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EEI MASTER POWER PURCHASE AND SALE AGREEMENT
SHORT TERM SALES CONFIRMATION
BETWEEN
PACIFIC GAS AND ELECTRIC COMPANY
AND
[Buyer to insert its full name here in all caps]
This confirmation (“Confirmation”) confirms the transaction (“Transaction”) between Pacific Gas and Electric Company, a California corporation, but limited for all purposes hereunder to its electric procurement and electric fuels functions (“Seller” or “Party B”), and [Buyer to insert its full name, place of formation and type of entity] (“Buyer” or “Party A”), each individually a “Party” and together the “Parties”, effective as of the Execution Date, for the sale and purchase of the Product defined herein.
Except as otherwise expressly stated herein, this Confirmation is subject to, and incorporates by reference with the same force and effect as if set forth herein, all of the terms and provisions of the Parties’ EEI Master Power Purchase and Sale Agreement, together with the Cover Sheet [and the amendments and annexes thereto] [PG&E to identify any amendments or annexes here], dated as of [MM/DD/YYYY] [PG&E to insert date in MM/DD/YYYY format] (collectively, [“Master Agreement”] [“EEI Agreement” if no Collateral Annex]) [, and the corresponding Collateral Annex and Paragraph 10 to the Collateral Annex thereto]. [Such Collateral Annex and Paragraph 10 to the Collateral Annex shall be referred to collectively herein as the “Collateral Annex”]. [The Master Agreement and the Collateral Annex shall be referred to collectively herein as the “EEI Agreement”.] The EEI Agreement and this Confirmation shall be referred to collectively herein as the “Agreement.”
Capitalized terms used but not defined in this Confirmation shall have the meanings ascribed to them in the EEI Agreement, the RPS (defined herein), or the Tariff (defined herein). If there is a conflict between the terms in this Confirmation and those in the EEI Agreement, this Confirmation shall control. [PG&E to delete references to the Collateral Annex above if there is no existing Collateral Annex between the Parties]
[Standard contract terms and conditions shown in shaded text are those that “may not be modified” per CPUC Decisions (“D.”) 07-11-025; D.10-03-021, as modified by D.11-01-025; and D.13-11-024.]
Seller: Pacific Gas and Electric Company, limited for all purposes hereunder to its electric procurement and electric fuels functions
Buyer: [Buyer to insert its name here]
Contact
Information:
Name: Pacific Gas and Electric
Company, limited for all purposes
hereunder to its electric procurement and
electric fuels functions
(“Seller” or “Party B”)
Name: [Buyer to insert its contact name here]
(“Buyer” or “Party A”)
All Notices:
P.O. Box 770000, Mail Code N12E
San Francisco, CA 94177
Attn: Ted Yura
Senior Manager, Contract Management
All Notices:
[Buyer to insert its address for Notices here]
Attn: [Buyer to insert here]
Phone: [Buyer to insert here]
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Phone: (415) 828-3350
Email: [email protected]
Email: [Buyer to insert here]
Invoices:
Attn: Kelly Wong
Senior Manager, Electric Settlements
Phone: (510) 220-6064
Email: [email protected]
Invoices:
Attn: [Buyer to insert here]
Phone: [Buyer to insert here]
Email: [Buyer to insert here]
Payments:
Attn: Kelly Wong
Senior Manager, Electric Settlements
Phone: (510) 220-6064
Email: [email protected]
Payments:
Attn: [Buyer to insert here]
Phone: [Buyer to insert here]
Email: [Buyer to insert here]
Wire Transfer:
BNK:
ABA:
ACCT:
Duns:
Federal Tax ID Number:
Wire Transfer:
BNK:
ABA:
ACCT:
Duns:
Federal Tax ID Number:
Credit and Collections:
Credit and Collections:
Attn: Manager, Credit Risk Management
Phone: (415) 972-5188
Email: [email protected]
Credit and Collections:
Credit and Collections:
Attn: [Buyer to insert here]
Phone: [Buyer to insert here]
Email: [Buyer to insert here]
Collateral:
Attn: [Buyer to insert here]
Phone: [Buyer to insert here]
Email: [Buyer to insert here]
Defaults:
With additional Notices of an Event of
Default or Potential Event of Default to:
Pacific Gas and Electric Company
77 Beale Street, Mail Code B30A
San Francisco, CA 94105
Attn: Legal Department
Email: [PG&E to insert here]
Defaults:
With additional Notices of an Event of Default
or Potential Event of Default to:
Address: [Buyer to insert here]
Attn: [Buyer to insert here]
Email: [Buyer to insert here]
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Contract Manager:
Attn: Ted Yura
Senior Manager, Contract Management
Phone: (415) 828-3350
Email: [email protected]
ARTICLE 1
COMMERCIAL TERMS
Seller: PACIFIC GAS AND ELECTRIC
COMPANY, limited for all purposes
hereunder to its electric procurement
and electric fuels functions
Buyer: [Buyer to insert its full name here in all caps] Product: The Product shall consist of Electric Energy and associated Green Attributes from the Project, as further described and subject to the provisions herein.
Project: All Product sold hereunder shall be generated by the facility (“Project”) listed in Appendix A to this Confirmation.
Buyer shall not be entitled to, and shall not receive, any amount of Green Attributes produced by the Project that is in excess of the Total Quantity.
Buyer shall not be entitled to, and shall not receive, any amount of Electric Energy produced by the Project that is in excess of the Energy Quantity.
Quantity: (a) For Green Attributes: “Total Quantity” shall be equal to the volume of Green Attributes associated with the Electric Energy generated by the Project throughout the Energy Delivery Period, and shall be conveyed during the Green Attributes Delivery Period to Buyer as provided herein.
(b) For Electric Energy: “Energy Quantity” shall be equal to the volume of Delivered Energy during the Energy Delivery Period.
Energy Price: The Energy Price shall mean the Index Price for each megawatt-hour (MWh) of Delivered Energy delivered to Buyer under this Agreement.
Green
Attributes Price:
The Green Attributes Price shall mean $[_____] for each MWh of Green Attributes conveyed to Buyer under this Agreement
Term of
Transaction:
Except as otherwise provided herein, the term of the Transaction shall commence upon the Execution Date and shall continue until the end of the Delivery Term and the satisfaction of all other obligations of the Parties under this Agreement (“Term”).
This Confirmation, and the Transaction and Term hereunder, shall terminate early in the event of (1) a failure to satisfy the Condition Precedent defined below (2) an early termination of the PPA, or (3) as otherwise provided in the Agreement.
Termination because of (1) a failure to satisfy the Condition Precedent or (2) an early termination of the PPA shall also terminate all of the Parties’ obligations under the Confirmation as of the Transaction Termination Date as provided in Section 4.2, except for PG&E DRAFT JULY 2022
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the Parties’ confidentiality obligations under Article 9 herein and the Parties’ obligations regarding Green Attributes associated with Electric Energy generated by the Project through the termination date of the PPA.
Credit
Requirements:
(a) This Confirmation’s credit requirements for the Electric Energy portion of the Product shall be governed by the EEI Agreement.
(b) This Confirmation’s credit requirements for the Green Attributes portion of the Product shall apply as specified below:
(i) If the EEI Agreement has a Collateral Annex, then the Exposure Amount for the Green Attributes portion of the Product shall be equal to the product of the following: (I) the Green Attributes Price multiplied by (II) the greater of (a) fifty thousand (50,000) less the product, rounded to the nearest whole number, of (i) the volume of delivered Green Attributes multiplied by (ii) fifteen percent (15%) and (b) ten thousand (10,000). (ii) In the event the EEI Agreement does not have a Collateral Annex and Section 8.2(c), entitled “Collateral Threshold” with respect to “Party B Credit Protection”, of the EEI Agreement applies, then the Termination Payment for the Green Attributes portion of the Product to be delivered to Party B as described in Section 8.2(c) of the EEI Agreement shall be equal to the product of the following: (I) the Green Attributes Price multiplied by (II) the greater of (a) fifty thousand (50,000) less the product, rounded to the nearest whole number, of (i) the volume of delivered Green Attributes multiplied by (ii) fifteen percent (15%) and (b) ten thousand (10,000).
(c) Section 8.1 of the EEI Agreement, entitled “Party A Credit Protection”, and all corresponding provisions of (i) the Cover Sheet to Section 8.1 of the EEI Agreement and (ii) the Collateral Annex with respect to such Section 8.1 and the applicable provisions thereto of Paragraph 10 to the Collateral Annex do not apply to this Confirmation.
Delivery Term: The “Delivery Term” shall consist of both the Energy Delivery Period and the Green Attributes Delivery Period.
Energy Delivery
Period:
Subject to the satisfaction, or waiver in writing by both Parties, of the Condition Precedent, the “Energy Delivery Period” shall (1) commence on date upon which CPUC Approval occurs; and (2) end on the earlier of the conclusion of hour ending 2400 (PPT) on 10/31/2027 or the termination of the PPA.
Green
Attributes
Delivery Period:
Subject to the satisfaction, or waiver in writing by both Parties, of the Condition Precedent, the “Green Attributes Delivery Period” shall commence on the first day that Seller conveys Green Attributes to Buyer and shall end on the earlier of (i) that date upon which the amount of Green Attributes conveyed to Buyer satisfies the Total Quantity; or (ii) in the event of an early termination of the PPA, that date upon which all Green Attributes associated with the Energy Delivery Period have been conveyed to Buyer.
