement RA, not to exceed the Installed Storage Capacity. “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 Installed Storage Capacity.
“Unit SCID” means the unit’s “Scheduling Coordinator ID Code”, as defined in the CAISO Tariff. 329
Exhibit L1 - 1
EXHIBIT L1
Monthly Expected Available Storage 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 Expected Available Storage Capacity (MW) per hour – [Insert Month] 1:00* 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1 Day 2 Day 3 Day 4 Day 5 [insert additional rows for each day of the month] Day 26 Day 27 Day 28 Day 29** Day 30** Day 31** *All times are designated as “Hour-Ending [__]”. **Include these rows if needed for each month. 330
Exhibit L2 - 1
EXHIBIT L2
Monthly Expected Available Storage Capability
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 Expected Available Storage Capability (MWh) per hour – [Insert Month] 1:00* 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1 Day 2 Day 3 Day 4 Day 5 [insert additional rows for each day of the month] Day 26 Day 27 Day 28 Day 29** Day 30** Day 31** *All times are designated as “Hour-Ending [__]”. **Include these rows if needed for each month. 331
Exhibit M - 1
EXHIBIT M
MONTHLY STORAGE AVAILABILITY
1. Monthly Storage Availability.
(a) For each monthly period after the Commercial Operation Date, Seller shall calculate the “Monthly Storage Availability” using the formula set forth below:
𝑴𝒐𝒏𝒕𝒉𝒍𝒚 𝑺𝒕𝒐𝒓𝒂𝒈𝒆 𝑨𝒗𝒂𝒊𝒍𝒂𝒃𝒊𝒍𝒊𝒕𝒚 ሺ%ሻ ൌ
𝟏െ 𝑴𝒐𝒏𝒕𝒉𝒍𝒚 𝑼𝒏𝒂𝒗𝒂𝒊𝒍𝒂𝒃𝒍𝒆 𝑪𝒂𝒍𝒄𝒖𝒍𝒂𝒕𝒊𝒐𝒏 𝑰𝒏𝒕𝒆𝒓𝒗𝒂𝒍𝒔
𝑻𝒐𝒕𝒂𝒍 𝑪𝒂𝒍𝒄𝒖𝒍𝒂𝒕𝒊𝒐𝒏 𝑰𝒏𝒕𝒆𝒓𝒗𝒂𝒍𝒔
where:
CALCULATION INTERVAL or “C.I.” = each successive five-minute interval.
SCHEDULED MAINTENANCE INTERVAL = any Calculation Interval that is Scheduled Maintenance in full or in part provided that the sum of all Scheduled Maintenance Percentage divided by twelve (12) in a Contract Year may not exceed fifty (50) hours.
SCHEDULED MAINTENANCE PERCENTAGE = the greater of (a) the Storage Capacity unavailable due to Scheduled Maintenance divided by the Storage Capacity or (b) the quotient of (A) Storage Capability unavailable due to Scheduled Maintenance divided by (B) the product of (i) Storage Capacity and (ii) 8hrs.
MONTHLY UNAVAILABLE CALCULATION INTERVALS = the sum of
all Unavailable Calculation Intervals for the applicable Month.
UNAVAILABLE CALCULATION INTERVAL = For each Calculation Interval, the Unavailable Calculation Interval is defined using the formula set forth below. Except as otherwise expressly provided in this Agreement, the calculations of Available Storage Capacity and Available Storage Capability in the foregoing sentence shall be based solely on the availability of the Storage Facility to receive Charging Energy from or deliver Discharging Energy to the Delivery Point, as applicable. Any Calculation Interval in which the Storage Facility fails to maintain connectivity to the CAISO such that it cannot receive ADS or AGC signals shall result in an Unavailable Calculation Interval of one (1) for that Calculation Interval.
𝑼𝒏𝒂𝒗𝒂𝒊𝒍𝒂𝒃𝒍𝒆 𝑪𝒂𝒍𝒄𝒖𝒍𝒂𝒕𝒊𝒐𝒏 𝑰𝒏𝒕𝒆𝒓𝒗𝒂𝒍 ൌ 1 െ
⎣
⎢
⎢
⎢
⎡ 𝑡ℎ𝑒 𝑙𝑒𝑠𝑠𝑒𝑟 𝑜𝑓: ቀ 𝐴
𝑆𝑡𝑜𝑟𝑎𝑔𝑒 𝐶𝑎𝑝𝑎𝑐𝑖𝑡𝑦ቁ 𝑜𝑟
ቀ
𝐴𝑣𝑎𝑖𝑙𝑎𝑏𝑙𝑒 𝑆𝑡𝑜𝑟𝑎𝑔𝑒 𝐶𝑎𝑝𝑎𝑏𝑖𝑙𝑖𝑡𝑦
𝑆𝑡𝑜𝑟𝑎𝑔𝑒 𝐶𝑎𝑝𝑎𝑐𝑖𝑡𝑦 𝑋 8 ℎ𝑟𝑠 ቁ 𝑜𝑟
ቀ1 െ 𝐹𝑎𝑖𝑙𝑢𝑟𝑒 𝑡𝑜 𝐶𝑜𝑚𝑝𝑙𝑦 𝐶𝑎𝑝𝑎𝑐𝑖𝑡𝑦
𝑆𝑡𝑜𝑟𝑎𝑔𝑒 𝐶𝑎𝑝𝑎𝑐𝑖𝑡𝑦 െ 𝐴𝑆 𝐹𝑎𝑖𝑙𝑢𝑟𝑒 𝑡𝑜 𝐶𝑜𝑚𝑝𝑙𝑦 𝐶𝑎𝑝𝑎𝑐𝑖𝑡𝑦𝑆𝑡𝑜𝑟𝑎𝑔𝑒 𝐶𝑎𝑝𝑎𝑐𝑖𝑡𝑦 ቁ⎦ ⎥
⎥
⎥
⎤
- Scheduled
332
Exhibit M - 2
Maintenance Percentage
where:
“A” is the “AVAILABLE STORAGE CAPACITY”, which shall be calculated as the sum of the available capacity of each of the system inverters, in MW AC, from all system inverters expected to receive Charging Energy from or deliver Discharging Energy to the Delivery Point, in such Calculation Interval (based on normal operating conditions pursuant to the manufacturer’s guidelines), provided that the Available Storage Capacity shall be the lower of (i) such amounts reported by Seller’s real-time EMS data feed to Buyer for the Facility for such Calculation Interval, and (ii) Seller’s most recent Availability Notice (as updated pursuant to Section 4.4), and further provided that “A” shall never exceed the Storage Capacity. “AVAILABLE STORAGE CAPABILITY” = the sum of the following (taking into account the SOC at the time of calculation):
i. The battery capability (in MWh) available to receive Charging Energy from the Delivery Point in the applicable Calculation Interval ii. The battery capability (in MWh) available to deliver Discharging Energy to the Delivery Point in the applicable Calculation Interval In calculating Available Storage Capability, the “battery capability available to receive Charging Energy” and “battery capability available to receive Discharging Energy” are calculated as the product of (1) the count of available system cells in such Calculation Interval, multiplied by (2) the capability, in Wh, expected from each such system cell (based on normal operating conditions pursuant to the manufacturer’s guidelines), that are able (considering the conditions of the Facility in total) to receive Charging Energy from or deliver Discharging Energy to the Delivery Point, provided that the Available Storage Capability shall be the lower of (i) such amounts reported by Seller’s real-time EMS data feed to Buyer for the Storage Facility for such Calculation Interval, and (ii) Seller’s most recent Availability Notice (as updated pursuant to Section 4.4), and further provided that Storage Capability shall never exceed the Storage Capacity x eight (8) hours. To the extent cell level data is not reasonably available, the Parties shall negotiate in good faith to determine another data point to be provided by Facility’s EMS that reflects the real-time Available Storage Capability.
“FAILURE TO COMPLY CAPACITY” = Any portion of the facility, in MW, which failed to comply with a valid Charging Notice or Discharging Notice that complies with this Agreement except to the extent such Failure to Comply is attributable to any actions or inactions of Buyer, the SC or the CAISO or resulting from Seller’s compliance with any Curtailment Order or other instruction or direction from a Governmental Authority or the PTO unless caused by Seller’s fault or negligence, including (i) any such failure to charge or discharge at the times, in the quantities, and at the levels specified in such Charging Notice or Discharging 333
Exhibit M - 3
Notice (provided, with respect to any such failure not caused by a change in the availability of the Facility,the Facility shall not be deemed to be unavailable for the portion of such failure within the Deviation Tolerance Band); and (ii) any charge or discharge of the Facility other than pursuant to a valid Charging Notice or Discharging Notice that complies with this Agreement, or pursuant to a notice from the CAISO, any PTO, or any other Governmental Authority during which period the Facility shall be deemed to be one hundred percent (100%) unavailable. Failure To Comply Capacity will be measured as
the difference, in MW, between (i) the average DOT communicated to the Facility by the CAISO for the Calculation Interval and (ii) the average metered energy flow for the Calculation Interval; (0); provided, for clarity, such calculation will not include any energy related to Ancillary Services as it is already captured in the AS Failure to Comply Capacity below. “AS FAILURE TO COMPLY CAPACITY” = If any Calculation Interval results in a CAISO No Pay associated with failure to provide Ancillary Services sold to the CAISO, then the AS Failure to Comply Capacity shall equal the Ancillary Service Capacity sold in MW. AS Failure to Comply Capacity will be zero to the extent such Failure to Comply is attributable to any actions or inactions of Buyer, the SC or the CAISO or resulting from Seller’s compliance with any Curtailment Order or other instruction or direction from a Governmental Authority or the PTO unless caused by Seller’s fault or negligence.
“TOTAL CALCULATION INTERVALS” = the total number of Calculation Intervals in the applicable Month.
(b) If the total rated power of the Storage Facility inverters associated with the Installed Storage Capacity as measured to the Delivery Point is less than the Guaranteed Storage Capacity when charging and the Guaranteed Storage Capacity when discharging, in each case at or above 45°C, then Buyer shall have the right, in its reasonable discretion, to apply an ambient temperature derate to the applicable Calculation Interval.
2. Storage Availability Adjustment. The “Storage Availability Adjustment” shall be calculated as follows and applied to the Storage Capacity Payment due for the next month after the end of the monthly period for which the Monthly Storage Availability is calculated provided the Storage Availability Adjustment may never be less than zero (0). (a) If the Monthly Storage Availability is greater than or equal to the Guaranteed Storage Availability, then:
Storage Availability Adjustment = 100% (expressed as a decimal) (b) If the Monthly Storage Availability is less than the Guaranteed Storage Availability but greater than or equal to seventy percent (70%), then:
Storage Availability Adjustment = 100% - [(Guaranteed Storage Availability - Monthly Storage Availability) ] + ( x Secondary Unavailability) (expressed as a decimal) 334
335
Exhibit N - 1
EXHIBIT N
STORAGE CAPACITY TESTS AND ROUND-TRIP EFFICIENCY TESTS
Storage Capacity Test Notice and Frequency
A. Commercial Operation Date Storage Capacity Test. Upon no less than ten (10) Business Days’ Notice to Buyer, Seller shall schedule and complete a Storage Capacity Test prior to the Commercial Operation Date. Such initial Storage Capacity Test shall be performed in accordance with this Exhibit N and shall establish the initial Storage Capacity and Round-Trip Efficiency hereunder based on the actual capacity and round-trip efficiency of the Facility determined by such Storage Capacity Test.
B. Subsequent Storage Capacity Tests. Following the Commercial Operation Date, but not more than once per Contract Year, upon no less than ten (10) Business Days’ Notice to Seller, Buyer shall have the right to require Seller to schedule and complete a Storage Capacity Test and to update the Facility’s PMax and other relevant information and values in the CAISO’s Master Data File and Resource Data Template (or successor data systems). In addition, Buyer shall have the right to require a retest of the most recent Storage Capacity Test (and to update the Facility’s PMax and other relevant information and values as specified above) at any time upon no less than five (5) Business Days prior written Notice to Seller if Buyer provides data with such Notice reasonably indicating that the Storage Capacity has varied materially from the results of the most recent Storage Capacity Test or any other guaranteed operational characteristics are not being met.
Seller shall have the right to perform a Storage Capacity Test or run a retest of any Storage Capacity Test at any time during any Contract Year upon five (5) Business Days’ prior written Notice to Buyer (or any shorter period reasonably acceptable to Buyer consistent with Prudent Operating Practice).
C. Subsequent Round-Trip Efficiency Tests. Following the Commercial Operation Date, upon no less than five (5) Business Days’ Notice to Seller, if Buyer provides data with such Notice reasonably indicating that the actual Round-Trip Efficiency is lower than the then-current tested Round-Trip Efficiency, Buyer shall have the right to require Seller to schedule and complete a Round-Trip Efficiency Test (which shall be conducted in the same manner as a Storage Capacity Test) and to update the Facility’s Round-Trip Efficiency, if applicable. Seller shall have the right to perform a Round-Trip Efficiency Test or run a retest of any Round-Trip Efficiency Test at any time during any Contract Year upon five (5) Business Days’ prior written Notice to Buyer (or any shorter period reasonably acceptable to Buyer consistent with Prudent Operating Practice); provided, however, that if Seller has already conducted a retest of a Round-Trip Efficiency Test, then Seller shall have the right to conduct a subsequent retest of such Round-Trip Efficiency Test within three (3) months of such prior retest only if Seller provides an explanation with such Notice reasonably indicating that Seller has a reasonable basis for expecting the re-test to yield a Round-Trip Efficiency that is higher than the then-current tested Round-Trip Efficiency.
Test Results and Re-Setting of Storage Capacity. No later than ten (10) Business Days following any Storage Capacity Test, Seller shall submit a testing report detailing results and findings of the test. The report shall include meter readings and plant log sheets verifying the operating conditions and output of the Facility. In accordance with Section 4.10(c) of this 336
Exhibit N - 2
Agreement and Part II(I) below, the actual capacity determined pursuant to a Storage Capacity Test (up to, but not in excess of, the Guaranteed Storage Capacity, as such Guaranteed Storage Capacity may have been adjusted (if at all) pursuant to Exhibit B) shall become the new Storage Capacity, effective as of the first day of the month following completion of the Storage Capacity Test for calculating the payment for the Product and all other purposes under this Agreement.
Storage Capacity Test Procedures
PART I. GENERAL.
Each Storage Capacity Test (including the initial Storage Capacity Test, each subsequent Storage Capacity Test, and all re-tests thereof permitted under paragraph B above) shall be conducted in accordance with Prudent Operating Practices and the provisions of this Exhibit N. For ease of reference, a Storage Capacity Test is sometimes referred to in this Exhibit N as a “SCT”. Buyer or its representative may be present for the SCT and may, for informational purposes only, use its own metering equipment (at Buyer’s sole cost).
PART II. REQUIREMENTS APPLICABLE TO ALL STORAGE CAPACITY TESTS.
A. Test Elements. Each SCT shall include the following test elements:
Electrical output at Maximum Discharging Capacity at the Storage Facility Meter (MW);
Electrical input at Maximum Charging Capacity at the Storage Facility Meter (MW);
Amount of time between the Facility’s electrical output going from 0 to Maximum Discharging Capacity;
Amount of time between the Facility’s electrical input going from 0 to Maximum Charging Capacity;
Amount of energy required to go from 0% Stored Energy Level to 100% Stored Energy Level charging at a rate equal to the Maximum Charging Capacity.
B. Parameters. During each SCT, the following parameters shall be measured and recorded simultaneously for the Facility, at ten (10) minute intervals:
(1) Time;
(2) Charging Energy;
(3) Discharging Energy;
337
Exhibit N - 3
(4) Stored Energy Level (MWh);
(5) Station Use.
C. Site Conditions. During each SCT, the following ambient conditions at the Site shall be measured and recorded simultaneously at thirty (30) minute intervals:
(1) Relative humidity (%);
(2) Barometric pressure (inches Hg) near the horizontal centerline of the Facility; and
(3) Ambient air temperature (°F).
D. Test Showing. Each SCT must demonstrate that the Facility:
(1) successfully started;
(2) operated for at least eight (8) consecutive hours at Maximum Discharging Capacity;
(3) operated for at least eight (8) consecutive hours at Maximum Charging Capacity;
(4) is able to ramp upward and downward at the contract Ramp Rate; and (5) is able to deliver Discharging Energy to the Delivery Point as measured by the Storage Facility Meter for eight (8) consecutive hours at a rate equal to the Maximum Discharging Capacity.
E. Test Conditions.
(i) General. At all times during a SCT, the Facility shall be operated in compliance with Prudent Operating Practices and all operating protocols recommended, required or established by the manufacturer for operation at Maximum Discharging Capacity and Maximum Charging Capacity. (ii) Abnormal Conditions. If abnormal operating conditions that prevent the recordation of any required parameter occur during a SCT, either Party may postpone or reschedule all or part of such SCT in accordance with Part II.F below.