Seller shall convey Green Attributes to Buyer in the form of WREGIS Certificates. Seller shall transfer WREGIS Certificates into Buyer’s WREGIS account in an amount required to satisfy the Total Quantity.
Delivery Point: The “Delivery Point” shall be that point at which Buyer receives Electric Energy from Seller as specified in Appendix A. Buyer shall take possession of Electric Energy from the Project at the Delivery Point.
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Scheduling
Obligations:
Seller, or a qualified third party designated by Seller, shall act as Scheduling Coordinator for the Project. Buyer hereby authorizes Seller, or its third party Scheduling Coordinator designee, to deliver the Electric Energy to the CAISO at the Delivery Point as an agent on Buyer’s behalf.
Conditions
Precedent:
Notwithstanding any other provision of this Confirmation to the contrary, all of the Parties’ obligations except for the Parties’ confidentiality obligations under Article 9 herein, are conditioned upon (a) Seller’s receipt, or the Parties’ written waiver, of CPUC Approval as defined below ; and (b) Seller’s receipt of the Performance Assurance from Buyer no later than five (5) Business Days following Seller’s Notice to Buyer of CPUC Approval (defined below) (collectively, “Condition Precedent”).
ARTICLE 2
DEFINITIONS
2.1 “Balancing Authority” has the meaning set forth in the CAISO Tariff.
2.2 “Balancing Authority Area” has the meaning set forth in the CAISO Tariff.
2.3 “Broker or Index Quotes” means quotations solicited or obtained in good faith from (a) regularly published and widely-distributed daily forward price assessments from a broker that is not an Affiliate of either Party and who is actively participating in markets for the relevant Products; or (b) end-of-day prices for the relevant Products published by exchanges which transact in the relevant markets.
2.4 “Business Day” means all calendar days other than those days on which the Federal Reserve member banks in New York City are authorized or required by law to be closed, and shall be between the hours of 8:00 a.m. and 5:00 p.m. Pacific Prevailing Time for the relevant Party’s principal place of business where the relevant Party, in each instance unless otherwise specified, shall be the Party from whom the Notice, payment or delivery is being sent and by whom the Notice or payment or delivery is to be received.
2.5 “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
2.6 “CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
2.7 “California Renewables Portfolio Standard” or “RPS” means the renewable energy program and policies established by California State Senate Bills 1078, X1 - 2 and 350, codified in California Public Utilities Code Sections 399.11 through 399.32 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time.
2.8 “CARB” means the California Air Resources Board or its successor agency.
2.9 “CEC” means the California Energy Commission or its successor agency.
2.10 “Contract Price” means the Energy Price plus the Green Attributes Price.
2.11 “CPUC” means the California Public Utilities Commission or its successor entity.
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2.12 “CPUC Approval” means a final and non-appealable order of the CPUC, without conditions or modifications unacceptable to the Parties, or either of them, which contains the following terms:
(a) approves this Agreement in its entirety, including payments to be made by the Buyer, subject to CPUC review of the Buyer's administration of the Agreement; and (b) finds that any procurement pursuant to this Agreement is procurement from an eligible renewable energy resource for purposes of determining Buyer's compliance with any obligation that it may have to procure eligible renewable energy resources pursuant to the California Renewables Portfolio Standard (Public Utilities Code Section 399.11 et seq.), Decision 03-06-071, or other applicable law.
CPUC Approval will be deemed to have occurred on the date that a CPUC decision containing such findings becomes final and non-appealable.
For the purpose of this Section 2.12, a CPUC Energy Division disposition which contains such findings, or deems approved an advice letter requesting such findings, shall be deemed to satisfy the CPUC decision requirement set forth above.
Also, for the purpose of this Section 2.12 only, the references therein to “Buyer” shall mean “Seller”.
2.13 “Credit Rating” means, with respect to any entity, (a) the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements); or (b) if such entity does not have a rating for its unsecured, senior long-term debt obligations, then the rating assigned to such entity as an issuer rating by S&P and/or Moody’s. If the entity is rated by both S&P and Moody’s and such ratings are not equivalent, the lower of the two ratings shall determine the Credit Rating. If the entity is rated by either S&P or Moody’s, but not both, then the available rating shall determine the Credit Rating.
2.14 “Delivered Energy” means the Electric Energy from the Project that is delivered by Seller to Buyer at the Delivery Point.
2.15 “Electric Energy” means three-phase, 60-cycle alternating current electric energy measured in MWh and net of auxiliary loads and station electrical uses (unless otherwise specified).
2.16 “Eligible Renewable Energy Resource” or “ERR” has the meaning set forth in California Public Utilities Code Section 399.12 and California Public Resources Code Section 25741, as either code provision is amended or supplemented from time to time.
2.17 “Execution Date” means the latest signature date found on the signature page of this Agreement.
2.18 “Force Majeure” means an event or circumstance which prevents one Party from performing its obligations under this Agreement, which event or circumstance was not anticipated as of the Execution Date, which is not within the reasonable control of, or the result of the negligence of, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided. Force Majeure shall not be based on (a) the loss of Buyer’s markets; (b) Buyer’s inability economically to use or resell the Product purchased hereunder; (c) the loss or failure of Seller’s supply unless caused by a force majeure event at the Project; or (d) Seller’s ability to sell the PG&E DRAFT JULY 2022
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Product at a price greater than the Contract Price. Neither Party may raise a claim of Force Majeure based in whole or in part on curtailment by a Transmission Provider unless (i) such Party has contracted for firm transmission with a Transmission Provider for the Product to be delivered to or received at the Delivery Point; and (ii) such curtailment is due to “force majeure” or “uncontrollable force” or a similar term as defined under the Transmission Provider’s tariff; provided, however, that existence of the two foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate with such factors establish that a Force Majeure as defined in the first sentence hereof has occurred.
2.19 “Governmental Authority” means any federal, state, local or municipal government, governmental department, commission, board, bureau, agency, or instrumentality, or any judicial, regulatory or administrative body, having jurisdiction as to the matter in question.
2.20 “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Project, and its avoided emission of pollutants. Green Attributes include but are not limited to Renewable Energy Credits, as well as:
(a) any avoided emission of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (b) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHG) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by Law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere;
1 (c) the reporting rights to these avoided emissions,
such as Green Tag Reporting Rights. Green Tag Reporting Rights are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state Law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s discretion, and include without limitation those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local Law, regulation or bill, and international or foreign emissions trading program. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Electric Energy. Green Attributes do not include (i) any Electric Energy, capacity, reliability or other power attributes from the Project; (ii) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the Project that are applicable to a state or federal income taxation obligation; (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits; or (iv) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits. If the Project is a biomass or biogas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Project.
2.21 “Index Price” means the day-ahead Locational Marginal Price (as defined in the CAISO Tariff) associated with the Delivered Energy to the Delivery Point for each applicable hour as published by the CAISO on the CAISO website or any successor thereto, unless a substitute publication and/or index is mutually agreed to by the Parties.
1 Avoided emissions may or may not have any value for GHG compliance purposes. Although avoided emissions are included in the list of Green Attributes, this inclusion does not create any right to use those avoided emissions to comply with any GHG regulatory program.
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2.22 “Law” means any statute, law, treaty, rule, regulation, CEC guidance document, ordinance, code, permit, enactment, injunction, order, writ, decision, authorization, judgment, decree or other legal or regulatory determination or restriction by a court or Governmental Authority of competent jurisdiction, including any of the foregoing that are enacted, amended, or issued after the Execution Date, and which becomes effective after the Execution Date; or any binding interpretation of the foregoing. For the purposes of the definition of “CPUC Approval” in Section 2.12 and Sections 6.1(a), 6.1(b) and 8.2(b) in this Confirmation, the term “law” shall have the meaning set forth in this definition.
2.23 “Letter of Credit” means an irrevocable, non-transferable, standby letter of credit the form of which shall be substantially as contained in Appendix B to this Agreement; provided that, if the issuer is a U.S. branch of a foreign commercial bank, the intended beneficiary may require changes to such form; and the issuer must be a Qualified Institution on the date of delivery of the Letter of Credit to the Secured Party. In case of a conflict of this definition with any other definition of “Letter of Credit” contained in the EEI Agreement or any exhibit or annex thereto, this definition shall supersede any such other definition for purposes of the Transaction to which this Agreement applies.
2.24 “Market Quotation Average Price” means the arithmetic mean of the quotations solicited in good faith from not less than three (3) Reference Market-Makers (as hereinafter defined); provided, however, that the Party obtaining the quotes shall use reasonable efforts to obtain good faith quotations from at least five (5) Reference Market-Makers and, if at least five (5) such quotations are obtained, the Market Quotation Average Price shall be determined by disregarding the highest and lowest quotations and taking the arithmetic mean of the remaining quotations. The quotations shall be based on the offers to sell or bids to buy, as applicable, obtained for transactions substantially similar to each Terminated Transaction. The quote must be obtained assuming that the Party obtaining the quote will provide sufficient credit support for the proposed transaction. Each quotation shall be obtained, to the extent reasonably practicable, as of the same day and time (without regard to different time zones) on or as soon as reasonably practicable after the relevant Early Termination Date. The day and time as of which those quotations are to be obtained will be selected in good faith by the Party obtaining the quotations and in accordance with the Notice provided pursuant to Section 5.2 of the EEI Agreement, which designates the Early Termination Date. If fewer than three quotations are obtained, it will be deemed that the Market Quotations Average Price in respect of such Terminated Transaction or group of Terminated Transactions cannot be determined. For purposes of this Section 2.24, “Reference Market-Maker” means a leading dealer in the relevant market selected by a Party determining its exposure in good faith from among dealers of the highest credit standing which satisfy all the criteria that such Party applies generally at the time in deciding whether to offer or to make an extension of credit.
2.25 “Notice” means written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail). The contacts table of this Confirmation contains the names and addresses to be used for Notices.
2.26 “Power Purchase Agreement” or “PPA” means that Power Purchase Agreement between Seller and Burney Forest Products, a Joint Venture, executed on 11/01/2016, as amended from time to time.
2.27 “Qualified Institution” means either a U.S. commercial bank, or a U.S. branch of a foreign bank acceptable to the Beneficiary Party in its sole discretion; and in each case such bank must (i) have a Credit Rating of at least: (a) “A-, with a stable designation” from S&P and “A3, with a stable designation” from Moody’s, if such bank is rated by both S&P and Moody’s; or (b) “A-, with a stable designation” from S&P or “A3, with a stable designation” from Moody’s, if such bank is rated by either S&P or Moody’s, but not both, even if such bank was rated by both S&P and Moody’s as of the date of PG&E DRAFT JULY 2022
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issuance of the Letter of Credit but ceases to be rated by either, but not both of those ratings agencies, and (ii) have assets of at least $10 billion US Dollars.
2.28 “Real-Time Market” has the meaning set forth in the Tariff and shall include any market that CAISO may establish prior to or during the Term that clears at an interval between the Day-Ahead Market and the Real-Time Market.
2.29 “Renewable Energy Credit” or “REC” has the meaning set forth in California Public Utilities Code Section 399.12(h) and CPUC Decision 08-08-028, as may be amended from time to time or as further defined or supplemented by Law.
2.30 “Replacement Price” means the price at which Buyer, acting in a commercially reasonable manner, purchases for delivery at the Delivery Point a replacement for any Product specified in a Transaction but not delivered by Seller, plus (a) costs reasonably incurred by Buyer in purchasing such substitute Product; and (b) additional transmission charges, if any, reasonably incurred by Buyer to the Delivery Point, or absent a purchase, the market price at the Delivery Point for such Product not delivered as determined by Buyer in a commercially reasonable manner; provided, however, in no event shall such price include any penalties, ratcheted demand or similar charges, nor shall Buyer be required to utilize or change its utilization of its owned or controlled assets or market positions to minimize Seller’s liability. For the purposes of this definition, Buyer shall be considered to have purchased replacement Product to the extent Buyer shall have entered into one or more arrangements in a commercially reasonable manner whereby Buyer repurchases its obligation to sell and deliver the Product to another party at the Delivery Point.
2.31 “Sales Price” means the price at which Seller, acting in a commercially reasonable manner, resells any Product not received by Buyer, deducting from such proceeds any (a) costs reasonably incurred by Seller in reselling such Product; and (b) additional transmission charges, if any, reasonably incurred by Seller in delivering such Product to the third party purchasers, or absent a sale, the market price at the Delivery Point for such Product not received as determined by Seller in a commercially reasonable manner; provided, further, that in no event shall such price include any penalties, ratcheted demand or similar charges, nor shall Seller be required to utilize or change its utilization of its owned or controlled assets, including contractual assets, or market positions to minimize Buyer’s liability. For purposes of this definition, Seller shall be considered to have resold such Product to the extent Seller shall have entered into one or more arrangements in a commercially reasonable manner whereby Seller repurchases its obligation to purchase and receive the Product from another party at the Delivery Point.
2.32 “Tariff” means the CAISO Fifth Replacement FERC Electric Tariff and protocol provisions, including any CAISO-published procedures or business practice manuals, as they may be amended, supplemented or replaced (in whole or in part) from time to time.
2.33 “Transactions” as used in the EEI Agreement shall mean the “Transaction” as defined in the preamble above.
2.34 “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
2.35 “WREGIS Certificate” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
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2.36 “WREGIS Operating Rules” means the operating rules and requirements adopted by WREGIS.
ARTICLE 3
CONVEYANCE OF ELECTRIC ENERGY AND GREEN ATTRIBUTES
3.1 Seller’s Delivery of Electric Energy.
Subject to the terms and conditions of this Agreement, beginning on the first day of the Energy Delivery Period and continuing until the last day of the Energy Delivery Period, Seller shall deliver and sell, and Buyer shall purchase and receive, the Delivered Energy.
3.2 Seller’s Conveyance of Green Attributes.
(a) Green Attributes. Subject to the terms and conditions of this Agreement, beginning on the first day of the Green Attributes Delivery Period and continuing until the last day of the Green Attributes Delivery Period, Seller shall convey and sell, and Buyer shall purchase and receive, those Green Attributes associated with the Delivered Energy.
(i) Seller represents and warrants that Seller holds the rights to such Green Attributes from the Project and Seller agrees to convey such Green Attributes to Buyer as included in the delivery of the Product from the Project subject to the terms and conditions of this Agreement. (ii) As set forth above, Seller shall convey only that amount of Green Attributes required to meet the Total Quantity and shall do so only during the Green Attributes Delivery Period. (b) The Green Attributes in the amount of the Total Quantity shall be deemed to be conveyed to and received by Buyer under this Confirmation as set forth herein. During the Green Attributes Delivery Period, Seller shall convey to Buyer the Green Attributes associated with the Delivered Energy within: twenty-five (25) Business Days following the occurrence of both (I) the deposit into Seller’s WREGIS account of the WREGIS Certificates for the Green Attributes for the applicable Calculation Period; and (II) Buyer’s payment of the Monthly Cash Settlement Amount in accordance with Article 5 herein. Seller shall transfer such WREGIS Certificates in an amount equivalent to the Total Quantity to Buyer’s WREGIS account such that all right, title and interest in and to the WREGIS Certificates shall transfer from Seller to Buyer.
3.3 Obligations Limited to Product Delivered to Seller from Project.
Buyer acknowledges that Seller’s delivery and conveyance obligations for Product under this Agreement are limited solely to Product delivered from the Project to Seller pursuant to the PPA. In the event of any reduction in Product volume or the loss or failure of delivery of Product from the Project to Seller under the PPA: (a) Seller shall have no liability to Buyer, including, without limitation, for any damages determined pursuant to Article 4 of the EEI Agreement, nor shall Seller be required to indemnify Buyer for any related penalties, fines, or costs, and (b) such reduction, loss or failure of delivery shall not be an Event of Default under Article 5 of the EEI Agreement.
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ARTICLE 4
CPUC FILING AND APPROVAL
4.1 Filing for CPUC Approval.
Within sixty (60) days after the Execution Date, Seller shall file with the CPUC a request for CPUC Approval. Buyer shall use commercially reasonable efforts to support Seller in obtaining CPUC Approval. Seller shall have no obligation to seek rehearing or to appeal a CPUC decision which fails to approve this Confirmation or which contains findings required for CPUC Approval with conditions or modifications unacceptable to either Party. Notwithstanding anything to the contrary in the Confirmation, Seller shall not have any obligation or liability to Buyer or any third party for any action or inaction of the CPUC or other Governmental Authority affecting the approval or status of this Confirmation as a transaction eligible for portfolio content category 1, as defined in California Public Utilities Code Section 399.16(b)(1).
4.2 Termination Right and Transaction Termination Date.
In the event that: (a) the CPUC issues a final and non-appealable order not approving this Agreement in its entirety; (b) the CPUC issues a final and non-appealable order which contains conditions or modifications unacceptable to either Party; or (c) approval by the CPUC has not been received by Seller on or before sixty (60) days from the date on which Seller files for CPUC Approval, then either Party may, in its sole discretion, elect to terminate this Agreement upon Notice to the other Party provided in accordance with Article 10.7 of the EEI Agreement. Such Notice shall become effective one (1) Business Day after its provision. In the event of an early termination of the PPA, this Agreement will terminate effective as of the termination date of the PPA, and Seller will send Notice to Buyer thereof in accordance with Article 10.7 of the EEI Agreement. The effective date of either such Notice shall constitute the “Transaction Termination Date”. Any termination elected and noticed in accordance with this Section 4.2 shall terminate all of the Parties’ rights and obligations under the Agreement as of the Transaction Termination Date, except for the Parties’ confidentiality obligations under Article 9 herein and the Parties’ obligations regarding Green Attributes associated with Electric Energy generated by the Project through the termination date of the PPA.
4.3 Effect of Termination.
Any termination properly exercised by a Party under Section 4.2 shall be without liability or obligation, except for the Parties’ confidentiality obligations under Article 9 herein, and shall have no effect on the status of the EEI Agreement.
ARTICLE 5
COMPENSATION
5.1 Calculation Period.
The “Calculation Period” shall be each calendar month or portion thereof that Delivered Energy was conveyed to Buyer and for which associated Green Attributes will be transferred to Buyer under this Confirmation as described in Section 3.2(b).
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5.2 Monthly Cash Settlement Amount.
Buyer shall pay Seller the Monthly Cash Settlement Amount, in arrears, for each Calculation Period. The “Monthly Cash Settlement Amount” for a particular Calculation Period shall be equal to the sum of (a) plus (b) minus (c), where:
(a) equals the sum, over all hours of the Calculation Period, of the applicable Energy Price for each hour of Delivered Energy, multiplied by the quantity of Delivered Energy during that hour; and (b) equals the Green Attributes Price multiplied by the quantity of Green Attributes (in MWhs) that will be conveyed as described in Section 3.2(b) and that are associated with the Delivered Energy in the Calculation Period; and
(c) equals the sum, over all hours of the Calculation Period, of the applicable Energy Price for each hour of Delivered Energy, multiplied by the quantity of Delivered Energy during that hour.