(iii) Instrumentation and Metering. Seller shall provide all instrumentation, metering and data collection equipment required to perform the SCT. The instrumentation, metering and data collection equipment electrical meters shall be calibrated in accordance with Prudent Operating Practice. (iv) Ambient Temperature. For tests requested by Buyer (and not for any CAISO-initiated test, which shall occur when directed by CAISO), the 338
Exhibit N - 4
average ambient temperature, based on an aggregate of 1-minute resolution data collected throughout the SCT, must be within the range of 8 – 33 degrees Celsius.
F. Incomplete Test. If any SCT is not completed in accordance herewith, Buyer may in its sole discretion: (i) accept the results up to the time the SCT stopped; (ii) require that the portion of the SCT not completed, be completed within a reasonable specified time period; or (iii) require that the SCT be entirely repeated.
Notwithstanding the above, if Seller is unable to complete a SCT due to a Force Majeure Event or the actions or inactions of Buyer or the CAISO or the PTO, Seller shall be permitted to reconduct such SCT on dates and at times reasonably acceptable to the Parties.
G. Final Report. Within ten (10) Business Days after the completion of any SCT, Seller shall prepare and submit to Buyer a written report of the results of the SCT, which report shall include:
(1) a record of the personnel present during the SCT that served in an operating, testing, monitoring or other such participatory role;
(2) the measured data for each parameter set forth in Part II.A through C, including copies of the raw data taken during the test; (3) the level of Installed Storage Capacity or Storage Capacity (as applicable), charging capacity, discharging capacity, charging ramp rate, discharging ramp rate, Round-Trip Efficiency, and Stored Energy Level determined by the SCT, including supporting calculations; and
(4) Seller’s statement of either Seller’s acceptance of the SCT or Seller’s rejection of the SCT results and reason(s) therefor.
Within ten (10) Business Days after receipt of such report, Buyer shall notify Seller in writing of either Buyer’s acceptance of the SCT results or Buyer’s rejection of the SCT and reason(s) therefor, provided that if Buyer does not provide notice of acceptance or rejection within such ten (10) Business Days the SCT shall be deemed accepted.
If either Party reasonably rejects the results of any SCT, such SCT shall be repeated in accordance with Part II.F.
H. Supplementary Storage Capacity Test Protocol. No later than sixty (60) days prior to commencing Facility construction, Seller shall deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) a supplement to this Exhibit N with additional and supplementary details, procedures and requirements applicable to Storage Capacity Tests based on the then current design of the Facility (“Supplementary Storage Capacity Test Protocol”).
Thereafter, from time to time, Seller may deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) any Seller 339
Exhibit N - 5
recommended updates to the then current Supplementary Storage Capacity Test Protocol. The initial Supplementary Storage Capacity Test Protocol (and each update thereto), once approved by Buyer, shall be deemed an amendment to this Exhibit N.
I. Adjustment to Storage Capacity. The total amount of Discharging Energy delivered to the Delivery Point (expressed in MWh AC) during each of the first eight hours of discharge (up to, but not in excess of, the product of (i) the Guaranteed Storage Capacity, as such Guaranteed Storage Capacity may have been adjusted (if at all) under this Agreement, multiplied by (ii) 8 hours) shall be divided by eight hours to determine the Storage Capacity, which shall be expressed in MW AC, and shall be the new Storage Capacity in accordance with Section 4.10(c) of this Agreement.
J. Adjustment to Round-Trip Efficiency. The Round-Trip Efficiency determined pursuant to the Storage Capacity Test will be equal to the quotient of (i) the total amount of Discharging Energy delivered to the Delivery Point (expressed in MWh AC) during the Storage Capacity Test, divided by (ii) the difference of (a) the total amount of Charging Energy delivered to the Delivery Point (expressed in MWh AC) during the Storage Capacity Test (such Charging Energy not to be adjusted for any Electrical Losses incurred during the Storage Capacity Test) minus (b) the reimbursable Station Use during the Capacity Test, and shall be the new Round-Trip Efficiency in accordance with Section 4.11(c) of this Agreement.
K. Following the initial Storage Capacity Test conducted prior to the Commercial Operation Date, upon request of Seller, Buyer shall consider in good faith an alternate methodology for conducting a Storage Capacity Test by reference to the operational data reflecting the net output of the Facility from the point of interconnection. Upon Seller’s request, Seller and Buyer shall work in good faith to establish a mutually acceptable methodology for demonstrating the Storage Capacity through such operational data. If Buyer and Seller mutually agree in writing on an alternate methodology, such alternate methodology shall become the Storage Capacity Test used to establish the Storage Capacity for all purposes of this Agreement, including compensation under Section 3.2.
340
Exhibit O - 1
EXHIBIT O
OPERATING RESTRICTIONS
All Operating Restrictions shall be generally subject to any CAISO or PTO restrictions applicable to facilities similar to the Facility to the extent such limitations are more limiting to the operations of the Facility than the technical limitations of the Facility.
Maximum Discharging Energy:
Annual: 29,200 MWh
Daily: 160 MWh
Ramp Rates: Dmin to Dmax: up to 100%/s
Cmin to Cmax: up to 100%/s
Dmax to Dmin: up to 100%/s
Cmax to Cmin: up to 100%/s
Frequency ramp rate: 100% MW/Hz
Regulation ramp rate: 655 MW/min
System Response Time: Idle to Dmax: <4s
Idle to Cmax: <4s
Dmax to Cmax: <4s
Cmax to Dmax: <4s
Dmin to Cmin: <2s
Cmin to Dmin: <2s
Maximum Stored Energy Level: 80 MWh, number in MWh representing maximum amount of energy that may be charged to the Facility
Minimum Stored Energy Level: 0 MWh, number in MWh representing the lowest level to which the Facility may be discharged
Maximum Charging Capacity: 10 MW, number in MW representing the highest level to which the Facility may be charged
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342
Exhibit P - 1
EXHIBIT P
METERING DIAGRAM
343
Exhibit Q - 1
EXHIBIT Q
RTE SHORTFALL PAYMENTS
In the event that the RTEM is less than the GRTE, the monthly Storage Capacity Payment under Section 3.2 shall be reduced by the “RTE Shortfall Payment”, calculated as follows:
(GRTE – RTEM) x Average Monthly T8B9 Price x RTEFM x TCEM where:
GRTE = the Guaranteed Round-Trip Efficiency
RTEM = the Round-Trip Efficiency,
The “Average Monthly T8B9 Price” means the average of the eight (8) highest hourly average Day-Ahead Market LMPs and the nine (9) lowest hourly average Day-Ahead Market LMPs, in each case in the applicable month.
The “Round-Trip Efficiency Factor” or “RTEFM” for each month is determined as follows:
If RTEM > GRTE, then RTEFM = 0
If RTEM < GRTE and RTEM > 70%, then RTEFM = 1.2
If RTEM < 70%, then RTEFM = 1.7
TCEM = the total Charging Energy charged to the Facility in the applicable month. 344
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DATE: June 4, 2024
MEETING DATE: June 27, 2024
VOTE REQUIRED: Majority Vote
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Shawn Marshall, Chief Executive Officer
Nelly Wogberg, Board Clerk
SUBJECT: Preliminary Approval of Proposed Administrative Updates to the Peninsula Clean Energy Authority Joint Powers Authority (JPA) Agreement (Action) Item No. 14
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
RECOMMENDATION
Approval of proposed administrative updates to the Peninsula Clean Energy Authority Joint Powers Authority (JPA) Agreement.
BACKGROUND
Peninsula Clean Energy Authority (PCE) was formed in February 2016 by the County of San Mateo and all twenty cities within the County. The original Joint Powers Authority (JPA) Agreement was approved at this time. On March 28, 2019 the Board of Directors amended the JPA to include a section for Directors Emeritus and to appoint the Chief Financial Officer as Treasurer. On October 22, 2020 the Board of Directors again amended the JPA Agreement to add a new jurisdiction, the City of Los Banos.
DISCUSSION
Staff has identified and noted some inconsistencies and duplication between the Operating Rules and Regulations of the Board, namely PCE's Board Policies, and the Joint Powers Authority (JPA) Agreement. The following administrative updates are being proposed to remove duplication and to ensure that all documents governing the PCE Board are in alignment. The proposed changes are as follows:
1. Removal of Section 3.1.1, Directors Emeritus, based on the Board decision at the February 23, 2023 Board meeting to transition away from two Director Emeritus Ex-Officio seats to an Emeritus Advisory Group maintained by staff. The Emeritus Advisory Group is proposed to be included as part of the proposed edits to PCE's Policy 16.
2. An inclusion of delegation authority to Section 3.3.7, Powers and Functions of the Board, for filings with the California Public Utilities Commission, the Federal Energy Regulatory Commission, or any other administrative agency.
3. To ensure consistencies between Operating Rules and Regulations (Policy 14, "Delegation of Non-Energy Contracts Commitment and Financial Authority Policy") and 346
the JPA Agreement, Section 3.4, Chief Executive Officer, has been edited to remove the dollar value of the signing authority limit and house it in Policy 14. Staff found that including the signing authority limit in multiple places causes confusion and operational risk if there is misalignment.
4. To ensure consistencies between Operating Rules and Regulations (Policy 16, "Selection of the Chair and Vice Chair and appointment to the Executive Committee and other standing Board Committees") and the JPA Agreement, Section 3.9.1, Selection of Board Officers, has been updated to include term limits for the Chair and Vice Chair.
Staff has suggested term limits of two (2) years to better coincide with election cycles, but suggests that the Committee direct Staff if another option is preferred. It may also make sense to retain the current Chair and Vice Chair terms to end in January 2027 following the election in 2026 to better align with election cycles.
5. An update from six (6) to twelve (12) months in Section 6.1.1, Right to Withdraw, to better align with current rules around Resource Adequacy.
6. An update to Section 5.3.1, Budget, to clarify and update language to be consistent with current practices.
Please see the attached redline as a cross reference and to see other minor administrative corrections as proposed. Once the proposed amendments are approved by the Board, the JPA Agreement will be sent to all member agencies for a 30 day comment period; proposed amendments do not require approval by member agency elected bodies, but comments are welcome. It is expected that the final red line amendments will come back to the Board for approval at its August 2024 Board meeting.
The Executive Committee reviewed and discussed these updates at their June 10, 2024 meeting and voted unanimously to recommend approval by the Board of Directors.
FISCAL IMPACT
None.
ATTACHMENTS:
JPA - Proposed Third Amended - Redline.pdf
JPA - Proposed Third Amended - Clean.pdf
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SECOND THIRD AMENDED JOINT EXERCISE OF POWERS AGREEMENT RELATING TO
AND CREATING THE
PENINSULA CLEAN ENERGY AUTHORITY
This Joint Exercise of Powers Agreement, effective on the date determined by Section 2.1, is made and entered into pursuant to the provisions of Title 1, Division 7, Chapter 5, Article 1 (Sections 6500 et seq.) of the California Government Code relating to the joint exercise of powers among the Parties set forth in Exhibit B, and establishes the Peninsula Clean Energy Authority (“Authority”), is by and between the County of San Mateo (“County”) and those counties, cities and towns within the State of California who become signatories to this Agreement, and relates to the joint exercise of powers among the signatories hereto.
RECITALS
A. The Parties share various powers under California law, including but not limited to the power to purchase, supply, and aggregate electricity for themselves and customers within their jurisdictions.
B. In 2006, the State Legislature adopted AB 32, the Global Warming Solutions Act, which mandates a reduction in greenhouse gas emissions in 2020 to 1990 levels. The California Air Resources Board is promulgating regulations to implement AB 32 which will require local governments to develop programs to reduce greenhouse gas emissions.
C. The purposes for entering into this Agreement include:
a. Reducing greenhouse gas emissions related to the use of power in San Mateo County and the State of California;
b. Providing electric power and other forms of energy to customers at a competitive cost;
c. Carrying out programs to reduce energy consumption;
d. Stimulating and sustaining the local economy by developing local jobs in renewable energy; and
e. Promoting long-term electric rate stability and energy security and reliability for residents through local control of electric generation resources.
D. It is the intent of this Agreement to promote the development and use of a wide range of renewable energy sources and energy efficiency programs, including but not limited to solar, wind, and biomass energy production. The purchase of renewable power and greenhouse gas-free energy sources will be the desired approach to decrease regional greenhouse gas emissions and accelerate the State’s transition to clean power resources to the extent feasible. The Agency will also add increasing levels of locally generated renewable 348
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resources as these projects are developed and customer energy needs expand.
E. The Parties desire to establish a separate public agency, known as the Peninsula Clean Energy Authority, under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) (“Act”) in order to collectively study, promote, develop, conduct, operate, and manage energy programs.
F. The Parties anticipate adopting an ordinance electing to implement through the Authority a common Community Choice Aggregation (CCA) program, an electric service enterprise available to cities and counties pursuant to California Public Utilities Code Sections 331.1(c) and 366.2. The first priority of the Authority will be the consideration of those actions necessary to implement the CCA Program.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions hereinafter set forth, it is agreed by and among the Parties as follows:
ARTICLE 1: DEFINITIONS AND EXHIBITS
1.1 Definitions. Capitalized terms used in the Agreement shall have the meanings specified in Exhibit A, unless the context requires otherwise.
1.2 Documents Included. This Agreement consists of this document and the following exhibits, all of which are hereby incorporated into this Agreement.
Exhibit A: Definitions
Exhibit B: List of the Parties
Exhibit C: Annual Energy Use
Exhibit D: Voting Shares
Exhibit E: Signatures
ARTICLE 2: FORMATION OF PENINSULA CLEAN ENERGY AUTHORITY
2.1 Effective Date and Term. This Agreement shall become effective and Peninsula Clean Energy Authority shall exist as a separate public agency on February 29, 2016 or when the County of San Mateo and at least two municipalities execute this Agreement, whichever occurs later. The Authority shall provide notice to the Parties of the Effective Date. The Authority shall continue to exist, and this Agreement shall be effective, until this Agreement is terminated in accordance with Section 6.4, subject to the rights of the Parties to withdraw from the Authority.
2.2 Formation. There is formed as of the Effective Date a public agency named the Peninsula Clean Energy Authority. Pursuant to Sections 6506 and 6507 of the Act, the Authority is a public agency separate from the Parties. Pursuant to Sections 6508.1 of the Act, the debts, liabilities or obligations of the Authority shall not be debts, liabilities or obligations of the individual Parties 349
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unless the governing board of a Party agrees in writing to assume any of the debts, liabilities or obligations of the Authority. A Party who has not agreed to assume an Authority debt, liability or obligation shall not be responsible in any way for such debt, liability or obligation even if a majority of the Parties agree to assume the debt, liability or obligation of the Authority. Notwithstanding Section 7.4 of this Agreement, this Section 2.2 may not be amended unless such amendment is approved by the governing board of each Party.
2.3 Purpose. The purpose of this Agreement is to establish an independent public agency in order to exercise powers common to each Party to study, promote, develop, conduct, operate, and manage energy, energy efficiency and conservation, and other energy-related programs, and to exercise all other powers necessary and incidental to accomplishing this purpose. Without limiting the generality of the foregoing, the Parties intend for this Agreement to be used as a contractual mechanism by which the Parties are authorized to participate in the CCA Program, as further described in Section 4.1. The Parties intend that other agreements shall define the terms and conditions associated with the implementation of the CCA Program and any other energy programs approved by the Authority.
2.4 Powers. The Authority shall have all powers common to the Parties and such additional powers accorded to it by law. The Authority is authorized, in its own name, to exercise all powers and do all acts necessary and proper to carry out the provisions of this Agreement and fulfill its purposes, including, but not limited to, each of the following powers, subject to the voting requirements set forth in Section 3.7 through 3.7.5:
2.4.1 to make and enter into contracts;
2.4.2 to employ agents and employees, including but not limited to a Chief Executive Officer;
2.4.3 to acquire, contract, manage, maintain, and operate any buildings, infrastructure, works, or improvements;
2.4.4 to acquire property by eminent domain, or otherwise, except as limited under Section 6508 of the Act, and to hold or dispose of any property; however, the Authority shall not exercise the power of eminent domain within the jurisdiction of a Party over its objection without first meeting and conferring in good faith.
2.4.5 to lease any property;
2.4.6 to sue and be sued in its own name;
2.4.7 to incur debts, liabilities, and obligations, including but not limited to loans from private lending sources pursuant to its temporary borrowing powers such as Government Code Sections 53850 et seq. and authority under the Act;
2.4.8 to form subsidiary or independent corporations or entities if necessary, to carry out energy supply and energy conservation programs at the lowest possible cost or to take advantage of legislative or regulatory changes;
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2.4.9 to issue revenue bonds and other forms of indebtedness;
2.4.10 to apply for, accept, and receive all licenses, permits, grants, loans or other aids from any federal, state, or local public agency;
2.4.11to submit documentation and notices, register, and comply with orders, tariffs and agreements for the establishment and implementation of the CCA Program and other energy programs;
2.4.12 to adopt Operating Rules and Regulations; and
2.4.13 to make and enter into service agreements relating to the provision of services necessary to plan, implement, operate and administer the CCA Program and other energy programs, including the acquisition of electric power supply and the provision of retail and regulatory support services.
2.4.14 to permit additional Parties to enter into this Agreement after the Effective Date and to permit another entity authorized to be a community choice aggregator to designate the Authority to act as the community choice aggregator on its behalf.
2.5 Limitation on Powers. As required by Government Code Section 6509, the power of the Authority is subject to the restrictions upon the manner of exercising power possessed by San Mateo County.
2.6 Compliance with Local Zoning and Building Laws and CEQA. Unless state or federal law provides otherwise, any facilities, buildings or structures located, constructed, or caused to be constructed by the Authority within the territory of the Authority shall comply with the General Plan, zoning and building laws of the local jurisdiction within which the facilities, buildings or structures are constructed and comply with the California Environmental Quality Act (“CEQA”).
ARTICLE 3: GOVERNANCE AND INTERNAL ORGANIZATION
3.1 Board of Directors. The governing body of the Authority shall be a Board of Directors (“Board”).
The Board shall consist of 2 (two) directors appointed by the San Mateo County Board of Supervisors and 1 (one) director appointed by each County, City or Town that becomes a signatory to the Agreement (“Directors”). Each Director shall serve at the pleasure of the governing board of the Party who appointed such Director and may be removed as Director by such governing board at any time. If at any time a vacancy occurs on the Board, a replacement shall be appointed to fill the position of the previous Director within 90 days of the date that such position becomes vacant. Directors must be members of the Board of Supervisors or members of the governing board of the municipality that is the signatory to this Agreement. Each Party may appoint an alternate(s) to serve in the absence of its Director(s). Alternates may be either (1) members of the Board of Supervisors or members of the governing board of the municipality that is the signatory to this Agreement, or (2) staff members of the County or any such municipality.
3.1.1 Directors Emeritus.
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The Board may select up to two board directors emeritus (“Directors Emeritus”). Directors Emeritus will be selected from former directors who served on the Board with distinction and excellence.
The Board may fill any vacant emeritus position(s) by a simple majority vote of Directors. The Chair may delegate the initial review of applicants and/or nominations to a committee. Directors Emeritus will serve at the pleasure of the Board for two-year terms, subject to the discretion of the Board to shorten or end a term. There shall be no limit on the number of terms held. It is the Board’s intention that Directors Emeritus receive all written notices and information provided to the Board, be permitted to attend all Board meetings, be permitted to participate in committee meetings without need for an appointment, and be encouraged to attend other PCE events. Directors Emeritus will not be counted in determining if a quorum is present, will not be entitled to hold office, and will not be entitled to vote at any Board or committee meeting. Director Emeritus status does not entitle participation in closed sessions of the Board.
3.2 Quorum. A majority of the appointed Directors shall constitute a quorum, except that less than a quorum may adjourn from time to time in accordance with law.
3.3 Powers and Functions of the Board. The Board shall exercise general governance and oversight over the business and activities of the Authority, consistent with this Agreement and applicable law. The Board shall provide general policy guidance to the CCA Program. Board approval shall be required for any of the following actions:
3.3.1 The issuance of bonds or any other financing even if program revenues are expected to pay for such financing.
3.3.2 The hiring or termination of the Chief Executive Officer and General Counsel.
3.3.3 The appointment or removal of officers described in Section 3.9, subject to Section
3.9.3. 3.3.4 The adoption of the Annual Budget.
3.3.5 The adoption of an ordinance.
3.3.6 The approval of agreements, except as provided by Section 3.4.
3.3.7 The initiation or resolution of claims and litigation where the Authority will be the defendant, plaintiff, petitioner, respondent, cross complainant, or cross petitioner, or intervenor; provided, however, that the Chief Executive Officer or General Counsel or by delegation thereof, , on behalf of the Authority, may intervene in, become a party to, or file comments with respect to any proceeding pending at the California Public Utilities Commission, the Federal Energy Regulatory Commission, or any other administrative agency, without approval of the Board as long as such action is consistent with any adopted Board policies.
3.3.8 The setting of rates for power sold by the Authority and the setting of charges for any other category of service provided by the Authority. 352
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3.3.9 Termination of the CCA Program.
3.4 Chief Executive Officer. The Board of Directors shall appoint a Chief Executive Officer for the Authority, who shall be responsible for the day-to-day operation and management of the Authority and the CCA Program. The Chief Executive Officer, may exercise all powers of the Authority, including the power to hire, discipline, and terminate employees as well as the power to approve any agreement if the total amount payable under the agreement is equal to or less than the amount is less than $100specified in the Operating Rules and Regulations (Policy 15, “Delegation of Non-Energy Contract Authority”) ,000 in any fiscal year, except for the powers specifically set forth in Section 3.3 or those powers which by law must be exercised by the Board of Directors.
3.5 Commissions, Boards, and Committees. The Board may establish any advisory commissions, boards, and committees as the Board deems appropriate to assist the Board in carrying out its functions and implementing the CCA Program, other energy programs and the provisions of this Agreement which shall comply with the requirements of the Ralph M. Brown Act. The Board may establish rules, regulations, policies, bylaws or procedures to govern any such commissions, boards, or committees if the Board deems appropriate to appoint such commissions, boards or committees, and shall determine whether members shall be compensated or entitled to reimbursement for expenses.
3.6 Director Compensation. Directors shall serve without compensation from the Authority.
However, Directors may be compensated by their respective appointing authorities. The Board, however, may adopt by resolution a policy relating to the reimbursement by the Authority of expenses incurred by Directors.
3.7 Voting In general, as described below in Section 3.7.3, action by the Authority Board will be taken solely by a majority vote of the Directors present. However, as described below in Section
3.7.4, upon request of a Director, a weighted vote by shares will also be conducted. When such a request is made, an action must be approved by both a majority vote of Directors present and a majority of the weighted vote by shares present. No action may be approved solely by a vote by shares. The voting shares of Directors and approval requirements for actions of the Board shall be as follows:
3.7.1. Voting Shares.
Each Director shall have a voting share as determined by the following formula: (Annual Energy Use/Total Annual Energy) multiplied by 100, where:
(a) “Annual Energy Use” means, (i) with respect to the first year following the Effective Date, the annual electricity usage, expressed in kilowatt hours (“kWh”), within the Party’s respective jurisdiction and (ii) with respect to the period after the anniversary of the Effective Date, the annual electricity usage, expressed in kWh, of accounts within a Party’s respective jurisdiction that are served by the Authority; and
(b) “Total Annual Energy” means the sum of all Parties’ Annual Energy Use. The initial values for Annual Energy Use will be designated in Exhibit C, and shall be adjusted annually as soon as reasonably practicable after January 1, but no later than 353
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March 1 of each year. These adjustments shall be approved by the Board. (c) The combined voting share of all Directors representing the County of San Mateo shall be based upon the annual electricity usage within the unincorporated area of San Mateo County.
For the purposes of Weighted Voting, if a Party has more than one director, then the voting shares allocated to the entity shall be equally divided amongst its Directors.
3.7.2. Exhibit Showing Voting Shares. The initial voting shares will be set forth in Exhibit D. Exhibit D shall be revised no less than annually as necessary to account for changes in the number of Parties and changes in the Parties’ Annual Energy Use. Exhibit D and adjustments shall be approved by the Board.
3.7.3. Approval Requirements Relating to CCA Program. Except as provided in Sections
3.7.4 and 3.7.5 below, action of the Board shall require the affirmative vote of a majority of Directors present at the meeting.
3.7.4. Option for Approval by Voting Shares. Notwithstanding Section 3.7.3, any Director present at a meeting may demand that approval of any matter related to the CCA Program be determined on the basis of both voting shares and by the affirmative vote of a majority of Directors present at the meeting. If a Director makes such a demand with respect to approval of any such matter, then approval of such matter shall require the affirmative vote of a majority of Directors present at the meeting and the affirmative vote of Directors having a majority of voting shares present, as determined by Section 3.7.1 except as provided in Section 3.7.5.
3.7.5. Special Voting Requirements for Certain Matters. (a) Two-Thirds and Weighted Voting Approval Requirements Relating to Sections
6.2 and 7.4. Action of the Board on the matters set forth in Section 6.2 (involuntary termination of a Party), or Section 7.4 (amendment of this Agreement) shall require the affirmative vote of at least two-thirds of Directors present; provided, however, that (i) notwithstanding the foregoing, any Director present at the meeting may demand that the vote be determined on the basis of both voting shares and by the affirmative vote of Directors, and if a Director makes such a demand, then approval shall require the affirmative vote of both at least two-thirds of Directors present and the affirmative vote of Directors having at least two-thirds of the voting shares present, as determined by Section 3.7.1; (ii) but, at least two Parties must vote against a matter for the vote to fail; and (iii) for votes to involuntarily terminate a Party under Section 6.2, the Director(s) for the Party subject to involuntary termination may not vote, and the number of Directors constituting two-thirds of all Directors, and the weighted vote of each Party shall be recalculated as if the Party subject to possible termination were not a Party.
(b) Seventy Five Percent Special Voting Requirements for Eminent Domain and Contributions or Pledge of Assets.
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(i) A decision to exercise the power of eminent domain on behalf of the Authority to acquire any property interest other than an easement, right-of-way, or temporary construction easement shall require a vote of at least 75% of all Directors. (ii) The imposition on any Party of any obligation to make contributions or pledge assets as a condition of continued participation in the CCA Program shall require a vote of at least 75% of all Directors and the approval of the governing boards of the Parties who are being asked to make such contribution or pledge. (iii) Notwithstanding the foregoing, any Director present at the meeting may demand that a vote under subsections (i) or (ii) be determined on the basis of voting shares and by the affirmative vote of Directors, and if a Director makes such a demand, then approval shall require both the affirmative vote of at least 75% of Directors present and the affirmative vote of Directors having at least 75% of the voting shares present, as determined by Section 3.7.1, but at least two Parties must vote against a matter for the vote to fail. For purposes of this section, “imposition on any Party of any obligation to make contributions or pledge assets as a condition of continued participation in the CCA Program” does not include any obligations of a withdrawing or terminated party imposed under Section 6.3.
3.8 Meetings and Special Meetings of the Board. The Board shall hold at least six regular meetings per year, but the Board may provide for the holding of regular meetings at more frequent intervals. The date, hour and place of each regular meeting shall be fixed by resolution or ordinance of the Board. Regular meetings may be adjourned to another meeting time. Special and Emergency Meetings of the Board may be called in accordance with the provisions of California Government Code Sections 54956 and 54956.5. Directors may participate in meetings telephonically, with full voting rights, only to the extent permitted by law. All meetings shall be conducted in accordance with the provisions of the Ralph M. Brown Act (California Government Code Sections 54950 et seq.).
3.9 Selection of Board Officers.
3.9.1 Chair and Vice Chair. The Directors shall select, from among themselves, a Chair, who shall be the presiding officer of all Board meetings, and a Vice Chair, who shall serve in the absence of the Chair. The term of office of the Chair and Vice Chair shall continue for one year, but there shall be no limit on the number of terms held by either the Chair or Vice Chairshall be specified in the Operating Rules and Regulations (Policy 16, “Policies and Procedures for Board of Directors, Committees, and Advisory Groups”). The office of either the Chair or Vice Chair shall be declared vacant and a new selection shall be made if:
(a) the person serving dies, resigns, or the Party that the person represents removes the person as its representative on the Board or
(b) the Party that he or she represents withdraws from the Authority pursuant to the provisions of this Agreement.
3.9.2 Secretary. The Board shall appoint a Secretary, who need not be a member of the Board, who shall be responsible for keeping the minutes of all meetings of the Board and all 355
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other official records of the Authority.
3.9.3 Treasurer and Auditor. The Chief Financial Officer shall, among other duties, act as the Treasurer for the Authority. Unless otherwise exempted from such requirement, the Authority shall cause an independent audit to be made by a certified public accountant, or public accountant, in compliance with Section 6505 of the Act. The Treasurer shall act as the depository of the Authority and have custody of all the money of the Authority, from whatever source, and as such, shall have all of the duties and responsibilities specified in Section 6505.5 of the Act. The Treasurer shall report directly to the Board and shall comply with the requirements of treasurers of incorporated municipalities. The Board may transfer the responsibilities of Treasurer to any person or entity as the law may provide at the time.
The duties and obligations of the Treasurer are further specified in Article 5.
3.10 Administrative Services Provider. The Board may appoint one or more administrative services providers to serve as the Authority’s agent for planning, implementing, operating and administering the CCA Program, and any other program approved by the Board, in accordance with the provisions of an Administrative Services Agreement. The appointed administrative services provider may be one of the Parties. An Administrative Services Agreement shall set forth the terms and conditions by which the appointed administrative services provider shall perform or cause to be performed all tasks necessary for planning, implementing, operating and administering the CCA Program and other approved programs. The Administrative Services Agreement shall set forth the term of the Agreement and the circumstances under which the Administrative Services Agreement may be terminated by the Authority. This section shall not in any way be construed to limit the discretion of the Authority to hire its own employees to administer the CCA Program or any other program.
ARTICLE 4: IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
4.1 Preliminary Implementation of the CCA Program.
4.1.1 Enabling Ordinance. To be eligible to participate in the CCA Program, each Party must adopt an ordinance in accordance with Public Utilities Code Section 366.2(c)(12) for the purpose of specifying that the Party intends to implement a CCA Program by and through its participation in the Authority.
4.1.2 Implementation Plan. The Authority shall cause to be prepared an Implementation Plan meeting the requirements of Public Utilities Code Section 366.2 and any applicable Public Utilities Commission regulations as soon after the Effective Date as reasonably practicable. The Implementation Plan shall not be filed with the Public Utilities Commission until it is approved by the Board in the manner provided by Section 3.7.3.
4.1.3 Termination of CCA Program. Nothing contained in this Article or this Agreement shall be construed to limit the discretion of the Authority to terminate the implementation or operation of the CCA Program at any time in accordance with any applicable requirements of state law.
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4.2 Authority Documents. The Parties acknowledge and agree that the affairs of the Authority will be implemented through various documents duly adopted by the Board through Board resolution.
The Parties agree to abide by and comply with the terms and conditions of all such documents that may be adopted by the Board, subject to the Parties’ right to withdraw from the Authority as described in Article 6.
4.3 Addition of Parties. Other incorporated municipalities and counties may become Parties subject to all applicable terms of this Agreement, including but not limited to those in Article 6, upon (a) the adoption of a resolution by the governing body of such incorporated municipality or such county requesting that the incorporated municipality or county, as the case may be, become a member of the Authority, (b) the adoption, by an affirmative vote of the Board satisfying the requirements described in Section 3.7, of a resolution authorizing membership of the additional incorporated municipality or county, specifying the membership payment, if any, to be made by the additional incorporated municipality or county to reflect its pro rata share of organizational, planning and other pre-existing expenditures, and describing additional conditions, if any, associated with membership, (c) the adoption of an ordinance required by Public Utilities Code Section 366.2(c)(12) and execution of this Agreement and other necessary program agreements by the incorporated municipality or county as required by the Board, (d) payment of the membership payment, if any, and (e) satisfaction of any conditions established by the Board.
4.3.1 Continuing Participation. The Parties acknowledge that membership in the Authority may change by the addition and/or withdrawal or termination of Parties. The Parties agree to participate with such other Parties as may later be added, as described in Section 4.3. The Parties also agree that the withdrawal or termination of a Party shall not affect this Agreement or the remaining Parties’ continuing obligations under this Agreement.
4.3.2 Termination by Additional Parties. In addition to any financial obligations under Article 6, and in the events that the Board does not require a membership payment to reflect the additional party’s pro rata share of organizational planning and other pre-existing expenditures as allowed by Section
4.3(b) and the additional party withdraws its membership in the Authority within the first five years of becoming a party, the party shall be obligated to reimburse the Authority for all the costs related to the cost of launch, including but not limited to the costs of updating the Implementation Plan and mailings to party’s accounts.
ARTICLE 5: FINANCIAL PROVISIONS
5.1 Fiscal Year. The Authority’s fiscal year shall be 12 months commencing July 1 or the date selected by the Agency and ending June 30. The fiscal year may be changed by Board resolution.
5.2 Depository.
5.2.1 All funds of the Authority shall be held in separate accounts in the name of the Authority and not commingled with funds of any Party or any other person or entity. 357
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5.2.2 All funds of the Authority shall be strictly and separately accounted for, and regular reports shall be rendered of all receipts and disbursements, at least quarterly during the fiscal year. The books and records of the Authority shall be open to inspection by the Parties at all reasonable times. The Board shall contract with a certified public accountant or public accountant to make an annual audit of the accounts and records of the Authority, which shall be conducted in accordance with the requirements of Section 6505 of the Act.
5.2.3 All expenditures shall be made in accordance with the approved budget and upon the approval of any officer so authorized by the Board in accordance with its Operating Rules and Regulations. The Treasurer shall draw checks or warrants or make payments by other means for claims or disbursements not within an applicable budget only upon the prior approval of the Board.