5.3 Payment Date.
Notwithstanding anything to the contrary in Article Six of the EEI Agreement, payment of each Monthly Cash Settlement Amount by Buyer to Seller under this Confirmation shall be due and payable four (4) calendar months following the applicable Calculation Period and on or before the later of: (a) the twentieth (20th) day of the month in which the Buyer receives from Seller an invoice for the Calculation Period to which the Monthly Cash Settlement Amount pertains; and (b) ten (10) days following the date of Buyer’s receipt of an invoice issued by Seller for such applicable Calculation Period; provided that, if such payment due date is not a Business Day, then on the next Business Day. Payment to Seller shall be made by wire transfer pursuant to the Notices section of this Agreement.
5.4 Invoices.
The invoice shall include a statement detailing the amount of Delivered Energy, and associated Green Attributes, transferred to Buyer during the applicable Calculation Period. For purposes of this Confirmation, Buyer shall be deemed to have received an invoice upon Buyer’s receipt by e-mail of such invoice in PDF format from Seller. Invoices to Buyer shall be sent by email to the address provided in the Seller Contact Information table.
ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Seller’s Representations, Warranties, and Covenants. (a) Seller Representations and Warranties. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law.
(b) Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the PG&E DRAFT JULY 2022
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definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. (c) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract.
(i) For the avoidance of doubt, the term “contract” as used in the immediately preceding paragraph means this Confirmation.
(ii) For further clarity, the phrase “first delivery” as used in the immediately preceding paragraph means the first date of the Green Attributes Delivery Period. (d) In addition to the foregoing, Seller warrants, represents and covenants, as of the Execution Date and throughout the Delivery Term, that:
(i) Seller has the contractual rights to sell all right, title, and interest in the Product required to be delivered hereunder;
(ii) Seller has not sold the Product required to be delivered hereunder to any other person or entity;
(iii) Seller is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (as in effect as of the Execution Date of this Confirmation); (iv) at the time of delivery, all rights, title, and interest in the Product required to be delivered hereunder are free and clear of all liens, taxes, claims, security interests, or other encumbrances of any kind whatsoever;
(v) Seller shall not substitute or purchase any Product from any generating resource other than the Project or the market for delivery hereunder; and (vi) the facility(s) designated by Seller as the Project and all electrical output from the facility(s) designated as the Project are, or will be, by the first date of the Green Attributes Delivery Period, registered with WREGIS as RPS-eligible.
(e) As of the Execution Date and throughout the Energy Delivery Period, Seller represents, warrants and covenants that the Project meets the criteria in either (A) or (B):
(A) The Project either has a first point of interconnection with a California balancing authority, or a first point of interconnection with distribution facilities used to serve end users within a California balancing authority area; or (B) The Project has an agreement to dynamically transfer electricity to a California balancing authority.
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complies with the following conditions in (i) through (iv) below as of the Execution Date and throughout the Energy Delivery Period:
(i) The original upstream third party contract(s) meets the criteria of California Public Utilities Code Section 399.16(b)(1)(A);
(ii) This Agreement transfers only Electric Energy and Green Attributes that have not yet been generated prior to the commencement of the Energy Delivery Period;
(iii) The Delivered Energy transferred hereunder is transferred to Buyer in real time; and
(iv) If the Project has an agreement to dynamically transfer electricity to a California balancing authority, the transactions implemented under this Agreement are not contrary to any condition imposed by a balancing authority participating in the dynamic transfer arrangement.
6.2 To the extent a change in Law occurs after the Execution Date that causes the representations, warranties, and/or covenants in Section 6.1or this Section 6.2 that continue beyond the Execution Date to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in Law.
6.3 “Commercially reasonable efforts” as set forth in this Article 6 and as applicable to Seller only shall not require Seller to incur out-of-pocket expenses in excess of twenty-five thousand dollars ($25,000.00) in the aggregate during the Term.
ARTICLE 7
TERMINATION AND CALCULATION OF TERMINATION PAYMENT
In the event this Transaction becomes a Terminated Transaction pursuant to Section 5.2 of the EEI Agreement, then the Settlement Amount with respect to this Transaction shall not be calculated in accordance with the EEI Agreement, but instead shall be calculated as follows:
The Non-Defaulting Party shall determine its Gains and Losses by determining the Market Quotation Average Price for the Terminated Transaction. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts, to obtain the Market Quotation Average Price with respect to the Terminated Transaction, then the Non-Defaulting Party shall calculate its Gains and Losses for the Terminated Transaction in a commercially reasonable manner by calculating the arithmetic mean of the quotes of at least three (3) Broker or Index Quotes based on the offers to sell or bids to buy, as applicable, obtained for transactions substantially similar to the Terminated Transaction. Such Broker or Index Quotes must be obtained assuming that the Party obtaining the quote will provide sufficient credit support for the proposed transaction. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts to obtain at least three (3) such Broker or Index Quotes with respect to the Terminated Transaction, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a commercially reasonable manner by reference to information supplied to it by one or more third parties including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets.
Third parties supplying such information may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information; provided, however, that such third parties shall not be Affiliates of either Party. Only in the event the Non-Defaulting Party is not able, after using commercially reasonable efforts, to obtain such third party PG&E DRAFT JULY 2022
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information, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a commercially reasonable manner using relevant market data it has available to it internally.
ARTICLE 8
GENERAL PROVISIONS
8.1 Buyer Audit Rights
In addition to any audit rights provided under the EEI Agreement, Seller shall, during the Term as may be requested by Buyer, provide documentation (which may include, for example, meter data as recorded by a meter approved by the Project’s governing Balancing Authority) sufficient to demonstrate that the Product has been conveyed and delivered to Buyer.
8.2 Governing Law
(a) Notwithstanding any provision to the contrary in the EEI Agreement, the Governing Law applicable to this Agreement shall be as set forth herein. This Section 8.2 does not change the Governing Law applicable to any other confirmation or transaction entered into between the Parties under the EEI Agreement.
(b) 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.
For the purposes of Section 8.2(b) above, the words “party” and “parties” shall have the meaning ascribed to them in the preamble of this Confirmation, and the word “agreement” shall mean the term “Agreement” as defined in the preamble of this Confirmation.
ARTICLE 9
CONFIDENTIALITY
9.1 The confidentiality provisions in Section 10.11 of the EEI Agreement shall apply herein, except that each of Buyer and Seller may disclose the following information regarding this Confirmation:
(a) Party names;
(b) Resource(s);
(c) Term;
(d) Project name, location(s), and information in Appendix A; (e) Capacity of each facility designated as the Project; (f) The fact that a facility designated as the Project is on-line and delivering; (g) Delivery Point;
(h) The quantity of Product expected or actually delivered under this Confirmation; and (i) Information provided by Seller pursuant to Section 8.1 of this Confirmation
9.2 Except for disclosures to comply with any applicable regulation, rule, or order of the CPUC, Federal Energy Regulatory Commission, CEC, or other Governmental Authorities, each Party shall provide Notice of any disclosure made pursuant to this Article 9 to the other Party.
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ACKNOWLEDGED AND AGREED TO BY EACH PARTY’S DULY AUTHORIZED REPRESENTATIVE OR OFFICER:
PACIFIC GAS AND ELECTRIC COMPANY,
a California corporation, limited for all
purposes hereunder to its electric procurement
and electric fuels functions.
[BUYER, (include place of formation and
business type)], by its duly authorized officers
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
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APPENDIX A to
EEI Master Power Purchase and Sale Agreement
Short Term Sales Confirmation
PROJECT
Name of Facility Resource Location CEC
RPS ID
Host
Balancing
Authority
Delivery Point
Burney Forest Products Biomass Burney,
CA
60073A CAISO BRNYFRST_7_B1
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APPENDIX B
FORM OF LETTER OF CREDIT
Issuing Bank Letterhead and Address
STANDBY LETTER OF CREDIT NO. XXXXXXXX
Date: [insert issue date]
Beneficiary: Pacific Gas and Electric Company Applicant: [Insert name and address of Applicant]
77 Beale Street, Mail Code B28L
San Francisco, CA 94105
Attention: Credit Risk Management
Letter of Credit Amount: [insert amount]
Expiry Date: [insert expiry date]
Ladies and Gentlemen:
By order of [insert name of Applicant] (“Applicant”), we hereby issue in favor of Pacific Gas and Electric Company (the “Beneficiary”) our irrevocable standby letter of credit No. [insert number of letter of credit] (“Letter of Credit”), for the account of Applicant, for drawings up to but not to exceed the aggregate sum of U.S. $ [insert amount in figures followed by (amount in words)] (“Letter of Credit Amount”). This Letter of Credit is available with [insert name of issuing bank, and the city and state in which it is located] by sight payment, at our offices located at the address stated below, effective immediately, and it will expire at our close of business on [insert expiry date] (the “Expiry Date”).