5.3 Budget and Recovery of Costs.
5.3.1 Budget. The initial annual budget shall be approved by the Board. Staff shall report to the Board quarterly budget results and any significant budget variances. The Board may revise the budget as needed to address any significant changes and/or unexpected expenses incurred. The Board may revise the budget from time to time as may be reasonably necessary to address contingencies and unexpected expenses. All subsequent budgets of the Authority shall be approved by the Board in accordance with the Operating Rules and Regulations.
5.3.2 Funding of Initial Costs. The County of San Mateo has funded certain activities necessary to implement the CCA Program. If the CCA Program becomes operational, these Initial Costs paid by the County of San Mateo shall be included in the customer charges for electric services as provided by Section 5.3.3 to the extent permitted by law, and the County of San Mateo shall be reimbursed from the payment of such charges by customers of the Authority. Prior to such reimbursement, the County of San Mateo shall provide such documentation of costs paid as the Board may request. The Authority may establish a reasonable time period over which such costs are recovered. In the event that the CCA Program does not become operational, the County of San Mateo shall not be entitled to any reimbursement of the Initial Costs it has paid from the Authority or any Party.
5.3.3 CCA Program Costs. The Parties desire that all costs incurred by the Authority that are directly or indirectly attributable to the provision of electric, conservation, efficiency, incentives, financing, or other services provided under the CCA Program, including but not limited to the establishment and maintenance of various reserves and performance funds and administrative, accounting, legal, consulting, and other similar costs, shall be recovered through charges to CCA customers receiving such electric services, or from revenues from grants or other third-party sources.
ARTICLE 6: WITHDRAWAL AND TERMINATION
6.1 Withdrawal.
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6.1.1 Right to Withdraw. A Party may withdraw its participation in the CCA Program, effective as of the beginning of the Authority’s fiscal year, by giving no less than 612 months advance written notice of its election to do so, which notice shall be given to the Authority and each Party. Withdrawal of a Party shall require an affirmative vote of the Party’s governing board.
6.1.2 Right to Withdraw After Amendment. Notwithstanding Section 6.1.1, a Party may withdraw its membership in the Authority following an amendment to this Agreement adopted by the Board which the Party’s Director(s) voted against provided such notice is given in writing within thirty (30) days following the date of the vote. Withdrawal of a Party shall require an affirmative vote of the Party’s governing board and shall not be subject to the six month advance notice provided in Section 6.1.1. In the event of such withdrawal, the Party shall be subject to the provisions of Section 6.3.
6.1.3 The Right to Withdraw Prior to Program Launch. After receiving bids from power suppliers, the Authority must provide to the Parties the report from the electrical utility consultant retained by the Authority that compares the total estimated electrical rates that the Authority will be charging to customers as well as the estimated greenhouse gas emissions rate and the amount of estimated renewable energy used with that of the incumbent utility. If the report provides that the Authority is unable to provide total electrical rates, as part of its baseline offering, to the customers that are equal to or lower than the incumbent utility or to provide power in a manner that has a lower greenhouse gas emissions rate or uses more renewable energy than the incumbent utility, a Party may immediately withdraw its membership in the Authority without any financial obligation, as long as the Party provides written notice of its intent to withdraw to the Authority Board no more than fifteen days after receiving the report.
6.1.4 Continuing Financial Obligation; Further Assurances. Except as provided by Section
6.1.3, a Party that withdraws its participation in the CCA Program may be subject to certain continuing financial obligations, as described in Section 6.3. Each withdrawing Party and the Authority shall execute and deliver all further instruments and documents, and take any further action that may be reasonably necessary, as determined by the Board, to effectuate the orderly withdrawal of such Party from participation in the CCA Program.
6.2 Involuntary Termination of a Party. Participation of a Party in the CCA program may be terminated for material non-compliance with provisions of this Agreement or any other agreement relating to the Party’s participation in the CCA Program upon a vote of Board members as provided in Section 3.7.5. Prior to any vote to terminate participation with respect to a Party, written notice of the proposed termination and the reason(s) for such termination shall be delivered to the Party whose termination is proposed at least 30 days prior to the regular Board meeting at which such matter shall first be discussed as an agenda item. The written notice of proposed termination shall specify the particular provisions of this Agreement or other agreement that the Party has allegedly violated. The Party subject to possible termination shall have the opportunity at the next regular Board meeting to respond to any reasons and allegations that may be cited as a basis for termination prior to a vote regarding termination. A Party that has had its participation in the CCA Program terminated may be subject to certain continuing liabilities, as described in Section 6.3. 359
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6.3 Continuing Financial Obligations; Refund. Except as provided by Section 6.1.3, upon a withdrawal or involuntary termination of a Party, the Party shall remain responsible for any claims, demands, damages, or other financial obligations arising from the Party membership or participation in the CCA Program through the date of its withdrawal or involuntary termination, it being agreed that the Party shall not be responsible for any financial obligations arising after the date of the Party’s withdrawal or involuntary termination. Claims, demands, damages, or other financial obligations for which a withdrawing or terminated Party may remain liable include, but are not limited to, losses from the resale of power contracted for by the Authority to serve the Party’s load. With respect to such financial obligations, upon notice by a Party that it wishes to withdraw from the CCA Program, the Authority shall notify the Party of the minimum waiting period under which the Party would have no costs for withdrawal if the Party agrees to stay in the CCA Program for such period. The waiting period will be set to the minimum duration such that there are no costs transferred to remaining ratepayers. If the Party elects to withdraw before the end of the minimum waiting period, the charge for exiting shall be set at a dollar amount that would offset actual costs to the remaining ratepayers, and may not include punitive charges that exceed actual costs. In addition, such Party shall also be responsible for any costs or obligations associated with the Party’s participation in any program in accordance with the provisions of any agreements relating to such program provided such costs or obligations were incurred prior to the withdrawal of the Party. The Authority may withhold funds otherwise owing to the Party or may require the Party to deposit sufficient funds with the Authority, as reasonably determined by the Authority and approved by a vote of the Board of Directors, to cover the Party’s financial obligations for the costs described above. Any amount of the Party’s funds held on deposit with the Authority above that which is required to pay any financial obligations shall be returned to the Party. The liability of any Party under this section 6.3 is subject and subordinate to the provisions of Section 2.2, and nothing in this section 6.3 shall reduce, impair, or eliminate any immunity from liability provided by Section 2.2.
6.4 Mutual Termination. This Agreement may be terminated by mutual agreement of all the Parties; provided, however, the foregoing shall not be construed as limiting the rights of a Party to withdraw its participation in the CCA Program, as described in Section 6.1.
6.5 Disposition of Property upon Termination of Authority. Upon termination of this Agreement, any surplus money or assets in possession of the Authority for use under this Agreement, after payment of all liabilities, costs, expenses, and charges incurred under this Agreement and under any program documents, shall be returned to the then-existing Parties in proportion to the contributions made by each.
ARTICLE 7: MISCELLANEOUS PROVISIONS
7.1 Dispute Resolution. The Parties and the Authority shall make reasonable efforts to informally settle all disputes arising out of or in connection with this Agreement. Should such informal efforts to settle a dispute, after reasonable efforts, fail, the dispute shall be mediated in accordance with policies and procedures established by the Board.
7.2 Liability of Directors, Officers, and Employees. The Directors, officers, and employees of the Authority shall use ordinary care and reasonable diligence in the exercise of their powers and in the performance of their duties pursuant to this Agreement. No current or former Director, officer, 360
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or employee will be responsible for any act or omission by another Director, officer, or employee.
The Authority shall defend, indemnify and hold harmless the individual current and former Directors, officers, and employees for any acts or omissions in the scope of their employment or duties in the manner provided by Government Code Sections 995 et seq. Nothing in this section shall be construed to limit the defenses available under the law, to the Parties, the Authority, or its Directors, officers, or employees.
7.3 Indemnification of Parties. The Authority shall acquire such insurance coverage as is necessary to protect the interests of the Authority, the Parties, and the public. The Authority shall defend, indemnify, and hold harmless the Parties and each of their respective Board or Council members, officers, agents and employees, from any and all claims, losses, damages, costs, injuries, and liabilities of every kind arising directly or indirectly from the conduct, activities, operations, acts, and omissions of the Authority under this Agreement.
7.4 Amendment of this Agreement. This Agreement may not be amended except by a written amendment approved by a vote of Board members as provided in Section 3.7.5. The Authority shall provide written notice to all Parties of amendments to this Agreement, including the effective date of such amendments, at least 30 days prior to the date upon which the Board votes on such amendments.
7.5 Assignment. Except as otherwise expressly provided in this Agreement, the rights and duties of the Parties may not be assigned or delegated without the advance written consent of all of the other Parties, and any attempt to assign or delegate such rights or duties in contravention of this Section
7.5 shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the Parties. This Section 7.5 does not prohibit a Party from entering into an independent agreement with another agency, person, or entity regarding the financing of that Party’s contributions to the Authority, or the disposition of proceeds which that Party receives under this Agreement, so long as such independent agreement does not affect, or purport to affect, the rights and duties of the Authority or the Parties under this Agreement.
7.6 Severability. If one or more clauses, sentences, paragraphs or provisions of this Agreement shall be held to be unlawful, invalid or unenforceable, it is hereby agreed by the Parties, that the remainder of the Agreement shall not be affected thereby. Such clauses, sentences, paragraphs or provision shall be deemed reformed so as to be lawful, valid and enforced to the maximum extent possible.
7.7 Further Assurances. Each Party agrees to execute and deliver all further instruments and documents, and take any further action that may be reasonably necessary, to effectuate the purposes and intent of this Agreement.
7.8 Execution by Counterparts. This Agreement may be executed in any number of counterparts, and upon execution by all Parties, each executed counterpart shall have the same force and effect as an original instrument and as if all Parties had signed the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon, and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more signature pages. 361
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7.9 Parties to be Served Notice. Any notice authorized or required to be given pursuant to this Agreement shall be validly given if served in writing either personally, by deposit in the United States mail, first class postage prepaid with return receipt requested, or by a recognized courier service.
Notices given (a) personally or by courier service shall be conclusively deemed received at the time of delivery and receipt and (b) by mail shall be conclusively deemed given 48 hours after the deposit thereof (excluding Saturdays, Sundays and holidays) if the sender receives the return receipt. All notices shall be addressed to the office of the clerk or secretary of the Authority or Party, as the case may be, or such other person designated in writing by the Authority or Party. Notices given to one Party shall be copied to all other Parties. Notices given to the Authority shall be copied to all Parties.
362
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Exhibit A
Definitions
“Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.)
“Administrative Services Agreement” means an agreement or agreements entered into after the Effective Date by the Authority with an entity that will perform tasks necessary for planning, implementing, operating and administering the CCA Program or any other energy programs adopted by the Authority.
“Agreement” means this Joint Powers Agreement.
“Annual Energy Use” has the meaning given in Section 3.7.1. “Authority” means the Peninsula Clean Energy Authority. “Authority Document(s)” means document(s) duly adopted by the Board by resolution or motion implementing the powers, functions, and activities of the Authority, including but not limited to the Operating Rules and Regulations, the annual budget, and plans and policies. “Board” means the Board of Directors of the Authority.
“CCA” or “Community Choice Aggregation” means an electric service option available to cities and counties pursuant to Public Utilities Code Section 366.2. “CCA Program” means the Authority’s program relating to CCA that is principally described in Sections 2.3, 2.4, and 4.1.
“Director” means a member of the Board of Directors representing a Party. “Effective Date” means February 29, 2016 or when the County of San Mateo and at least two municipalities execute this Agreement, whichever occurs later, as further described in Section
2.1. “Implementation Plan” means the plan generally described in Section 4.1.2 of this Agreement that is required under Public Utilities Code Section 366.2 to be filed with the California Public Utilities Commission for the purpose of describing a proposed CCA Program. “Initial Costs” means all costs incurred by the County and/or Authority relating to the establishment and initial operation of the Authority, such as the hiring of a Chief Executive Officer and any administrative staff, and any required accounting, administrative, technical, or legal services in support of the Authority’s initial activities or in support of the negotiation, preparation, and approval of one or more Administrative Services Agreements.
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Exhibit A (cont.)
Definitions
“Operating Rules and Regulations” means the rules, regulations, policies, bylaws and procedures governing the operation of the Authority.
“Parties” means, collectively, any municipality or county that executes this Agreement. “Party” means a signatory to this Agreement.
“Total Annual Energy” has the meaning given in Section 3.7.1. 364
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Exhibit B
List of Parties
Parties:
Atherton
Belmont
Brisbane
Burlingame
Colma
County of San Mateo
Daly City
East Palo Alto
Foster City
Half Moon Bay
Hillsborough
Los Banos
Menlo Park
Millbrae
Pacifica
Portola Valley
Redwood City
San Bruno
San Carlos
San Mateo
South San Francisco
Woodside
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Exhibits C and D
Annual Energy Use and Voting Shares
ANNUAL ENERGY USE WITHIN PCE
JURISDICTIONS AND VOTING SHARES
Twelve Months Ended November [date]
Party Total kWh Voting
Share
SAN MATEO
COUNTY
Total 100
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THIRD AMENDED JOINT EXERCISE OF POWERS AGREEMENT RELATING TO
AND CREATING THE
PENINSULA CLEAN ENERGY AUTHORITY
This Joint Exercise of Powers Agreement, effective on the date determined by Section 2.1, is made and entered into pursuant to the provisions of Title 1, Division 7, Chapter 5, Article 1 (Sections 6500 et seq.) of the California Government Code relating to the joint exercise of powers among the Parties set forth in Exhibit B, and establishes the Peninsula Clean Energy Authority (“Authority”), is by and between the County of San Mateo (“County”) and those counties, cities and towns within the State of California who become signatories to this Agreement, and relates to the joint exercise of powers among the signatories hereto.
RECITALS
A. The Parties share various powers under California law, including but not limited to the power to purchase, supply, and aggregate electricity for themselves and customers within their jurisdictions.
B. In 2006, the State Legislature adopted AB 32, the Global Warming Solutions Act, which mandates a reduction in greenhouse gas emissions in 2020 to 1990 levels. The California Air Resources Board is promulgating regulations to implement AB 32 which will require local governments to develop programs to reduce greenhouse gas emissions.
C. The purposes for entering into this Agreement include:
a. Reducing greenhouse gas emissions related to the use of power in San Mateo County and the State of California;
b. Providing electric power and other forms of energy to customers at a competitive cost;
c. Carrying out programs to reduce energy consumption;
d. Stimulating and sustaining the local economy by developing local jobs in renewable energy; and
e. Promoting long-term electric rate stability and energy security and reliability for residents through local control of electric generation resources.
D. It is the intent of this Agreement to promote the development and use of a wide range of renewable energy sources and energy efficiency programs, including but not limited to solar, wind, and biomass energy production. The purchase of renewable power and greenhouse gas-free energy sources will be the desired approach to decrease regional greenhouse gas emissions and accelerate the State’s transition to clean power resources to the extent feasible. The Agency will also add increasing levels of locally generated renewable 367
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resources as these projects are developed and customer energy needs expand.
E. The Parties desire to establish a separate public agency, known as the Peninsula Clean Energy Authority, under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) (“Act”) in order to collectively study, promote, develop, conduct, operate, and manage energy programs.
F. The Parties anticipate adopting an ordinance electing to implement through the Authority a common Community Choice Aggregation (CCA) program, an electric service enterprise available to cities and counties pursuant to California Public Utilities Code Sections 331.1(c) and 366.2. The first priority of the Authority will be the consideration of those actions necessary to implement the CCA Program.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions hereinafter set forth, it is agreed by and among the Parties as follows:
ARTICLE 1: DEFINITIONS AND EXHIBITS
1.1 Definitions. Capitalized terms used in the Agreement shall have the meanings specified in Exhibit A, unless the context requires otherwise.
1.2 Documents Included. This Agreement consists of this document and the following exhibits, all of which are hereby incorporated into this Agreement.
Exhibit A: Definitions
Exhibit B: List of the Parties
Exhibit C: Annual Energy Use
Exhibit D: Voting Shares
Exhibit E: Signatures
ARTICLE 2: FORMATION OF PENINSULA CLEAN ENERGY AUTHORITY
2.1 Effective Date and Term. This Agreement shall become effective and Peninsula Clean Energy Authority shall exist as a separate public agency on February 29, 2016 or when the County of San Mateo and at least two municipalities execute this Agreement, whichever occurs later. The Authority shall provide notice to the Parties of the Effective Date. The Authority shall continue to exist, and this Agreement shall be effective, until this Agreement is terminated in accordance with Section 6.4, subject to the rights of the Parties to withdraw from the Authority.