Funds under this Letter of Credit are available to the Beneficiary against presentation of the following documents:
1. Beneficiary’s signed and dated sight draft in the form of Exhibit A hereto, referencing this Letter of Credit No. [insert number] and stating the amount of the demand; and
2. One of the following statements signed by an authorized representative or officer of Beneficiary:
A. “Pursuant to the terms of that certain EEI Power Purchase and Sale Agreement (the “Agreement”), dated [insert date of the Agreement], between Beneficiary and [insert name of Seller under the Agreement], or any Confirmation thereunder or related thereto, Beneficiary is entitled to draw under Letter of Credit No. [insert number] amounts owed by [insert name of Seller under the Agreement] under the Agreement; or
B. “Letter of Credit No. [insert number] will expire in thirty (30) days or less and [insert name of Seller under the Agreement] has not provided replacement security acceptable to Beneficiary.
Special Conditions:
1. Partial and multiple drawings under this Letter of Credit are allowed;
2. All banking charges associated with this Letter of Credit are for the account of the Applicant;
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3. This Letter of Credit is not transferable; and
4. The Expiry Date of this Letter of Credit shall be automatically extended without a written amendment hereto for a period of one (1) year and on each successive Expiry Date, unless at least sixty (60) days before the then current Expiry Date we notify you by registered mail or courier that we elect not to extend the Expiry Date of this Letter of Credit for such additional period.
We engage with you that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation, on or before the Expiry Date (or after the Expiry Date in case of an interruption of our business as stated below), at our offices at [insert issuing bank’s address for drawings].
All demands for payment shall be made by presentation of original drawing documents and a copy of this Letter of Credit; or by facsimile transmission of documents to [insert fax number], Attention: [insert name of issuing bank’s receiving department], with original drawing documents and a copy of this Letter of Credit to follow by overnight mail. If presentation is made by facsimile transmission, you may contact us at [insert phone number] to confirm our receipt of the transmission. Your failure to seek such a telephone confirmation does not affect our obligation to honor such a presentation.
Our payments against complying presentations under this Letter of Credit will be made no later than on the sixth (6th) banking day following a complying presentation.
Except as stated herein, this Letter of Credit is not subject to any condition or qualification. It is our individual obligation, which is not contingent upon reimbursement and is not affected by any agreement, document, or instrument between us and the Applicant or between the Beneficiary and the Applicant or any other party.
Except as otherwise specifically stated herein, this Letter of Credit is subject to and governed by the Uniform Customs and Practice for Documentary Credits, 2007 Revision, International Chamber of Commerce (ICC) Publication No. 600 (the “UCP 600”); provided that, if this Letter of Credit expires during an interruption of our business as described in Article 36 of the UCP 600, we will honor drafts presented in compliance with this Letter of Credit, if they are presented within thirty (30) days after the resumption of our business, and will effect payment accordingly.
The law of the State of New York shall apply to any matters not covered by the UCP 600.
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For telephone assistance regarding this Letter of Credit, please contact us at [insert number and any other necessary details].
Very truly yours,
[insert name of issuing bank]
By:
Authorized Signature
Name: [print or type name]
Title: [print or type title]
[Note: All pages must contain the Letter of Credit number and page number for identification purposes.]
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APPENDIX B
FORM OF LETTER OF CREDIT
EXHIBIT A – SIGHT DRAFT
TO
[INSERT NAME AND ADDRESS OF PAYING BANK]
AMOUNT: $________________________ DATE: __________________________
AT SIGHT OF THIS DEMAND PAY TO THE ORDER OF PACIFIC GAS AND ELECTRIC COMPANY THE AMOUNT OF U.S.$________(______________ U.S. DOLLARS) DRAWN UNDER [INSERT NAME OF ISSUING BANK] LETTER OF CREDIT NO. XXXXXX.
REMIT FUNDS AS FOLLOWS:
[INSERT PAYMENT INSTRUCTIONS]
DRAWER
BY: ________________________________
NAME AND TITLE
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MASTER POWER PURCHASE AND SALE AGREEMENT
COVER SHEET
This Master Power Purchase and Sale Agreement (Version 2.1; modified 4/25/00) ("Master Agreement") is made as of the last dated signature on the signature page hereto ("Effective Date"). The Master Agreement, together with the exhibits, schedules and any written supplements hereto, the Party A Tariff, if any, the Party B Tariff, if any, any designated collateral, credit support or margin agreement or similar arrangement between the Parties and all Transactions (including any confirmations accepted in accordance with Section 2.3 hereto) shall be referred to as the "Agreement." The Parties to this Master Agreement are the following:
Name: (“Party A”) Name: Pacific Gas and Electric Company ("Party B"), limited for all purposes hereunder to its Electric
Procurement and Electric Fuels Functions.
All Notices: All Notices:
Street: Street: 245 Market Street
City: Zip: City: San Francisco, CA Zip: 94105
Attn:
Phone:
E-mail:
Attn: Contract Management
Phone: (415) 412-0263
Invoices:
Attn:
Phone:
E-mail:
Invoices:
Attn: Senior Manager, Electric Settlements
Phone: (510) 220-6064
Scheduling:
Attn:
Phone:
E-mail:
Scheduling:
Attn: Mike McDermott
Phone: (415) 973-6222, 973-4072
Payments:
Attn:
Phone:
Duns:
Federal Tax ID Number:
Payments:
Attn: Senior Manager, Electric Settlements
Phone: (510) 220-6064
Duns: 556650034
Federal Tax ID Number: 94-0742640
Wire Transfer:
BNK:
ABA:
ACCT:
Wire Transfer:
BNK: The Bank of Mellon NY
ABA: 011001234
ACCT: 059994
Credit and Collections:
Attn:
Phone:
Credit and Collections:
Attn: Credit Risk Management
Email: [email protected]
Confirmations:
Attn:
Phone:
Confirmations:
Attn: Manager, Fuel Settlements
E-mail: [email protected]
Phone: (415) 940-9528
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The Parties hereby agree that the General Terms and Conditions are incorporated herein, and to the following provisions as provided for in the General Terms and Conditions:
Party A Tariff Tariff Dated Docket Number
Party B Tariff Tariff Dated July 23, 2015 Docket Number ER15-02245-000 CONFIDENTIAL – PG&E Draft (standard)
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Article Two
Transaction Terms and
Conditions
Optional provision in Section 2.4. If not checked, inapplicable Article Four
Remedies for Failure to Deliver
or Receive
Accelerated Payment of Damages. If not checked, inapplicable.
Article Five
Events of Default; Remedies 5.1(g) Cross Default for Party A:
Party A: [Enter Party Name] Cross Default Amount $100,000.00 Other Entity: ______________________ Cross Default Amount 0
5.1(g) Cross Default for Party B:
Party B: Pacific Gas and Electric Company Cross Default Amount $ 200,000,000.00
Other Entity: Cross Default Amount $
5.6 Closeout Setoff
Option A (Applicable if no other selection is made.)
Option B - Affiliates shall have the meaning set forth in the Agreement unless otherwise specified as follows:
Option C (No Setoff)
Article Eight
Credit and Collateral
Requirements 8.1 Party A Credit Protection:
(a) Financial Information:
Option A
Option B Specify
Option C Specify
(b) Credit Assurances:
Not Applicable
Applicable
(c) Collateral Threshold:
Not Applicable
Applicable
If applicable, complete the following:
Party B Collateral Threshold: The Collateral Annex does not secure the obligations of Party B under this Master Agreement
(d) Downgrade Event:
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Not Applicable
Applicable
If applicable, complete the following:
It shall be a Downgrade Event for Party B if Party B’s Credit Rating falls below _____ from S&P or from Moody's or if either S&P or Moody’s does not rate Party B.
Other:
Specify:
(e) Guarantor for Party B: None
Guarantee Amount:
8.2 Party B Credit Protection:
(a) Financial Information:
Option A
Option B Specify:
Option C Specify:
(b) Credit Assurances:
Not Applicable
Applicable
(c) Collateral Threshold:
Not Applicable
Applicable
If applicable, complete the following:
Party A Collateral Threshold: See Collateral Annex
(d) Downgrade Event:
Not Applicable
Applicable
If applicable, complete the following:
It shall be a Downgrade Event for Party A if Party A’s Credit Rating falls below ___ from S&P or ___ from Moody's or if Party A is not rated by either S&P or Moody's.
Other:
Specify:
(e) Guarantor for Party A: __________________________
Guarantee Amount: $__________
Article Ten
Confidentiality Confidentiality Applicable
If not checked, inapplicable.
Schedule M Party A is a Governmental Entity or Public
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Add Section 3.6. If not checked, inapplicable
Add Section 8.6. If not checked, inapplicable
Other Changes
Specify, if any: The following changes shall be applicable.
GENERAL TERMS AND CONDITIONS.
(A) Article One: General Definitions. Amend Article One as follows:
(1) Section 1.1 is amended in its entirety to read: “Affiliate” means (i) with respect to Party A, any entity which directly or indirectly controls, is controlled by, or is under a common control with Party A, and (ii) with respect to Party B, none.
For purposes of this definition, “control” (including, with correlative meaning, the terms “controlling”, “controlled by” and “under common control with”), shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies through the ownership of voting securities, by agreement or otherwise.
(2) Section 1.12 deleted and replaced with the definition of “Credit Rating” as set forth in Paragraph 10 to the Collateral Annex to this Agreement (3) Section 1.27 deleted and replaced with the definition of “Letter of Credit” as set forth in the Collateral Annex to this Agreement (as modified in Paragraph 10 to that Collateral Annex).
(4) Section 1.45 is deleted and replaced with the definition of “Performance Assurance” as set forth in the Collateral Annex to this Agreement (as modified by Paragraph 10 to that Collateral Annex), and “Credit Assurance” as the term is used in this Cover sheet shall mean Performance Assurance as so defined in the Collateral Annex.
(5) In Section 1.50 replace the reference to Section 2.4 with reference to Section 2.5. (6) In Section 1.51 replace “at Buyer’s option” in the fifth line with “absent a purchase”.
(7) In Section 1.53 replace “at Seller’s option” in the fifth line with “absent a sale”. (8) A new Section 1.62 is added as follows:
“Broker or Index Quotes” means quotations solicited or obtained in good faith from (a) regularly published and widely-distributed daily forward price assessments from a broker that is not an Affiliate of either Party and who is actively participating in markets for the relevant Products or (b) end-of-day prices for the relevant Products published by exchanges which transact in the relevant markets.”
(9) A new Section 1.63 is added as follows:
“Market Quotation Average Price” means the arithmetic mean of the quotations solicited in good faith from not less than three (3) Reference Market-Makers (as hereinafter defined); provided, however, that the Party obtaining the quotes shall use reasonable efforts to obtain good faith quotations from at least five (5) Reference Market-Makers and, if at least five (5) such quotations are obtained, the Market Quotation Average Price shall be determined by disregarding the highest and lowest quotations and taking the arithmetic mean of the remaining quotations. The quotations shall CONFIDENTIAL – PG&E Draft (standard)
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be based on the offers to sell or bids to buy, as applicable, obtained for transactions substantially similar to each Terminated Transaction. The quote must be obtained assuming that the Party obtaining the quote will provide sufficient credit support for the proposed transaction. Each quotation shall be obtained, to the extent reasonably practicable, as of the same day and time (without regard to different time zones) on or as soon as reasonably practicable after the relevant Early Termination Date. The day and time as of which those quotations are to be obtained will be selected in good faith by the Party obtaining the quotations and in accordance with the notice pursuant to Section 5.2, which designates the Early Termination Date. If fewer than three quotations are obtained, it will be deemed that the Market Quotation Average Price in respect of such Terminated Transaction or group of Terminated Transactions cannot be determined.”
(10) A new Section 1.64 is added as follows:
“Reference Market Maker” shall have the meaning as set forth in the Collateral Annex to this Agreement.
(11) A new Section 1.65 is added as follows:
“JAMS” means JAMS, Inc., or its successor entity, a judicial arbitration and mediation service.
(B) Article Two: Transaction Terms and Conditions. Amend Article Two as follows:
(1) In Section 2.1, delete the first sentence in its entirety and replace with the following:
“A Transaction, or an amendment, modification or supplement thereto, shall be entered into only upon a writing signed by both Parties.” (2) Section 2.3 is hereby deleted in its entirety and replaced with the following:
2.3 “No Oral Agreements or Modifications. Notwithstanding anything to the contrary in this Master Agreement, the Master Agreement and any and all Transactions may not be orally amended or modified.”
(3) Section 2.4 is hereby amended by deleting the words “either orally or” in the seventh line.
(4) A new Section 2.6 is added to read as follows:
“2.6 Imaged Agreement. Any original executed Master Agreement, Confirmation or other related document may be photocopied and stored in electronic format (the ‘Imaged Agreement’). The Imaged Agreement, if introduced as evidence on paper, the Confirmation, if introduced as evidence in automated facsimile form, the Recording, if introduced as evidence in its original form and as transcribed onto paper or into other written format, and all computer records of the foregoing, if introduced as evidence in printed format, in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the Parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither Party shall object to the admissibility of the Recording, the Confirmation, or the Imaged Agreement (or photocopies of the transcription of the Recording, the Confirmation, or the Imaged Agreement) on the basis that such were not originated or maintained in documentary or written form under either the hearsay rule or the best evidence rule. However, nothing in this Section 2.6 shall preclude a Party from challenging the admissibility of such CONFIDENTIAL – PG&E Draft (standard)
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evidence on some other grounds, including, without limitation, the basis that such evidence has been altered from the original.”
(C) Article Three: Obligations and Deliveries. Amend Article Three as follows:
(1) Add a new Section 3.4as follows:
3.4. Index Transactions. If the Contract Price for a Transaction is determined by reference to a third-party information source, then the following provisions shall be applicable to such Transaction. (a) Market Disruption. If a Market Disruption Event occurs during a Determination Period, the Floating Price for the affected Trading Day(s) shall be determined by reference to the Floating Price specified in the Transaction for the first Trading Day thereafter on which no Market Disruption Event exists; provided, however, if the Floating Price is not so determined within three (3) Business Days after the first Trading Day on which the Market Disruption Event occurred or existed, then the Parties shall negotiate in good faith to agree on a Floating Price (or a method for determining a Floating Price), and if the Parties have not so agreed on or before the twelfth Business Day following the first Trading Day on which the Market Disruption Event occurred or existed, then the Floating Price shall be determined in good faith by taking the average of the price quotations for the Trading Days that are obtained from no more than two (2) Reference Market-Makers selected by each of the Parties (for a total of four (4) price quotations).
(b) For purposes of this Section 3.4, the following definitions shall apply:
(i) “Determination Period” means each calendar month a part or all of which is within the Delivery Period of a Transaction. (ii) “Exchange” means, in respect of a Transaction, the exchange or principal trading market specified in the relevant Transaction. (iii) “Floating Price” means a price per unit in $U.S. specified in a Transaction that is based upon a Price Source.
(iv) “Market Disruption Event” means, with respect to any Price Source, any of the following events: (a) the failure of the Price Source to announce or publish the specified Floating Price or information necessary for determining the Floating price; (b) the failure of trading to commence or the permanent discontinuation or material suspension of trading in the relevant options contract or commodity on the Exchange or in the market specified for determining a Floating Price; (c) the temporary or permanent discontinuance or unavailability of the Price Source; (d) the temporary or permanent closing of any Exchange specified for determining a Floating Price; or (e) a material change in the formula for or the method of determining the Floating Price. (v) “Price Source” means, in respect of a Transaction, the publication (or such other origin of reference, including an Exchange) containing (or reporting) the specified price (or prices from which the specified price is calculated) specified in the relevant Transaction. (vi) “Trading Day” means a day in respect of which the relevant Price Source published the Floating Price.
(c) Corrections to Published Prices. For purposes of determining a Floating Price for any day, if the price published or announced on a given day and used or to be used to determine a relevant price is subsequently corrected and the correction is published or announced by the person responsible for that publication or announcement within two (2) years of the original CONFIDENTIAL – PG&E Draft (standard)
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publication or announcement, either Party may notify the other Party of (i) that correction and (ii) the amount (if any) that is payable as a result of that correction. If, not later than thirty (30) days after publication or announcement of that correction, a Party gives notice that an amount is so payable, the Party that originally either received or retained such amount will, not later than ten (10) Business Days after the effectiveness of that notice, pay, subject to any applicable conditions precedent, to the other Party that amount, together with interest at the Interest Rate for the period from and including the day on which payment originally was (or was not) made to but excluding the day of payment of the refund or payment resulting from that correction.
(d) Calculation of Floating Price. For the purposes of the calculation of a Floating Price, all numbers shall be rounded to three (3) decimal places. If the fourth (4th) decimal number is five (5) or greater, then the third (3rd) decimal number shall be increased by one (1), and if the fourth (4th) decimal number is less than five (5), then the third (3rd) decimal number shall remain unchanged.”
(D) Article Five: Events of Default; Remedies. Amend Article Five as follows (1) In Section 5.1(a) change “three (3) Business Days” to “five (5) Business Days”.
(2) Section 5.1(g) is amended by deleting the phrase “, or becoming capable at such time of being declared,” from the eighth and ninth lines, and deleting the phrase “or (ii) a default by such Party or any other party specified in the Cover Sheet for such Party in making on the due date therefor one or more payments, individually or collectively, in an aggregate amount of not less than the applicable Cross Default Amount (as specified in the Cover Sheet)”.
(3) Section 5.2 is amended to (i) add the words “and time of day” in the third line immediately following the first instance of the word “day” and (ii) add the following at the end of the Section:
“The Non-Defaulting Party shall determine its Gains and Losses by determining the Market Quotation Average Price for each Terminated Transaction. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts, to obtain the Market Quotation Average Price with respect to any Terminated Transaction, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a
commercially reasonable manner by calculating the arithmetic mean of at least three (3) Broker or Index Quotes for transactions substantially similar to each Terminated Transaction. Such Broker or Index Quotes must be obtained assuming that the Party obtaining the quote will provide sufficient credit support for the proposed transaction. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts to obtain at least three (3) Broker or Index Quotes with respect to any Terminated Transaction, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a
commercially reasonable manner by reference to information supplied to it by one or more third parties including, without CONFIDENTIAL – PG&E Draft (standard)
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limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets. Third parties supplying such information may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information; provided, however, that such third parties shall not be Affiliates of either Party. Only in the event the Non-Defaulting Party is not able, after using commercially reasonable efforts, to obtain such third party information, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a
commercially reasonable manner using relevant market data it has available to it internally.”
(4) Section 5.3 is amended by inserting “plus, at the option of the Non-Defaulting Party, any cash or other form of security then available to the Defaulting Party Pursuant to Article Eight,” between the words “that are due to the Non-Defaulting Party,” and “plus any and all other amounts” in the sixth line.