2.2 Formation. There is formed as of the Effective Date a public agency named the Peninsula Clean Energy Authority. Pursuant to Sections 6506 and 6507 of the Act, the Authority is a public agency separate from the Parties. Pursuant to Sections 6508.1 of the Act, the debts, liabilities or obligations of the Authority shall not be debts, liabilities or obligations of the individual Parties 368
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unless the governing board of a Party agrees in writing to assume any of the debts, liabilities or obligations of the Authority. A Party who has not agreed to assume an Authority debt, liability or obligation shall not be responsible in any way for such debt, liability or obligation even if a majority of the Parties agree to assume the debt, liability or obligation of the Authority. Notwithstanding Section 7.4 of this Agreement, this Section 2.2 may not be amended unless such amendment is approved by the governing board of each Party.
2.3 Purpose. The purpose of this Agreement is to establish an independent public agency in order to exercise powers common to each Party to study, promote, develop, conduct, operate, and manage energy, energy efficiency and conservation, and other energy-related programs, and to exercise all other powers necessary and incidental to accomplishing this purpose. Without limiting the generality of the foregoing, the Parties intend for this Agreement to be used as a contractual mechanism by which the Parties are authorized to participate in the CCA Program, as further described in Section 4.1. The Parties intend that other agreements shall define the terms and conditions associated with the implementation of the CCA Program and any other energy programs approved by the Authority.
2.4 Powers. The Authority shall have all powers common to the Parties and such additional powers accorded to it by law. The Authority is authorized, in its own name, to exercise all powers and do all acts necessary and proper to carry out the provisions of this Agreement and fulfill its purposes, including, but not limited to, each of the following powers, subject to the voting requirements set forth in Section 3.7 through 3.7.5:
2.4.1 to make and enter into contracts;
2.4.2 to employ agents and employees, including but not limited to a Chief Executive Officer;
2.4.3 to acquire, contract, manage, maintain, and operate any buildings, infrastructure, works, or improvements;
2.4.4 to acquire property by eminent domain, or otherwise, except as limited under Section 6508 of the Act, and to hold or dispose of any property; however, the Authority shall not exercise the power of eminent domain within the jurisdiction of a Party over its objection without first meeting and conferring in good faith.
2.4.5 to lease any property;
2.4.6 to sue and be sued in its own name;
2.4.7 to incur debts, liabilities, and obligations, including but not limited to loans from private lending sources pursuant to its temporary borrowing powers such as Government Code Sections 53850 et seq. and authority under the Act;
2.4.8 to form subsidiary or independent corporations or entities if necessary, to carry out energy supply and energy conservation programs at the lowest possible cost or to take advantage of legislative or regulatory changes;
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2.4.9 to issue revenue bonds and other forms of indebtedness;
2.4.10 to apply for, accept, and receive all licenses, permits, grants, loans or other aids from any federal, state, or local public agency;
2.4.11to submit documentation and notices, register, and comply with orders, tariffs and agreements for the establishment and implementation of the CCA Program and other energy programs;
2.4.12 to adopt Operating Rules and Regulations; and
2.4.13 to make and enter into service agreements relating to the provision of services necessary to plan, implement, operate and administer the CCA Program and other energy programs, including the acquisition of electric power supply and the provision of retail and regulatory support services.
2.4.14 to permit additional Parties to enter into this Agreement after the Effective Date and to permit another entity authorized to be a community choice aggregator to designate the Authority to act as the community choice aggregator on its behalf.
2.5 Limitation on Powers. As required by Government Code Section 6509, the power of the Authority is subject to the restrictions upon the manner of exercising power possessed by San Mateo County.
2.6 Compliance with Local Zoning and Building Laws and CEQA. Unless state or federal law provides otherwise, any facilities, buildings or structures located, constructed, or caused to be constructed by the Authority within the territory of the Authority shall comply with the General Plan, zoning and building laws of the local jurisdiction within which the facilities, buildings or structures are constructed and comply with the California Environmental Quality Act (“CEQA”).
ARTICLE 3: GOVERNANCE AND INTERNAL ORGANIZATION
3.1 Board of Directors. The governing body of the Authority shall be a Board of Directors (“Board”).
The Board shall consist of 2 (two) directors appointed by the San Mateo County Board of Supervisors and 1 (one) director appointed by each County, City or Town that becomes a signatory to the Agreement (“Directors”). Each Director shall serve at the pleasure of the governing board of the Party who appointed such Director and may be removed as Director by such governing board at any time. If at any time a vacancy occurs on the Board, a replacement shall be appointed to fill the position of the previous Director within 90 days of the date that such position becomes vacant. Directors must be members of the Board of Supervisors or members of the governing board of the municipality that is the signatory to this Agreement. Each Party may appoint an alternate(s) to serve in the absence of its Director(s). Alternates may be either (1) members of the Board of Supervisors or members of the governing board of the municipality that is the signatory to this Agreement, or (2) staff members of the County or any such municipality.
3.1.1 .
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3.2 Quorum. A majority of the appointed Directors shall constitute a quorum, except that less than a quorum may adjourn from time to time in accordance with law.
3.3 Powers and Functions of the Board. The Board shall exercise general governance and oversight over the business and activities of the Authority, consistent with this Agreement and applicable law. The Board shall provide general policy guidance to the CCA Program. Board approval shall be required for any of the following actions:
3.3.1 The issuance of bonds or any other financing even if program revenues are expected to pay for such financing.
3.3.2 The hiring or termination of the Chief Executive Officer and General Counsel.
3.3.3 The appointment or removal of officers described in Section 3.9, subject to Section
3.9.3. 3.3.4 The adoption of the Annual Budget.
3.3.5 The adoption of an ordinance.
3.3.6 The approval of agreements, except as provided by Section 3.4.
3.3.7 The initiation or resolution of claims and litigation where the Authority will be the defendant, plaintiff, petitioner, respondent, cross complainant, or cross petitioner, or intervenor; provided, however, that the Chief Executive Officer or General Counsel or by delegation thereof, on behalf of the Authority, may intervene in, become a party to, or file comments with respect to any proceeding pending at the California Public Utilities Commission, the Federal Energy Regulatory Commission, or any other administrative agency, without approval of the Board as long as such action is consistent with any adopted Board policies.
3.3.8 The setting of rates for power sold by the Authority and the setting of charges for any other category of service provided by the Authority.
3.3.9 Termination of the CCA Program.
3.4 Chief Executive Officer. The Board of Directors shall appoint a Chief Executive Officer for the Authority, who shall be responsible for the day-to-day operation and management of the Authority and the CCA Program. The Chief Executive Officer may exercise all powers of the Authority, including the power to hire, discipline, and terminate employees as well as the power to approve any agreement if the total amount payable under the agreement is equal to or less than the amount specified in the Operating Rules and Regulations (Policy 15, “Delegation of Non-Energy Contract Authority”) except for the powers specifically set forth in Section 3.3 or those powers which by law must be exercised by the Board of Directors.
3.5 Commissions, Boards, and Committees. The Board may establish any advisory commissions, boards, and committees as the Board deems appropriate to assist the Board in carrying 371
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out its functions and implementing the CCA Program, other energy programs and the provisions of this Agreement which shall comply with the requirements of the Ralph M. Brown Act. The Board may establish rules, regulations, policies, bylaws or procedures to govern any such commissions, boards, or committees if the Board deems appropriate to appoint such commissions, boards or committees, and shall determine whether members shall be compensated or entitled to reimbursement for expenses.
3.6 Director Compensation. Directors shall serve without compensation from the Authority.
However, Directors may be compensated by their respective appointing authorities. The Board, however, may adopt by resolution a policy relating to the reimbursement by the Authority of expenses incurred by Directors.
3.7 Voting In general, as described below in Section 3.7.3, action by the Authority Board will be taken solely by a majority vote of the Directors present. However, as described below in Section
3.7.4, upon request of a Director, a weighted vote by shares will also be conducted. When such a request is made, an action must be approved by both a majority vote of Directors present and a majority of the weighted vote by shares present. No action may be approved solely by a vote by shares. The voting shares of Directors and approval requirements for actions of the Board shall be as follows:
3.7.1. Voting Shares.
Each Director shall have a voting share as determined by the following formula: (Annual Energy Use/Total Annual Energy) multiplied by 100, where:
(a) “Annual Energy Use” means, (i) with respect to the first year following the Effective Date, the annual electricity usage, expressed in kilowatt hours (“kWh”), within the Party’s respective jurisdiction and (ii) with respect to the period after the anniversary of the Effective Date, the annual electricity usage, expressed in kWh, of accounts within a Party’s respective jurisdiction that are served by the Authority; and
(b) “Total Annual Energy” means the sum of all Parties’ Annual Energy Use. The initial values for Annual Energy Use will be designated in Exhibit C, and shall be adjusted annually as soon as reasonably practicable after January 1, but no later than March 1 of each year. These adjustments shall be approved by the Board. (c) The combined voting share of all Directorsrepresenting the County of San Mateo shall be based upon the annual electricity usage within the unincorporated area of San Mateo County.
For the purposes of Weighted Voting, if a Party has more than one director, then the voting shares allocated to the entity shall be equally divided amongst its Directors.
3.7.2. Exhibit Showing Voting Shares. The initial voting shares will be set forth in Exhibit D. Exhibit D shall be revised no less than annually as necessary to account for changes in the number of Parties and changes in the Parties’ Annual Energy Use. Exhibit D and adjustments shall be approved by the Board.
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3.7.3. Approval Requirements Relating to CCA Program. Except as provided in Sections
3.7.4 and 3.7.5 below, action of the Board shall require the affirmative vote of a majority of Directors present at the meeting.
3.7.4. Option for Approval by Voting Shares. Notwithstanding Section 3.7.3, any Director present at a meeting may demand that approval of any matter related to the CCA Program be determined on the basis of both voting shares and by the affirmative vote of a majority of Directors present at the meeting. If a Director makes such a demand with respect to approval of any such matter, then approval of such matter shall require the affirmative vote of a majority of Directors present at the meeting and the affirmative vote of Directors having a majority of voting shares present, as determined by Section 3.7.1 except as provided in Section 3.7.5.
3.7.5. Special Voting Requirements for Certain Matters. (a) Two-Thirds and Weighted Voting Approval Requirements Relating to Sections
6.2 and 7.4. Action of the Board on the matters set forth in Section 6.2 (involuntary termination of a Party), or Section 7.4 (amendment of this Agreement) shall require the affirmative vote of at least two-thirds of Directors present; provided, however, that (i) notwithstanding the foregoing, any Director present at the meeting may demand that the vote be determined on the basis of both voting shares and by the affirmative vote of Directors, and if a Director makes such a demand, then approval shall require the affirmative vote of both at least two-thirds of Directors present and the affirmative vote of Directors having at least two-thirds of the voting shares present, as determined by Section 3.7.1; (ii) but, at least two Parties must vote against a matter for the vote to fail; and (iii) for votes to involuntarily terminate a Party under Section 6.2, the Director(s) for the Party subject to involuntary termination may not vote, and the number of Directors constituting two-thirds of all Directors, and the weighted vote of each Party shall be recalculated as if the Party subject to possible termination were not a Party.
(b) Seventy Five Percent Special Voting Requirements for Eminent Domain and Contributions or Pledge of Assets.
(i) A decision to exercise the power of eminent domain on behalf of the Authority to acquire any property interest other than an easement, right-of-way, or temporary construction easement shall require a vote of at least 75% of all Directors. (ii) The imposition on any Party of any obligation to make contributions or pledge assets as a condition of continued participation in the CCA Program shall require a vote of at least 75% of all Directors and the approval of the governing boards of the Parties who are being asked to make such contribution or pledge. (iii) Notwithstanding the foregoing, any Director present at the meeting may demand that a vote under subsections (i) or (ii) be determined on the basis of voting shares and by the affirmative vote of Directors, and if a Director makes such a demand, then approval shall require both the affirmative vote of at least 75% of 373
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Directors present and the affirmative vote of Directors having at least 75% of the voting shares present, as determined by Section 3.7.1, but at least two Parties must vote against a matter for the vote to fail. For purposes of this section, “imposition on any Party of any obligation to make contributions or pledge assets as a condition of continued participation in the CCA Program” does not include any obligations of a withdrawing or terminated party imposed under Section 6.3.
3.8 Meetings and Special Meetings of the Board. The Board shall hold at least six regular meetings per year, but the Board may provide for the holding of regular meetings at more frequent intervals. The date, hour and place of each regular meeting shall be fixed by resolution or ordinance of the Board. Regular meetings may be adjourned to another meeting time. Special and Emergency Meetings of the Board may be called in accordance with the provisions of California Government Code Sections 54956 and 54956.5. Directors may participate in meetings telephonically, with full voting rights, only to the extent permitted by law. All meetings shall be conducted in accordance with the provisions of the Ralph M. Brown Act (California Government Code Sections 54950 et seq.).
3.9 Selection of Board Officers.
3.9.1 Chair and Vice Chair. The Directors shall select, from among themselves, a Chair, who shall be the presiding officer of all Board meetings, and a Vice Chair, who shall serve in the absence of the Chair. The term of office of the Chair and Vice Chair shall be specified in the Operating Rules and Regulations (Policy 16, “Policies and Procedures for Board of Directors, Committees, and Advisory Groups”). The office of either the Chair or Vice Chair shall be declared vacant and a new selection shall be made if:
(a) the person serving dies, resigns, or the Party that the person represents removes the person as its representative on the Board or
(b) the Party that he or she represents withdraws from the Authority pursuant to the provisions of this Agreement.
3.9.2 Secretary. The Board shall appoint a Secretary, who need not be a member of the Board, who shall be responsible for keeping the minutes of all meetings of the Board and all other official records of the Authority.
3.9.3 Treasurer and Auditor. The Chief Financial Officer shall, among other duties, act as the Treasurer for the Authority. Unless otherwise exempted from such requirement, the Authority shall cause an independent audit to be made by a certified public accountant, or public accountant, in compliance with Section 6505 of the Act. The Treasurer shall act as the depository of the Authority and have custody of all the money of the Authority, from whatever source, and as such, shall have all of the duties and responsibilities specified in Section 6505.5 of the Act. The Treasurer shall report directly to the Board and shall comply with the requirements of treasurers of incorporated municipalities. The Board may transfer the responsibilities of Treasurer to any person or entity as the law may provide at the time.
The duties and obligations of the Treasurer are further specified in Article 5.
3.10 Administrative Services Provider. The Board may appoint one or more administrative 374
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services providers to serve as the Authority’s agent for planning, implementing, operating and administering the CCA Program, and any other program approved by the Board, in accordance with the provisions of an Administrative Services Agreement. The appointed administrative services provider may be one of the Parties. An Administrative Services Agreement shall set forth the terms and conditions by which the appointed administrative services provider shall perform or cause to be performed all tasks necessary for planning, implementing, operating and administering the CCA Program and other approved programs. The Administrative Services Agreement shall set forth the term of the Agreement and the circumstances under which the Administrative Services Agreement may be terminated by the Authority. This section shall not in any way be construed to limit the discretion of the Authority to hire its own employees to administer the CCA Program or any other program.
ARTICLE 4: IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
4.1 Preliminary Implementation of the CCA Program.
4.1.1 Enabling Ordinance. To be eligible to participate in the CCA Program, each Party must adopt an ordinance in accordance with Public Utilities Code Section 366.2(c)(12) for the purpose of specifying that the Party intends to implement a CCA Program by and through its participation in the Authority.
4.1.2 Implementation Plan. The Authority shall cause to be prepared an Implementation Plan meeting the requirements of Public Utilities Code Section 366.2 and any applicable Public Utilities Commission regulations as soon after the Effective Date as reasonably practicable. The Implementation Plan shall not be filed with the Public Utilities Commission until it is approved by the Board in the manner provided by Section 3.7.3.
4.1.3 Termination of CCA Program. Nothing contained in this Article or this Agreement shall be construed to limit the discretion of the Authority to terminate the implementation or operation of the CCA Program at any time in accordance with any applicable requirements of state law.
4.2 Authority Documents. The Parties acknowledge and agree that the affairs of the Authority will be implemented through various documents duly adopted by the Board through Board resolution.
The Parties agree to abide by and comply with the terms and conditions of all such documents that may be adopted by the Board, subject to the Parties’ right to withdraw from the Authority as described in Article 6.
4.3 Addition of Parties. Other incorporated municipalities and counties may become Parties subject to all applicable terms of this Agreement, including but not limited to those in Article 6, upon (a) the adoption of a resolution by the governing body of such incorporated municipality or such county requesting that the incorporated municipality or county, as the case may be, become a member of the Authority, (b) the adoption, by an affirmative vote of the Board satisfying the requirements described in Section 3.7, of a resolution authorizing membership of the additional incorporated municipality or county, specifying the membership payment, if any, to be made by the additional incorporated municipality or county to reflect its pro rata share of organizational, planning and other 375
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pre-existing expenditures, and describing additional conditions, if any, associated with membership, (c) the adoption of an ordinance required by Public Utilities Code Section 366.2(c)(12) and execution of this Agreement and other necessary program agreements by the incorporated municipality or county as required by the Board, (d) payment of the membership payment, if any, and (e) satisfaction of any conditions established by the Board.
4.3.1 Continuing Participation. The Parties acknowledge that membership in the Authority may change by the addition and/or withdrawal or termination of Parties. The Parties agree to participate with such other Parties as may later be added, as described in Section 4.3. The Parties also agree that the withdrawal or termination of a Party shall not affect this Agreement or the remaining Parties’ continuing obligations under this Agreement.
4.3.2 Termination by Additional Parties. In addition to any financial obligations under Article 6, and in the events that the Board does not require a membership payment to reflect the additional party’s pro rata share of organizational planning and other pre-existing expenditures as allowed by Section
4.3(b) and the additional party withdraws its membership in the Authority within the first five years of becoming a party, the party shall be obligated to reimburse the Authority for all the costs related to the cost of launch, including but not limited to the costs of updating the Implementation Plan and mailings to party’s accounts.
ARTICLE 5: FINANCIAL PROVISIONS
5.1 Fiscal Year. The Authority’s fiscal year shall be 12 months commencing July 1 or the date selected by the Agency and ending June 30. The fiscal year may be changed by Board resolution.
5.2 Depository.
5.2.1 All funds of the Authority shall be held in separate accounts in the name of the Authority and not commingled with funds of any Party or any other person or entity.
5.2.2 All funds of the Authority shall be strictly and separately accounted for, and regular reports shall be rendered of all receipts and disbursements, at least quarterly during the fiscal year. The books and records of the Authority shall be open to inspection by the Parties at all reasonable times. The Board shall contract with a certified public accountant or public accountant to make an annual audit of the accounts and records of the Authority, which shall be conducted in accordance with the requirements of Section 6505 of the Act.
5.2.3 All expenditures shall be made in accordance with the approved budget and upon the approval of any officer so authorized by the Board in accordance with its Operating Rules and Regulations. The Treasurer shall draw checks or warrants or make payments by other means for claims or disbursements not within an applicable budget only upon the prior approval of the Board.
5.3 Budget and Recovery of Costs.
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5.3.1 Budget. The annual budget shall be approved by the Board. Staff shall report to the Board quarterly budget results and any significant budget variances. The Board may revise the budget as needed to address any significant changes and/or unexpected expenses incurred.
5.3.2 Funding of Initial Costs. The County of San Mateo has funded certain activities necessary to implement the CCA Program. If the CCA Program becomes operational, these Initial Costs paid by the County of San Mateo shall be included in the customer charges for electric services as provided by Section 5.3.3 to the extent permitted by law, and the County of San Mateo shall be reimbursed from the payment of such charges by customers of the Authority. Prior to such reimbursement, the County of San Mateo shall provide such documentation of costs paid as the Board may request. The Authority may establish a reasonable time period over which such costs are recovered. In the event that the CCA Program does not become operational, the County of San Mateo shall not be entitled to any reimbursement of the Initial Costs it has paid from the Authority or any Party.
5.3.3 CCA Program Costs. The Parties desire that all costs incurred by the Authority that are directly or indirectly attributable to the provision of electric, conservation, efficiency, incentives, financing, or other services provided under the CCA Program, including but not limited to the establishment and maintenance of various reserves and performance funds and administrative, accounting, legal, consulting, and other similar costs, shall be recovered through charges to CCA customers receiving such electric services, or from revenues from grants or other third-party sources.
ARTICLE 6: WITHDRAWAL AND TERMINATION
6.1 Withdrawal.
6.1.1 Right to Withdraw. A Party may withdraw its participation in the CCA Program, effective as of the beginning of the Authority’s fiscal year, by giving no less than 12 months advance written notice of its election to do so, which notice shall be given to the Authority and each Party. Withdrawal of a Party shall require an affirmative vote of the Party’s governing board.
6.1.2 Right to Withdraw After Amendment. Notwithstanding Section 6.1.1, a Party may withdraw its membership in the Authority following an amendment to this Agreement adopted by the Board which the Party’s Director(s) voted against provided such notice is given in writing within thirty (30) days following the date of the vote. Withdrawal of a Party shall require an affirmative vote of the Party’s governing board and shall not be subject to the six month advance notice provided in Section 6.1.1. In the event of such withdrawal, the Party shall be subject to the provisions of Section 6.3.
6.1.3 The Right to Withdraw Prior to Program Launch. After receiving bids from power suppliers, the Authority must provide to the Parties the report from the electrical utility consultant retained by the Authority that compares the total estimated electrical rates that 377
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the Authority will be charging to customers as well as the estimated greenhouse gas emissions rate and the amount of estimated renewable energy used with that of the incumbent utility. If the report provides that the Authority is unable to provide total electrical rates, as part of its baseline offering, to the customers that are equal to or lower than the incumbent utility or to provide power in a manner that has a lower greenhouse gas emissions rate or uses more renewable energy than the incumbent utility, a Party may immediately withdraw its membership in the Authority without any financial obligation, as long as the Party provides written notice of its intent to withdraw to the Authority Board no more than fifteen days after receiving the report.
6.1.4 Continuing Financial Obligation; Further Assurances. Except as provided by Section
6.1.3, a Party that withdraws its participation in the CCA Program may be subject to certain continuing financial obligations, as described in Section 6.3. Each withdrawing Party and the Authority shall execute and deliver all further instruments and documents, and take any further action that may be reasonably necessary, as determined by the Board, to effectuate the orderly withdrawal of such Party from participation in the CCA Program.
6.2 Involuntary Termination of a Party. Participation of a Party in the CCA program may be terminated for material non-compliance with provisions of this Agreement or any other agreement relating to the Party’s participation in the CCA Program upon a vote of Board members as provided in Section 3.7.5. Prior to any vote to terminate participation with respect to a Party, written notice of the proposed termination and the reason(s) for such termination shall be delivered to the Party whose termination is proposed at least 30 days prior to the regular Board meeting at which such matter shall first be discussed as an agenda item. The written notice of proposed termination shall specify the particular provisions of this Agreement or other agreement that the Party has allegedly violated. The Party subject to possible termination shall have the opportunity at the next regular Board meeting to respond to any reasons and allegations that may be cited as a basis for termination prior to a vote regarding termination. A Party that has had its participation in the CCA Program terminated may be subject to certain continuing liabilities, as described in Section 6.3.
6.3 Continuing Financial Obligations; Refund. Except as provided by Section 6.1.3, upon a withdrawal or involuntary termination of a Party, the Party shall remain responsible for any claims, demands, damages, or other financial obligations arising from the Party membership or participation in the CCA Program through the date of its withdrawal or involuntary termination, it being agreed that the Party shall not be responsible for any financial obligations arising after the date of the Party’s withdrawal or involuntary termination. Claims, demands, damages, or other financial obligations for which a withdrawing or terminated Party may remain liable include, but are not limited to, losses from the resale of power contracted for by the Authority to serve the Party’s load. With respect to such financial obligations, upon notice by a Party that it wishes to withdraw from the CCA Program, the Authority shall notify the Party of the minimum waiting period under which the Party would have no costs for withdrawal if the Party agrees to stay in the CCA Program for such period. The waiting period will be set to the minimum duration such that there are no costs transferred to remaining ratepayers. If the Party elects to withdraw before the end of the minimum waiting period, the charge for exiting shall be set at a dollar amount that would offset actual costs to the remaining ratepayers, and may not include punitive charges that exceed actual costs. In addition, such Party shall also be responsible for any costs or obligations associated with the Party’s participation in any program in accordance with the provisions of any agreements relating to such program provided such costs or 378
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obligations were incurred prior to the withdrawal of the Party. The Authority may withhold funds otherwise owing to the Party or may require the Party to deposit sufficient funds with the Authority, as reasonably determined by the Authority and approved by a vote of the Board of Directors, to cover the Party’s financial obligations for the costs described above. Any amount of the Party’s funds held on deposit with the Authority above that which is required to pay any financial obligations shall be returned to the Party. The liability of any Party under this section 6.3 is subject and subordinate to the provisions of Section 2.2, and nothing in this section 6.3 shall reduce, impair, or eliminate any immunity from liability provided by Section 2.2.
6.4 Mutual Termination. This Agreement may be terminated by mutual agreement of all the Parties; provided, however, the foregoing shall not be construed as limiting the rights of a Party to withdraw its participation in the CCA Program, as described in Section 6.1.
6.5 Disposition of Property upon Termination of Authority. Upon termination of this Agreement, any surplus money or assets in possession of the Authority for use under this Agreement, after payment of all liabilities, costs, expenses, and charges incurred under this Agreement and under any program documents, shall be returned to the then-existing Parties in proportion to the contributions made by each.
ARTICLE 7: MISCELLANEOUS PROVISIONS
7.1 Dispute Resolution. The Parties and the Authority shall make reasonable efforts to informally settle all disputes arising out of or in connection with this Agreement. Should such informal efforts to settle a dispute, after reasonable efforts, fail, the dispute shall be mediated in accordance with policies and procedures established by the Board.
7.2 Liability of Directors, Officers, and Employees. The Directors, officers, and employees of the Authority shall use ordinary care and reasonable diligence in the exercise of their powers and in the performance of their duties pursuant to this Agreement. No current or former Director, officer, or employee will be responsible for any act or omission by another Director, officer, or employee.
The Authority shall defend, indemnify and hold harmless the individual current and former Directors, officers, and employees for any acts or omissions in the scope of their employment or duties in the manner provided by Government Code Sections 995 et seq. Nothing in this section shall be construed to limit the defenses available under the law, to the Parties, the Authority, or its Directors, officers, or employees.
7.3 Indemnification of Parties. The Authority shall acquire such insurance coverage as is necessary to protect the interests of the Authority, the Parties, and the public. The Authority shall defend, indemnify, and hold harmless the Parties and each of their respective Board or Council members, officers, agents and employees, from any and all claims, losses, damages, costs, injuries, and liabilities of every kind arising directly or indirectly from the conduct, activities, operations, acts, and omissions of the Authority under this Agreement.
7.4 Amendment of this Agreement. This Agreement may not be amended except by a written amendment approved by a vote of Board members as provided in Section 3.7.5. The Authority shall provide written notice to all Parties of amendments to this Agreement, including the effective date 379
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of such amendments, at least 30 days prior to the date upon which the Board votes on such amendments.
7.5 Assignment. Except as otherwise expressly provided in this Agreement, the rights and duties of the Parties may not be assigned or delegated without the advance written consent of all of the other Parties, and any attempt to assign or delegate such rights or duties in contravention of this Section
7.5 shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the Parties. This Section 7.5 does not prohibit a Party from entering into an independent agreement with another agency, person, or entity regarding the financing of that Party’s contributions to the Authority, or the disposition of proceeds which that Party receives under this Agreement, so long as such independent agreement does not affect, or purport to affect, the rights and duties of the Authority or the Parties under this Agreement.
7.6 Severability. If one or more clauses, sentences, paragraphs or provisions of this Agreement shall be held to be unlawful, invalid or unenforceable, it is hereby agreed by the Parties, that the remainder of the Agreement shall not be affected thereby. Such clauses, sentences, paragraphs or provision shall be deemed reformed so as to be lawful, valid and enforced to the maximum extent possible.
7.7 Further Assurances. Each Party agrees to execute and deliver all further instruments and documents, and take any further action that may be reasonably necessary, to effectuate the purposes and intent of this Agreement.
7.8 Execution by Counterparts. This Agreement may be executed in any number of counterparts, and upon execution by all Parties, each executed counterpart shall have the same force and effect as an original instrument and as if all Parties had signed the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon, and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more signature pages.
7.9 Parties to be Served Notice. Any notice authorized or required to be given pursuant to this Agreement shall be validly given ifserved in writing either personally, by deposit in the United States mail, first class postage prepaid with return receipt requested, or by a recognized courier service.
Notices given (a) personally or by courier service shall be conclusively deemed received at the time of delivery and receipt and (b) by mail shall be conclusively deemed given 48 hours after the deposit thereof (excluding Saturdays, Sundays and holidays) if the sender receives the return receipt. All notices shall be addressed to the office of the clerk or secretary of the Authority or Party, as the case may be, or such other person designated in writing by the Authority or Party. Notices given to one Party shall be copied to all other Parties. Notices given to the Authority shall be copied to all Parties. 380
Effective 2/29/16 as Amended
03/28/19 and 10/22/20
Exhibit A
Definitions
“Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.)
“Administrative Services Agreement” means an agreement or agreements entered into after the Effective Date by the Authority with an entity that will perform tasks necessary for planning, implementing, operating and administering the CCA Program or any other energy programs adopted by the Authority.
“Agreement” means this Joint Powers Agreement.
“Annual Energy Use” has the meaning given in Section 3.7.1. “Authority” means the Peninsula Clean Energy Authority. “Authority Document(s)” means document(s) duly adopted by the Board by resolution or motion implementing the powers, functions, and activities of the Authority, including but not limited to the Operating Rules and Regulations, the annual budget, and plans and policies. “Board” means the Board of Directors of the Authority.
“CCA” or “Community Choice Aggregation” means an electric service option available to cities and counties pursuant to Public Utilities Code Section 366.2. “CCA Program” means the Authority’s program relating to CCA that is principally described in Sections 2.3, 2.4, and 4.1.
“Director” means a member of the Board of Directors representing a Party. “Effective Date” means February 29, 2016 or when the County of San Mateo and at least two municipalities execute this Agreement, whichever occurs later, as further described in Section
2.1. “Implementation Plan” means the plan generally described in Section 4.1.2 of this Agreement that is required under Public Utilities Code Section 366.2 to be filed with the California Public Utilities Commission for the purpose of describing a proposed CCA Program. “Initial Costs” means all costs incurred by the County and/or Authority relating to the establishment and initial operation of the Authority, such as the hiring of a Chief Executive Officer and any administrative staff, and any required accounting, administrative, technical, or legal services in support of the Authority’sinitial activities or in support of the negotiation, preparation, and approval of one or more Administrative Services Agreements.
381
Effective 2/29/16 as Amended
03/28/19 and 10/22/20
Exhibit A (cont.)
Definitions
“Operating Rules and Regulations” means the rules, regulations, policies, bylaws and procedures governing the operation of the Authority.
“Parties” means, collectively, any municipality or county that executes this Agreement. “Party” means a signatory to this Agreement.
“Total Annual Energy” has the meaning given in Section 3.7.1. 382
Effective 2/29/16 as Amended
03/28/19 and 10/22/20
Exhibit B
List of Parties
Parties:
Atherton
Belmont
Brisbane
Burlingame
Colma
County of San Mateo
Daly City
East Palo Alto
Foster City
Half Moon Bay
Hillsborough
Los Banos
Menlo Park
Millbrae
Pacifica
Portola Valley
Redwood City
San Bruno
San Carlos
San Mateo
South San Francisco
Woodside
383
Effective 2/29/16 as Amended
03/28/19 and 10/22/20
Exhibits C and D
Annual Energy Use and Voting Shares
ANNUAL ENERGY USE WITHIN PCE
JURISDICTIONS AND VOTING SHARES
Twelve Months Ended November [date]
Party Total kWh Voting
Share
SAN MATEO
COUNTY
Total 100
384
DATE: June 14, 2024
MEETING DATE: June 27, 2024
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Kim Le, Director of Data and Technology
SUBJECT: Data and Technology Department Quarterly Report Item No. 19
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
BACKGROUND
Data and Technology at Peninsula Clean Energy is responsible for storing and processing large amounts of data from various sources, such as customer load usage and energy market data, and ensuring accuracy and accessibility for analysis and decision-making. The other side of this department is in IT, which plays a key role in maintaining the software systems, and keeping the technology gremlins at bay.
Data and Technology continues to move forward on progress and developments within our department to support the overall business operations. Over the past quarter, significant strides have been made in enhancing our technological infrastructure, optimizing data management processes, and driving efficiency with automations and standardizing operating procedures.
DISCUSSION
Current high-level priorities and initiatives for this department:
1. Continuous refinement of analytical approaches to drive informed decision-making
2. Building out and enriching our in-house data warehouse and capabilities
3. Enhancing our tech infrastructure and building internal standard operating procedures
4. Fortifying PCE's digital infrastructure against cyber threats, ensuring the integrity of data and systems
The Data Updates
In July, the Data team will be welcoming a new Data Engineer, Andy Wang. The new Data Engineer will be working to support our data warehouse and dashboards. His focus will be expanding and enhancing our data and data pipeline architecture, improving data flow and collection for cross functional teams, as well as building dashboards and reporting tools.
This past quarter, the department built out more internal dashboards and took a deep dive into PCE's Top 200 strategic accounts with the Account Services team. The department wrapped up the EV Analysis project with results of the study anonymized and shared with UC Davis for further research on EV charging behavior. As Programs is ramping up on the GovPV project, we have completed our proof-385 of-concept billing dashboard for the site usage and cost tracking. The EV Detection 2.0 model continues to be a focus on the department's work as new data is added to the machine learning algorithm and further refine the detection process.