(5) The following is added to the end of Section 5.4: “Notwithstanding any provision to the contrary contained in this Agreement, the Non-Defaulting Party shall not be required to pay to the Defaulting Party any amount under Article 5 until the Non-Defaulting Party receives confirmation satisfactory to it in its reasonable discretion (which may include an opinion of its counsel) that all other obligations of any kind whatsoever of the Defaulting Party to make any payments to the Non-Defaulting Party or any of its Affiliates under this Agreement or otherwise which are due and payable as of the Early Termination Date have been fully and finally performed.”; and (6) Section 5.6 is amended by adding the following sentence to the end of the section: The Parties shall be limited to setting off only against the payment of money under transactions between the Parties with respect to the purchase and sale of natural gas and for which such transaction is solely for the purpose of procuring natural gas for the use of Party B’s electric fuels management function, thereby explicitly excluding from set-off: (i) any payments of money which might arise through a transaction between the Parties for the purchase and sale of natural gas for use by Party B’s core natural gas retail function; and (ii) any payments of money which arise out of an instrument relating to borrowed money indebtedness of any kind (whether matured or unmatured or whether or not contingent). (E) Article Ten: Miscellaneous. Amend Article Ten as follows:
(1) Section 10.2(i) is amended as follows: the phrase “… and is qualified to conduct its business in each jurisdiction in which it will perform a Transaction.” is added to the end of 10.2(i);
(2) Section 10.2(vi) is amended by deleting the phrase “or any of its Affiliates”. (3) Section 10.2(ix) is amended by adding the phrase “it is an ‘eligible contract participant’ as defined in Section 1(a)(18) of the Commodity Exchange Act, as amended, and it is an ‘eligible commercial entity’ as defined in Section 1(a)(17) of the Commodity Exchange Act, as amended”.
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(4) Section 10.2(x) is amended by replacing “and” in the third line with a comma and adding the following at the end of the section: “and it intends to physically settle each Transaction such that if the ‘commodity option’ (as defined in the Commodity Exchange Act, as amended) associated with a Transaction is exercised, the option would result in the sale of an ‘exempt commodity’ (as defined in Section 1(a)(20) of the Commodity Exchange Act, as amended) for immediate or deferred delivery.”
(5) Section 10.5 is amended as follows: (a) the phrase “may be withheld in the exercise of its sole discretion” is deleted and replaced with “which consent may not be unreasonably withheld”; and (b) replace the word “affiliate” with the defined term “Affiliate.”
(6) Section 10.10 is deleted in its entirety.
(7) Section 10.11 is deleted in its entirety and replaced with the following:
“10.11 Confidentiality. If the Parties have elected on the Cover Sheet to make this Section 10.11 applicable to this Master Agreement, neither Party shall disclose the terms or conditions of this Agreement or any Transaction to a third party other than (i) the Party’s or the Party’s Affiliates’ employees, lenders, counsel, accountants, advisors or ratings agencies who have a need to know such information and have agreed to keep such terms confidential (ii) in order to comply with any applicable law, regulation, or any exchange, control area or independent system operator rule or in connection with any court or regulatory proceeding or request applicable to such Party or any of its Affiliates, (iii) as Party B deems necessary in order to demonstrate the reasonableness of its actions to duly authorized governmental or regulatory agencies, including, without limitation, the California Public Utilities Commission (“CPUC”) or any division thereof or (iv) to any Governmental Entity, the CPUC, CAISO and the Procurement Review Group, if applicable; provided, however, each Party shall in the cases described in subsections (ii) through (iv), to the extent practicable, use reasonable efforts to prevent or limit the disclosure. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation. The confidentiality obligation hereunder shall not apply to any information that was or hereafter becomes available to the public other than as a result of a disclosure in violation of this Section 10.11.
Regardless of any other provisions of this Agreement, either Party shall have the right to disclose the terms and conditions of a transaction between the parties to index publishers that aggregate and report such data to the public in the form of indices.
(8) A new Section 10.12 is added as follows:
“10.12 Execution. A signature received via facsimile or email shall have the same legal effect as an original.”
(9) A new Section 10.13 is added as follows:
The Parties agree that Security and Exchange Commission rules for reporting power purchase agreements may require PG&E to collect and possibly consolidate financial information. For any Transaction for which such reporting is required, PG&E is obligated to obtain information from Seller to determine whether or not consolidation is required. If PG&E determines that consolidation is required, PG&E shall require the following during every calendar quarter for the term of such Transaction:
a) Complete financial statements and notes to financial statements and
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b) Financial schedules underlying the financial statements, all within 15 days of the end of each quarter.
c) Access to records and personnel, so that PG&E's independent auditor can conduct financial audits (in accordance with generally accepted auditing standards) and internal control audits (in accordance with Section 404 of the Sarbanes-Oxley Act of 2002).
Any information provided to PG&E shall be treated confidentially and only disclosed on an aggregate basis with other similar entities for which PG&E has power-purchase contracts. The information will only be used for financial statement purposes and shall not be otherwise shared with internal or external parties.
(10) A new Section 10.14 is added as follows:
10.14 Dispute Resolution. Mindful of the high costs of litigation, not only in dollars but time and energy as well, the Parties intend to and do hereby establish a final and binding out-of-court dispute resolution procedure to be followed in the event any controversy should arise out of or concerning the performance of a Transaction. Accordingly, it is agreed as follows:
10.14(a) Negotiation.
(1) Except for disputes arising with respect to a Termination Payment, the Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiations between each Party’s designated representative ("Manager"). Either Party may request a meeting (in person or telephonically) to initiate negotiations. Parties will then designate their respective Managers in writing, and the meeting shall be held within ten (10) Business Days of the other Party’s receipt of such request, at a mutually agreed time and place. If the matter is not resolved within 15 Business Days of their first meeting ("Initial Negotiation End Date"), the Managers shall refer the matter to the designated senior officers of their respective companies, who shall have authority to settle the dispute ("Executive(s)"). Within five (5) Business Days of the Initial Negotiation End Date ("Referral Date"), each Party shall provide one another written notice confirming the referral and identifying the name and title of the Executive who will represent the Party. (2) Within 5 Business Days of the Referral Date the Executives shall establish a mutually acceptable location and date, which date shall not be greater than 30 calendar days from the Referral Date, to meet. After the initial meeting date, the Executives shall meet, as often as they reasonably deem necessary to exchange the relevant information and to attempt to resolve the dispute. (3) All communication and writing exchanged between the Parties in connection with these negotiations shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between the Parties.
(4) If the matter is not resolved within 45 calendar days of the Referral Date, or if the Party receiving the written request to meet, pursuant to subpart (a) above, refuses or will not meet within 10 Business Days, either Party may CONFIDENTIAL – PG&E Draft (standard)
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initiate mediation of the controversy or claim according to the terms of the following Section 10.14(b).
(5) If a dispute exists with respect to the Termination Payment, and such dispute cannot be resolved by good faith negotiation of the Parties within 10 Business Days of the Non-Defaulting Party’s receipt of the detailed basis for the explanation of the dispute then either Party may refer the matter directly to Arbitration, as set forth in Section 10.14(c) below.
10.14(b) Mediation. If the dispute (other than a dispute regarding the Termination Payment) cannot be resolved by negotiation as set forth in Section 1 above, then either Party may initiate mediation, the first-step of a two-step dispute resolution process, which JAMS shall administer. As the first step, the Parties agree to mediate any controversy before a commercial mediator from the JAMS panel, pursuant to JAMS’s then-applicable commercial mediation rules, in San Francisco, California. Either Party may initiate such a mediation by serving a written demand for mediation. The mediator shall not have the authority to require, and neither Party may be compelled to engage in, any form of discovery prior to or in connection with the mediation. If within sixty (60) days after service of a written demand for mediation, or as extended by mutual agreement of the Parties, the mediation does not result in resolution of the dispute, then the Parties shall resolve such controversy through Arbitration by one retired judge or justice from the JAMS panel, which Arbitration shall take place in San Francisco, California, and which the arbitrator shall administer by and in accordance with JAMS’s Commercial Arbitration Rules (“Arbitration”). If the Parties cannot mutually agree on the Arbitrator who will adjudicate the dispute, then JAMS shall provide the Parties with an Arbitrator pursuant to its then-applicable Commercial Arbitration Rules. The period commencing from the date of the written demand for mediation until the appointment of a mediator shall be included within the sixty (60) day mediation period. Any mediator(s) and arbitrator(s) shall have no affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. Either Party may initiate Arbitration by filing with the JAMS a notice of intent to arbitrate within sixty (60) days of service of the written demand for mediation.
10.14(c) Arbitration.
(1) At the request of a Party, the arbitrator shall have the discretion to order depositions of witnesses to the extent the arbitrator deems such discovery relevant and appropriate. Depositions shall be limited to a maximum of three (3) per Party and shall be held within thirty (30) days of the making of a request.
Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of six (6) hours duration unless otherwise permitted by the arbitrator for good cause shown. All objections are reserved for the Arbitration hearing except for objections based on privilege and proprietary and confidential information. The arbitrator shall also have discretion to order the Parties to exchange relevant documents. The arbitrator shall also have discretion to order the Parties to answer interrogatories, upon good cause shown. (2) The arbitrator, once chosen, shall consider any transaction tapes or any other evidence which the arbitrator deems necessary, as presented by each Party. In deciding the award, the provisions of this Agreement will be binding on the arbitrator. The arbitrator will deliver his or her decision in writing within 30 days after the conclusion of the arbitration hearing. The arbitrator shall specify the basis for his or her decision, the basis for the damages award and a CONFIDENTIAL – PG&E Draft (standard)
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breakdown of the damages awarded, and the basis of any other remedy. Except as provided in the Federal Arbitration Act, the decision of the arbitrator will be binding on and non-appealable by the Parties. Each Party agrees that any arbitration award against it may be enforced in any court of competent jurisdiction and that any Party may authorize any such court to enter judgment on the arbitrator’s decision.