The IT Updates
PCE has fully launched with our new internal IT ticketing system built on HappyFox and it has been a huge success. Cassius Gray deserves recognition for leading this project. The HappyFox ticketing system creates a more streamlined and systematic approach to tracking staff IT issues across the board.
The IT department is also using HappyFox to build out PCE's Knowledge Base for each team to share knowledge articles cross-functionally in a more organized way. Chris Duarte effectively completed the Hybrid Conference Rom 2.0 project with hybrid meeting quality showing a significant improvement since he took on the project at beginning of the year. The IT department has also been working on Zoom SMS Campaign compliance as well as better monitoring under PCE's managed device system. 386
DATE: June 17, 2024
MEETING DATE: June 27, 2024
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Marc Hershman, Director of Government Affairs
SUBJECT: Update on Legislative Activities
Item No. 20
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
DISCUSSION
SACRAMENTO SUMMARY
There has been significant recent focus in Sacramento on the state budget.
The state Legislature passed its version of a budget on June 13, meeting the Constitutional deadline of June 15. However, the Legislature’s budget differs significantly from the proposed budget authored by the Governor. Negotiations are ongoing as of the preparation of this report.
As of this writing, Peninsula Clean Energy (PCE) has taken an official position on nine bills.
Please see the attached Matrix for details of those bills and other bills where we are monitoring and engaging. Also attached are letters of support for AB 817 (Pacheco), AB 2513 (Pellerin), AB 2815 (Petrie-Norris), and AB 2083 (Berman) submitted by Peninsula Clean Energy since the last Legislative Update.
State Budget
In May, Governor Newsom provided an overview of his revised budget. The budget suggests that he is looking to not only solve the deficit for the year ahead but also address the 2025-26 projected deficit of $28.4 billion. The Governor has proposed drawing down $13.1 billion in reserves over the next two years and $26 billion in cuts. Additionally, there are increased deferrals of funding to future years and shifting fund sources from the General Fund to other special funds.
To begin to address the growing deficit, the Governor met with legislative leaders. An agreement between the Governor and Legislators was reached and a bill, AB 206 (Gabriel), was passed and signed. AB 206 reduced expenditures by $17 billion. In addition, roughly $13 billion was withdrawn from various state savings accounts. Most of the savings from AB 206 were from canceling or delaying previously authorized expenditures and other accounting measures, such as delaying state worker paychecks slightly to place them in a different fiscal 387
year.
On June 13, the Legislature passed a budget, meeting the June 15 state Constitutional deadline. The Governor must sign or veto that budget no later than June 27. As we have seen in recent years, there may be budget “trailer bills” introduced through the end of the legislative session which amend statutes to reflect the budget plan.
One area that has drawn attention is the omission from the Legislature’s budget of funding for the extension of Diablo Canyon. The Legislature instead reverted to the general fund $400 million intended to be paid to PG&E as part of a $1.4 billion loan extended to the company two years ago to keep the nuclear plant online through 2030.
Additionally, the Governor has not provided direct comment on whether he would like to move forward with the placement of a climate bond on the November 2024 ballot. Intense negotiations between the Governor and the Legislature as to whether there will be a climate bond and what that might look like are ongoing.
California Department of Housing and Community Development The California Department of Housing and Community Development (HCD) has released its Initial Statement of Reasons for Proposed Building Standards. HCD has proposed adopting their Code Advisory Committee's recommendation with respect to installation of Level 1 chargers in multi-family buildings.
Peninsula Clean Energy had provided the language adopted by the CAC and which is now part of the HCD draft building standards.
Under this new provision, if adopted after the closing of the 45-day comment period in July, the placement of new Level 1 chargers will now be allowed in these buildings without triggering the requirement that Level 2 chargers instead be installed. The importance of this change for reaching the state's climate goals and the expansion of EV use was cited.
This huge win for the advancement of EV chargers in multi-family buildings was made possible by Peninsula Clean Energy’s leadership with the strong and effective support of Senator Becker and Assemblymember Berman. PCE deeply appreciates their support and also appreciates the letters supporting PCE's position from CalCCA, other CCAs, and CalETC.
PCE will continue to monitor the progress of the proposal and will report back to the Board with any further developments.
Federal Engagement
Both of California’s U.S. Senators, Alex Padilla and Laphonza Butler, have submitted the Peninsula Clean Energy request for funding to support the low-income home upgrade program to the Senate Appropriations Committee for inclusion in the Transportation, Housing and Urban Development Appropriations.
Both U.S. Senators had a lengthy list of projects that they believe merit funding; inclusion on the list does not guarantee funding. The lists will most certainly be pared down significantly when heard in committee. It is likely that the final bills will not be considered until Congress returns after the November election.
388
PCE will continue to work with both of our Senator’s offices to answer any questions they may have and to support the advancement of our funding request. (Public Policy Objective B, Key Tactic 1)
FISCAL IMPACT
Not applicable.
ATTACHMENTS:
5.28.24.AB 817 (Pacheco) Support.PDF
AB 2513 Support 5.30.24.pdf
6.3.24.AB 2815 SB 1130.pdf
6.6.24.AB 2083 (Berman) Support.pdf
June Bill Matrix_MF.docx.pdf
389
390
391
a____
_-_-
LJ
PENINSULA
CLEAN ENERGY
San Mateo County I Atherton I Belmont I Brisbarie I Burlingame I Colma I Daly City I East Palo Alto I Foster City Half Moon Bay I Hillsborough I Los Banos I Millbrae I Menlo Park I Pacifica I Portola Valley I Redwood City I San Bruno I San Carlos San Mateo ( South San Francjsco I Woods(.de
May 30, 2024
The Honorable Ben Allen
Chair, Senate Environmental Quality Committee
10210 St., Ste. 6610
Sacramento, CA 95814
Re: AB 2513 (Pellerin) -SUPPORT
Dear Senator Allen,
On behalf of Peninsula Clean Energy Authority (PCE), a community choice aggregator (CCA) serving roughly 800,000 Caljfomians jn Sam Mateo County and Los Banos in Merced County, I write in support of AB 2513 (Pellerin), which will ensure that Califomians are aware of the health harming impacts of fossil gas combustion in stoves and ranges.
Peninsula Clean Energy is proud to offer several programs to its customers to facilitate the transition to zero-emission appliances including heat-pumps, heat-pump water heaters, and induction stoves. We also bring our residents to experience all-electric homes and see demonstrations of induction cooktops. We are engaged in this transition as we understand the planet harming greenhouse gas emissions associated with fossil gas combustion as well as the associated human-health impacts. A 2023 study from Stanford's Doerr School of Sustainability and PSE Healthy Energy, a nonprofit research institute, found that gas stoves can also emit amounts of benzene that can lead to indoor concentrations that exceed health benchmarks.
Long-term exposure to Benzene can lead to leukemia and other blood-related cancers, while high levels of short-term exposure can affect the nervous system.
AB 2513 will help ensure that the findings of this research reaches more Californians as it would require all gas stoves manufactured after January 1, 2025 for sale in California have a conspicuous label waning prospective buyers that gas stoves or ranges can release nitrogen dioxide, carbon monoxide, and benzene that creates concentrations exceeding the standards of the Office of Environmental Health Hazard Assessment and the United States Environmental Protection Agency's standards for outdoor air quality.
We are pleased to support AB 2513 and we thank Assemblymember Pellerin for authoring this important piece of legislation. We respectfully request your aye vote on AB 2513.
Marc Hershinan
Director of Government Affairs
2075 Woodside Roac! I Redwood City, CA I 94061
(650) 260-0005 I peninsulacleanenergy.com
-,`-\L.,:.:.-,--
392
393
394
395
396
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
AB 817 (Pacheco)
Brown Act
Exemption:
Advisory
Committees
This bill, until January 1, 2026, would authorize a
subsidiary body, defined as one that serves
exclusively in an advisory capacity and has no
final decision-making authority, to use similar
alternative teleconferencing provisions and
would impose requirements for notice, agenda,
and public participation, as prescribed. To use
teleconferencing pursuant to this act, the bill
would require the legislative body that
established the subsidiary body by charter,
ordinance, resolution, or other formal action to
make specified findings by majority vote before
the subsidiary body uses teleconferencing for
the first time and every 12 months thereafter.
Failed to pass
Senate Local
Government
Committee, but
granted
reconsideration
Awaiting referral to
a Senate Policy
Committee
Support Support This bill started
last year and
moved through
the Assembly in
January as a
two-year bill.
This bill’s
impact on
Peninsula Clean
Energy will be
limited to the
Community
Advisory
Committee
AB 1359 (Papan)
CEQA: Geothermal
Exploratory
Projects
This bill would repeal the requirement that the
Geologic Energy Management Division in the
Department of Conservation be the lead agency
for all geothermal exploratory projects for
purposes of CEQA. This bill would declare that it
is to take effect immediately as an urgency
statute.
Scheduled for June
18, 2024, hearing in
Senate Committee
on Environmental
Quality
Passed the Senate
Committee on
Natural Resources
& Water
Considering
Support
None This bill was
brought to Asm.
Papan at the
request of
Sonoma Clean
Power to
facilitate
additional
geothermal
projects
AB 1550 (Bennett) Would define green hydrogen as hydrogen produced utilizing non biogas/biomass
Dead None None
397
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
Green Hydrogen
Standard
renewable electricity to electrolyze water into
hydrogen. Also defines renewable hydrogen as
hydrogen produced utilizing renewable
electricity, except for dairy biogas, to electrolyze
water into hydrogen The bill would require all
hydrogen used in transportation and energy
sectors to be green or renewable by 2045.
2-year bill that
failed to pass the
Assembly by 1/31
deadline
AB 1567 (Garcia)
Climate Bond
Proposes a $15.9 billion climate resilience bond
to fund programs responding to drought/flood,
wildfire, sea-level rise, etc. The bond proposes
$2 billion for energy resilience programs such as
zero-emission vehicle infrastructure and clean
energy transmission projects.
2-year bill currently
pending in Senate
Committee on
Natural Resources
& Water
None None Bond measures
must be signed
by the
Governor by
June 27 for
placement on
the November 5
ballot.
AB 1852 (Pacheco)
Clean Power
Alliance
Current law makes certain information
presented to the joint powers agency in closed
session confidential, and authorizes a member
of the legislative body of a local agency member
to disclose certain information obtained in a
closed session to legal counsel of that member
local agency or to other members of the
legislative body of that local agency in a closed
session. Current law further authorizes the
Clean Power Alliance of Southern California to
Passed Legislature.
Awaiting Governor
Newsom’s
signature or veto
None None This bill is
sponsored by
the Clean
Power Alliance
398
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
authorize a designated alternate member of its
legislative body who is not a member of the
legislative body of a local agency member to
attend its closed sessions and to make similar
disclosures described above. Current law repeals
these provisions relating to the Clean Power
Alliance of Southern California on January 1,
2025. This bill would extend that repeal date to
January 1, 2030.
AB 1912 (Pacheco) Would require, before holding a committee hearing on a bill that proposes a new or
modifies an existing requirement imposed on an
IOU or proposes a new or modifies an existing
program that would be paid for by IOU
ratepayers, that a request be made to the
University of California, Berkeley, to prepare a
written analysis of the bill assessing impacts to
rates, other potential funding sources, etc.
Referred to Senate
Committee Energy,
Utilities, &
Communications
None None
AB 1921 (Papan)
Linear Generators
This bill would expand the definition of
“renewable electrical generation facility”, for
purposes of compliance with the Renewable
Portfolio Standard (RPS), to include a facility that
uses linear generators using RPS eligible fuels.
Scheduled for June
18, 2024, hearing in
Senate Committee
on Energy, Utilities,
& Communications
None None This bill is
sponsored by
Mainspring, a
company
located in
Menlo Park
399
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
AB 1999 (Irwin)
Fixed Charges
The bill would permit the PUC to authorize fixed
charges that, as of January 1, 2015, do not
exceed $5 per residential customer account per
month for low-income customers enrolled in the
California Alternate Rates for Energy (CARE)
program and that do not exceed $10 per
residential customer account per month for
customers not enrolled in the CARE program.
The bill would authorize these maximum
allowable fixed charges to be adjusted by no
more than the annual percentage increase in
the Consumer Price Index for the prior calendar
year, beginning January 1, 2016.
Held on Assembly
Appropriations
Suspense File and is
now dead
None None This bill is in
response to the
Income
Graduated
Fixed Charge
proceeding at
the CPUC as
authorized by
AB 205 (2022).
The CPUC voted
4-0 to institute
a fixed charge
of $24.15 per
month with
reduced fixed
charges for
FERA and CARE
customers
AB 2037 (Papan)
County Sealers: EV
Chargers
This bill would grant county sealers jurisdiction
over publicly operated electric vehicle (EV)
chargers. Existing law requires county sealers to
test all weighing and measuring devices used for
commercial purposes in the counties in which
they have jurisdiction. This includes
privately-operated EV chargers. However, a 1977
Attorney General (AG) opinion limited the
Scheduled for June
18, 2024, hearing in
the Senate
Committee on
Judiciary.
Passed the Senate
Committee on
None None
400
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
jurisdiction of county sealers by excluding
publicly owned weighing and measuring
devices. This did not present an issue until
recently, when cities and counties began owning
and operating many commercial EV chargers.
Business &
Professions
AB 2054
(Bauer-Kahan)
PUC Commissioners
This bill would prohibit a member of the Energy
Commission or the CPUC from being employed
by an entity subject to regulation by the Energy
Commission or CPUC for a period of 1 year after
ceasing to be a member of the commission.
Referred to
Assembly
Committee on
Appropriations
Passed Assembly
Committee on
Utilities & Energy
Removing
Support
None The
amendments
have weakened
the bill to the
point we are no
longer
supporting the
bill
AB 2083 (Berman)
Industrial
Decarbonization
This bill would require the commission, on or
before July 1, 2026, to assess the potential for
the state to reduce the emissions of greenhouse
gasses from the state’s industrial facilities’ heat
application equipment and processes
Manufacturing Sector, as classified by the North
American Industry Classification System, by at
least 85% below 1990 levels by January 1, 2045,
as specified.
Scheduled for June
18, 2024, hearing in
Senate Committee
Energy, Utilities, &
Communications
Support None We decided to
support this bill
as
electrification
will be a main
strategy to
decarbonizing
the industrial
sector
AB 2513 (Pellerin)
Gas Stoves and
Ranges: Warning
Label
This bill would prohibit a person from selling,
attempting to sell, or offering to sell to a
consumer in this state a gas stove, as defined,
that is manufactured on or after January 1,
2025, unless the gas stove bears a label that sets
Awaiting vote on
the Senate Floor
Passed Senate
Committee on
Support None
401
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
forth a specified statement relating to air
pollutants that can be released by gas stoves
and that is attached to the gas stove in a
conspicuous location.
Environmental
Quality
AB 2619 (Connolly)
Net Energy
Metering
This bill would require the CPUC to develop a
new standard contract or tariff providing NEM
for eligible customer-generators of IOUs.
Dead.
Never heard in
Assembly
Committee on
Utilities & Energy
None None
AB 2666 (Boerner)
Public Utilities: Rate
of Return
This bill would require the commission, if it
determines that an electrical corporation or a
gas corporation has received revenues from its
ratepayers that are in excess of its approved rate
of return for a prior year, to require the rate of
return be adjusted in a subsequent general rate
case.
Referred to Senate
Committee on
Energy, Utilities &
Communications
Support
Pending
None This bill is
opposed by the
California State
Association of
Electrical
Workers,
California State
Pipe Trades
Council, and
Coalition of
California Utility
Employees
AB 2779
(Petrie-Norris)
CAISO Transmission
Planning
Existing law establishes the Independent System
operator as a nonprofit, public benefit
corporation to manage the transmission grid
and related energy markets, as provided. This
bill would require the Independent System
Pending in Senate
Appropriations
Committee
None Support
402
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
Operator, upon approval of each transmission
plan, to report to the Public Utilities Commission
and to the relevant policy committees of each
house of the Legislature any new use of any grid
enhancing technology that is deemed
reasonable by the Independent System Operator
in that plan and the cost or efficiency savings of
the deployment of that grid enhancing
technology.
Passed Senate
Committee on
Energy, Utilities &
Communications
AB 2815
(Petrie-Norris)
EV Charging Repair
Grants
Would require the Energy Commission to
establish a program to provide grants for repairs
to EV charging infrastructure that has been in
operation for at least 5 years and that is in a
publicly available parking space. The bill would
authorize grant funding to be used for the cost
to repair or replace an EV charging station. The
bill would require the commission to allocate at
least 50% of grant funding to low-income
communities and disadvantaged communities.
Scheduled for June
24, 2024, hearing in
Senate Committee
Energy, Utilities, &
Communications
Passed Senate
Committee on
Transportation
Support None The funding for
this bill would
come from the
Clean
Transportation
Program which
is funded by
registration fees
and smog
checks.
AB 2847 (Addis)
IOU Revenue
Requirements for
Proposed Capital
Expenditures
This bill would require an IOU’s application
requesting authorization for or recovery of
capital expenditures to include the IOU’s best
estimate of the application’s impact on annual
revenue requirement for each year that the
capital expenditures are expected to remain in
the application’s rate base and the net present
value of those impacts.
Referred to Senate
Committee on
Energy, Utilities &
Communications
Support None The bill
language
specifically
references
undergrounding
403
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
AB 2891 (Friedman)
Electrical Demand
Forecasts
This bill would require the Energy Commission,
on or before July 1, 2026, and in consultation
with the PUC, CAISO, load-serving entities, and
resource aggregators, to adopt a set of upfront
technical requirements and load automation
standards to provide the option for a
load-serving entity to reduce or modify its
electrical demand forecast upon aggregated
system operation.
Held on Assembly
Appropriations
Suspense File and is
now dead
None None
AB 3256 (Irwin)
Memorandum and
Balancing Accounts:
Reports to the
Legislature
This bill would require the commission to
include, as part of its annual update to the
Legislature on the status of its review of
balancing accounts, the amount of funds in, and
the expenditures from, the memorandum
accounts and balancing accounts of each public
utility as they relate to wildfire management
and emergencies. The bill would require the
commission to annually determine if each
memorandum account and each balancing
account has achieved its intended purpose in
the previous year.
Referred to Senate
Committee on
Energy, Utilities &
Communications
Support
Pending
None
SB 382 (Becker)
Property
Disclosures:
Electrical Systems
This bill would, on or after January 1, 2026,
require a seller of a single-family residential
property to deliver a specified disclosure
statement to the prospective buyer regarding
the electrical systems of the property.
Pending on the
Assembly Floor.
This bill is on the
Consent File
None None
404
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
SB 867 (Allen)
Climate Bond
Proposes a $15.5 billion climate resilience bond
to fund programs responding to drought/flood,
wildfire, sea-level rise, etc. The bond proposes
$2 billion for energy resilience programs such as
zero-emission vehicle infrastructure and clean
energy transmission projects.
2-year bill currently
pending in
Assembly
Committee on
Natural Resources
None None Bond measures
must be signed
by the
Governor by
June 27 for
placement on
the November 5
ballot.
SB 938 (Min)
Utility
Accountability Act
Would prohibit, except as provided, an electrical
or gas corporation from recording various
expenses associated with political influence
activities or with advertising to accounts that
contain expenses that the electrical or gas
corporation recovers from ratepayers. The bill
would require an electrical or gas corporation to
provide the Public Utilities Commission with all
information deemed necessary to monitor
compliance with that prohibition. The bill also
would require an electrical or gas corporation,
for each business unit of the corporation that
performs work associated with political
influence activities or advertising, to annually
file with the commission a report containing
specified information. The bill would require the
commission to make the report publicly
available.
Dead.
Failed to pass the
Senate Committee
on Energy, Utilities
and
Communications
None None This bill is
co-sponsored
by TURN and
Earthjustice.
405
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
SB 993 (Becker)
Clean energy
development
incentive rate tariff
This bill requires the PUC to develop a special
tariff (set of electricity rates) to support the
development of green hydrogen and the
electrification of industrial heat by providing
attractive rates at times when we have
abundant clean energy (and high rates at other
times). This tariff will offer these new
customers a great deal: pricing to help them be
cost-competitive, but only if they operate in a
way that relies on clean energy, avoids new grid
infrastructure costs, and helps us maintain a
reliable grid.
Held on Senate
Appropriations
Suspense File and is
now dead
None None
SB 1018 (Becker) The cheapest and cleanest way to provide renewable energy to power hydrogen
electrolyzers or to displace fossil fuels in
industry would be directly connecting those
renewables to those new clean energy loads.
Unfortunately, this is prevented today by the
""over-the-fence rule,"" which allows ""behind
the meter"" usage of electricity only in very
limited cases (such as when generated on the
same property as rooftop solar). That doesn't
work when you need acres of solar panels to
provide enough power for a big factory. This bill
will create a targeted new exception to the
over-the-fence rule to enable off-grid use of
Scheduled for July
1, 2024, hearing in
Assembly
Committee on
Utilities & Energy
None None
406
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
renewables for these new, climate-beneficial
purposes.
SB 1095 (Becker)
Cozy Homes
Cleanup Act
This bill updates code ambiguities to ensure
individuals can switch from gas to electric
appliances, allowing Californians to opt for
cozier and healthier zero-emission homes. To do
so, the bill: (1) Prevent HOAs from implementing
provisions which prevent the switch from gas to
electric appliances, (2) Clarifies the authority of
individuals to replace gas with electric
appliances in mobile and manufactured homes,
and (3) Provides the Department of Housing and
Community Development authority to update
its regulations should further legal uncertainty
inhibit appliance replacement.
Held on Senate
Appropriations
Suspense File and is
now dead
Support Support
SB 1130 (Bradford)
IOU Reports on
Family Electric Rate
Assistance
Would require the PUC to review each IOU’s
report to ensure it has sufficiently enrolled
eligible households in the FERA program
commensurate with the proportion of
households the commission determines to be
eligible within the electrical corporation’s
service territory. If the commission, in its review
of a report, determines an IOU has not
sufficiently enrolled eligible households in the
FERA program, the bill would require the
commission to require the IOU to develop a
strategy and plan to sufficiently enroll eligible
Scheduled for June
19, 2024, hearing in
Assembly
Committee on
Utilities & Energy
Support Support
407
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
households within 3 years of the adoption of the
strategy and plan.
SB 1165 (Padilla) Existing law authorizes a person proposing an eligible facility, including an electrical
transmission line carrying electricity from
certain other facilities that are located in the
state to a point of junction with any
interconnected electrical transmission system,
to file an application, on or before June 30,
2029, with the State Energy Resources
Conservation and Development Commission
(Energy Commission) to certify a site and related
facility for purposes of specified environmental
review procedures. This bill would expand the
facilities eligible to be certified pursuant to the
provisions described above by the Energy
Commission and deemed environmental
leadership development projects to include
electrical transmission projects. The bill would
require an applicant applying for certification of
an electrical transmission project to take certain
actions, including, among other actions, to avoid
or minimize significant environmental impacts in
any disadvantaged community. This bill contains
other related provisions and other existing laws.
Held on Senate
Appropriations
Suspense File and is
now dead
None Support
SB 1305 (Stern) This bill would require each Investor-Owned Utility (IOU) to procure from virtual power
Dead. None None
408
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
Virtual Power Plant
Procurement
Mandate
plants, defined as actively coordinated
aggregations of behind-the-meter distributed
energy resources that can perform certain
functions, sufficient capacity to meet specified
minimum capacity requirements by certain
dates. The bill would require capacity procured
from a virtual power plant by an IOU pursuant
to these provisions to be used to meet the
resource adequacy requirements established for
the load-serving entity.
Senator Stern never
presented the bill in
Senate Committee
on Energy, Utilities
and
Communications
SB 1374 (Becker)
Restoring
Self-consumption
Benefits for On-Site
Generation
When the PUC changed net energy metering for
behind-the-meter solar, it retained the ability for
solar customers to avoid purchasing energy from
the utility for solar power that was
self-consumed (during the same time in which it
was generated) while drastically lowering the
value of excess solar power that is exported to
the utility. For virtual net energy metering
(VNEM) and net energy metering aggregation
(NEMA) customers (where energy from a
carport solar system over a school parking lot
could be virtually netted against power usage by
separately metered school buildings), the PUC
eliminated any credit for self-consumption,
making it an even worse deal for these
customers. This bill would re-establish credit for
self-consumption for VNEM and NEMA,
Scheduled for June
19, 2024, hearing in
Assembly
Committee on
Utilities & Energy
None None
409
Status of 2024 Legislative Session Bills
As of June 17, 2024
With Peninsula Clean Energy and CalCCA Adopted Positions Bill Summary Status PCE Position CalCCA
Position
Comments
equivalent to what is provided for single family
homes.
410
DATE: June 17, 2024
MEETING DATE: June 27, 2024
VOTE REQUIRED: None
TO: Honorable Peninsula Clean Energy Authority Board of Directors FROM: Leslie Brown Director of Account Services
SUBJECT: Account Services Quarterly Update
Item No. 21
PENINSULA CLEAN ENERGY AUTHORITY
JPA Board Correspondence
BACKGROUND
The purpose of the Account Services team is to provide customer billing support through direct customer interaction, as well as oversee the various processes related to the management of PCE’s customer data. This includes relationships with our back-office data manager, Calpine Energy Solutions, and PG&E.
DISCUSSION
The following is a quarterly update of Account Services team activities taking place during the third quarter of FY24, please see topics below for additional detail.
Proposed PCE Rate Change to be Effective August 1, 2024 (Pending Board Approval) As a result of the 'rate freeze' approved by the Board earlier this year, most PCE customers have been receiving a 10-15% discount in their generation costs vs what PG&E would be charging since January 1, 2024. PG&E will be implementing an adjustment to their generation rates on July 1, 2024 as a previously approved surcharge for 2023 under-collection expires.
Staff is bringing forth a proposal this month recommending that PCE adjust rates to recalibrate to the new July 1 PG&E rates as well as move all PCE customers onto a single rate schedule.
More details about this proposal can be found in the full staff report for this item.
Net Energy Metering (NEM) & Solar Billing Plan Updates
PG&E began its transition to Solar Billing Plan on April 15th, 2024 and so far a handful of PCE customers have been moved over to the new program from their legacy NEM 1.0 billing plans.
Data transmission is so far occurring successfully between PG&E and Calpine for these customers, but staff will continue to monitor this process as it unfolds and more customers become eligible for the new program.
NEM Cash-outs for 2024 were executed successfully with the new updates approved by the Board in March. A majority of our cash-out customers are now receiving their annual payouts via an on-bill credit instead of a separate check mailed to their homes. PCE heard from only a few customers who were not happy with this new process and we are implementing a way for 411
customers who would still like to receive a separate check to be able to do so in future years.
See attached breakdown of NEM cash-outs for this year
Contact Center for In-House Services
After receiving approval from the Board of Directors at the April 25th meeting to move forward with the plan to transition to an in-house contact center this fall, Stephanie Elmore (PCE Contact Center Consultant) has been busy preparing training documentation as well as engaging with Calpine staff on further training for the InContact IVR platform. Stephanie is in the process of being converted to permanent PCE employee status to be effective beginning the July 16th, 2024 pay period.
Key Accounts Engagement
Strategic Accounts Manager, Justin Pine, has been working diligently to support Caltrain’s energy consultants to understand PCE’s rates and projected power mix in 2024 and beyond as we prepare for the South San Francisco depot to come online in September 2024. PCE staff are also working with Caltrain consultant team to help Caltrain maximize revenue opportunities from the California Air Resource Board administered Low Carbon Fuel Standard.
At the April 25th Board of Directors meeting a Low Carbon Fuel Standard (LCFS) Tariff for public transit was adopted and will be applied to Caltrain's accounts when service commences this Fall.
Justin has also to continued to engage with Direct Access customers who are interested in exploring service with PCE. At a recent Board of Trustees meeting for the San Mateo County Community College District (SMCCCD) Trustees voted to transition service to PCE when their current contract with energy provider, Constellation Energy, expires in July 2024. PCE is excited to welcome SMCCCD into service and our programs team has already begun to engage with District staff on various upcoming projects. Special acknowledgement to Marc Hershman, PCE Director of Government Affairs, for his engagement with District stakeholders to support this transition.
RFP for Data Manager Services
Account Service staff will soon be publishing an RFP for Data Manager services. These services are currently being provided by Calpine Energy Solutions, which has been PCE's Data Manager and Billing Operations partner since PCE launched service in 2016. The RFP release is to ensure PCE is evaluating all options for service providers and pricing for this important partnership and is not necessarily indicative of staff's intent to change providers.
ATTACHMENTS:
2024 NEM Cash Out.pptx
412
Peninsula Clean Energy
NEM Cash-out 2024
1 413
California Community Power
901 H St, Ste 120 PMB 157, Sacramento, CA 95814 | 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: 5/20/24 FROM: Alex Morris – General Manager
SUBJECT: Report on CC Power Regular Board of Directors Meeting – May 20, 2024 The CC Power Board of Directors held its regularly scheduled meeting on May 20, 2024, 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: Meetings and Agendas – ca community power Highlights of the meeting included the following:
• Matters subsequent to posting the Agenda. None.
• Public Comment. None.
• Consent Agenda - The Board approved the following items:
o Minutes of the Regular Board Meeting held on April 24, 2024. • Regular Agenda Items:
o General Manager Report – the Board heard updates on implementation of file-sharing improvements for CC Power member-access, a planned invoice for the Build-Transfer (BTA) Project Phase 2a project, a planned blog to further explain CC Power’s considerations of offshore wind, and CC Power policy operating policy progress and implementations.
o 2024-2025 Recommended Budget Discussion – The Board reviewed and discussed how the CC Power Strategic Plan (2022) as well as member interviews and surveys have informed a 2024-2025 work-plan and related Recommended Budget. Based on Board Discussion, additional changes to the proposed budget will be considered prior to a planned Board vote at the June 2024 Board Mtg. The Recommended Budget reflects anticipated growth in CC Power value-add for members and in core capabilities, as well as resourcing for the four contracts (Long-Duration Storage and Firm Clean Resources) and the BTA Phase 2a project (ongoing). Lastly, the recommended budget includes estimated or expected Phase 2 and Phase 3 work, a.k.a. project work, to better inform members of likely full-year costs. This estimation approach differs from past approaches where estimated new project work was not reflected in the budget, and mid-year ‘cash-calls’ were used outside of budget approval processes to fund new projects. 414
2 • Closed Session Items:
o The Board heard updates on CC Power’s contracts, with specific updates and status considerations on one firm-clean resources contract and one long-duration storage contract. No Board action occurred.
415
COMMONLY USED ACRONYMS AND KEY TERMS
AB xx – Assembly Bill xx
ALJ – Administrative Law Judge
AMP - Arrears Management Plans
Apple Valley Choice Energy
AQM – Air Quality Management
Ava – Formally East Bay Community Energy
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)
CCCFA – California Community Choice Financing Authority CC Power – California Community Power
CEC – California Energy Commission
Clean Energy Alliance – CCA in
CPA – Clean Power Alliance
Clean Power SF
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
Customer Centricity - culture, framework and business strategy based on providing a positive customer experience and building long-term relationships DA – Direct Access
DAC-GT - Disadvantaged Communities Green Tariff
DER – Distributed Energy Resources
Desert Community Energy
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 now known as Ava Community Energy ECOplus – PCE’s default electricity product, 50% renewable and 50% carbon-free (in 2021) ECO100 – PCE’s 100% renewable energy product 416
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
EPIC – Energy for Palmdale’s independent Choice
ESP – Electric Service Provider
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
Heavy Duty Vehicle – large vehicles such as busses and long-haul trucks HPWH – Heat Pump Water Heater
HP HVAC – Heat Pump Heating, Ventilation, and Air Conditioning HR xx – House of Representatives Bill xx
IDER – Integrated Distributed Energy Resources
IGFC – Income Graduated Fixed Charge
IOU – Investor-Owned Utility (e.g. PG&E, SCE, SDG&E)
IIJA – Infrastructure Investment and Jobs Act
IRA – Inflation Reduction Act
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)
Lancaster Energy
Light Duty Vehicle - passenger vehicles such as cars and small pickup trucks 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
Mid Duty Vehicle – vehicles such as passenger vans
MW – Megawatt (Power) = 1000 kW
MWh – Megawatt-hour (Energy) = 1000 kWh 417
MTR – Mid-Term Reliability
MUD – Multi-unit Dwelling
NBCs – non-bypassable charges
NBT – Net Billing Tariff
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
OCPA – Orange County Power Authority
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) PCEA – Peninsula Clean Energy Authority
PCIA – Power Charge Indifference Adjustment
PCL – Power Content Label
Pioneer Community Energy
PLA – Project Labor Agreement
POU – Publicly Owned Utility
Pomona Choice Energy
PPA – Power Purchase Agreement
PPSA – Project Participation Share Agreement (CC Power) PRIME – Pico Rivera innovative Municipal Energy
PSPS – Public Safety Power Shutoff
PV – Photovoltaics(solar panels)
Rancho Mirage Energy Authority
RA – Resource Adequacy
RE – Renewable Energy
REC – Renewable Energy Credit/Certificate
Redwood Coast Energy Authority
RICAPS - Regionally Integrated Climate Action Planning Suite RPS – California Renewable Portfolio Standard
S xx – US Senate Bill xx
SB xx – CA Senate Bill xx
Santa Barbara Clean Energy
SBP – Solar Billing Plan
SCP – Sonoma Clean Power
SDCP – San Diego Community Power
SJCE – San Jose Clean Energy
San Jacinto Power
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
TOB – Tariff on Bill 418
TOU Rates – Time of Use Rates
Valley Clean Energy
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 WWGPI - West-Wide Governance Pathways Initiative
419