(3) The arbitrator shall have no authority to award punitive or exemplary damages or any other damages other than direct and actual damages. (4) Any expenses incurred in connection with hiring the arbitrators and performing the Arbitration shall be shared and paid equally between the Parties.
Each Party shall bear and pay its own expenses incurred by each in connection with the Arbitration, unless otherwise included in a solution chosen by the Arbitration panel. In the event either Party must file a court action to enforce an arbitration award under this Article, the prevailing Party shall be entitled to recover its court costs and reasonable attorney fees.
(5) In the event the Parties choose to litigate any matter hereunder, the Parties hereby waive the right to jury trial.
(6) Except as may be required by Law, the existence, contents or results of any Arbitration hereunder may not be disclosed by a Party or the arbitrator without the prior written consent of both Parties.
(11) A new Section 10.15 is added as follows:
10.15 Mobile Sierra. Notwithstanding any 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 the FERC pursuant to the 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 solely be the “public interest” application of the “just and reasonable” standard of review set forth in United States 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) ( the “Mobile-Sierra” doctrine), as the Mobile-Sierra Doctrine has been clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish 554 U.S. 527 (2008).
(F) Schedule P: Products and Definitions. Amend Schedule P as follows:
Add the following definitions, in appropriate alphabetical order:
“CAISO Energy” means with respect to a Transaction, a Product under which the Seller shall sell and the Buyer shall purchase a quantity of energy equal to the hourly quantity without Ancillary Services (as defined in the Tariff) that is or will be scheduled as a schedule coordinator to schedule coordinator transaction pursuant to the applicable tariff and protocol provisions of the California Independent System Operator (“CAISO”) (as amended from time to time, the “Tariff”) for which the only excuse for failure to deliver or receive is an Uncontrollable Force (as defined in the Tariff).
“WECC” means the Western Electricity Coordinating Council.
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“WSPP” means the Western Systems Power Pool.
“WSPP Agreement” means the Western Systems Power Pool
Agreement as amended from time to time.
“West Firm” or “WSPP Firm” means with respect to a Transaction, a Product that is or will be scheduled as firm energy and consistent with the most recent rules adopted by the WECC for which the only excuses for failure to deliver or receive are if an interruption is (i) due to an Uncontrollable Force as provided in Section 10 of the WSPP Agreement; or (ii) where applicable, to meet Seller's public utility or statutory obligations to its customers. Notwithstanding any other provision in this Master Agreement, if Seller exercises its right to interrupt to meet its public utility or statutory obligations, Seller shall be responsible for payment of damages for failure to deliver firm energy as provided in Article Four of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Master Agreement to be duly executed as of the last dated signature below.
Party A
[Enter Party Name]
Party B
PACIFIC GAS AND ELECTRIC COMPANY
limited for all purposes hereunder to its Electric
Procurement and Electric Fuels Functions
By:
Name: _________________________________
Title: __________________________________
Date: __________________________________
By:
Name:
Title:
Date: ___________________________________
DISCLAIMER: This Master Power Purchase and Sale Agreement was prepared by a committee of representatives of Edison Electric Institute ("EEI") and National Energy Marketers Association ("NEM") member companies to facilitate orderly trading in and development of wholesale power markets. Neither EEI nor NEM nor any member company nor any of their agents, representatives or attorneys shall be responsible for its use, or any damages resulting there from. By providing this Agreement EEI and NEM do not offer legal advice and all users are urged to consult their own legal counsel to ensure that their commercial objectives will be achieved and their legal interests are adequately protected.
GLOSSARY OF TERMS
AB – Assembly Bill
AL - Advice Letter
ALJ – Administrative Law Judge
ARB – Air Resources Board
AReM – Alliance for Retail Energy Markets
BayREN - Bay Area Regional Energy Network
CAISO – California Independent System Operator - a non-profit independent system operator that oversees the operation of the California bulk electric power system, transmission lines and electricity market generated and transmitted by its members (~80% of California’s electric flow).
Its stated mission is to “operate the grid reliably and efficiently, provide fair and open transmission access, promote environmental stewardship and facilitate effective markets and promote infrastructure development. CAISO is regulated by FERC and governed by a five-member governing board appointed by the governor.
CALCCA – California Community Choice Association – Association made up of Community Choice Aggregation (CCA) groups which represents the interests of California’s community choice electricity providers.
CALSEIA – California Solar Energy Industries
CALSLA – California City County Street Light Association CAM – Cost Allocation Mechanism
CARB – California Air Resources Board – The CARB is charged with protecting the public from the harmful effects of air pollution and developing programs and actions to fight climate change in California.
CARE – California Alternative Rates for Energy
CBE – Communities for a Better Environment
CCA – Community Choice Aggregator
CCSF – City and County of San Francisco
CEC – California Energy Commission
CEE – Coalition for Energy Efficiency
CLECA – California Large Energy Consumers Association
CPUC – California Public Utility Commission
C&I – Commercial and Industrial – Business customers
CP – Compliance Period – Time period to become RPS compliant, set by the CPUC (California Public Utilities Commission)
DA – Direct Access – An option that allows eligible customers to purchase their electricity directly from third party providers known as Electric Service Providers (ESP).
DA Cap – the maximum amount of electric usage that may be allocated to Direct Access customers in California, or more specifically, within an Investor-Owned Utility service territory.
DACC – Direct Access Customer Coalition
DA Lottery – a random drawing by which DA waitlist customers become eligible to enroll in DA service under the currently-applicable Direct Access Cap.
DA Waitlist – customers that have officially registered their interest in becoming a DA customer but are not yet able to enroll in service because of DA cap limitations.
DAC – Disadvantaged Community
DASR – Direct Access Service Request – Request submitted by C&I to become direct access eligible.
Demand - The rate at which electric energy is delivered to or by a system or part of a system, generally expressed in kilowatts (kW), megawatts (MW), or gigawatts (GW), at a given instant or averaged over any designated interval of time. Demand should not be confused with Load or Energy.
DER – Distributed Energy Resource – A small-scale physical or virtual asset (e.g. EV charger, smart thermostat, behind-the-meter solar/storage, energy efficiency) that operates locally and is connected to a larger power grid at the distribution level.
Distribution - The delivery of electricity to the retail customer’s home or business through low voltage distribution lines.
DLAP – Default Load Aggregation Point – In the CAISO’s electricity optimization model, DLAP is the node at which all bids for demand should be submitted and settled. SVCE settles its CAISO load at the PG&E DLAP as SVCE is in the PG&E transmission access charge area.
DR – Demand Response - An opportunity for consumers to play a significant role in the operation of the electric grid by reducing or shifting their electricity usage during peak periods in response to time-based rates or other forms of financial incentives.
DRP – Distributed Resource Plans
DWR – Department of Water Resources – DWR manages California’s water resources, systems, and infrastructure in a responsible, sustainable way.
ECR – Enhanced Community Renewable
ED – Energy Division
EE – Energy Efficiency
ELCC – Effective Load Carrying Capacity – The additional load met by an incremental generator while maintaining the same level of system reliability. For solar and wind resources the ELCC is the amount of capacity which can be counted for Resource Adequacy purposes.
EPIC – Electric Program Investment Charge – The EPIC program was created by the CPUC to support investments in clean energy technologies that provide benefits to the electricity ratepayers of PG&E, San Diego Gas & Electric Company (SDG&E), and Southern California Edison Company (SCE)
ERRA – Energy Resource Recovery Account – ERRA proceedings are used to determine fuel and purchased power costs which can be recovered in rates. The utilities do not earn a rate of return on these costs, and only recover actual costs. The costs are forecast for the year ahead. If the actual costs are lower than forecast, then the utility gives money back, and vice versa.
ES – Energy Storage
ESA – Energy Storage Agreement
ESP – Energy Service Provider - An energy entity that provides service to a retail or end-use customer.
EV – Electric Vehicle
FCR – Flexible Capacity Requirements
GHG – Greenhouse gas - water vapor, carbon dioxide, tropospheric ozone, nitrous oxide, methane, and chlorofluorocarbons (CFCs). A gas that causes the atmosphere to trap heat radiating from the earth. The most common GHG is Carbon Dioxide, though Methane and others have this effect as well.
GRC – General Rate Case – Proceedings used to address the costs of operating and maintaining the utility system and the allocation of those costs among customer classes. For California’s three large IOUs, the GRCs are parsed into two phases. Phase I of a GRC determines the total amount the utility is authorized to collect, while Phase II determines the share of the cost each customer class is responsible and the rate schedules for each class. Each large electric utility files a GRC application every three years for review by the Public Advocates Office and interested parties and approval by the CPUC.
GTSR – Green Tariff Shared Renewables
GWh – Gigawatt-hour - The unit of energy equal to that expended in one hour at a rate of one billion watts. One GWh equals 1,000 megawatt-hours.
ICA – Integration Capacity Analysis
IDER – Integrated Distributed Energy Resources
IDSM – Integrated Demand-Side Management
IEP – Independent Energy Producers – California’s oldest and leading nonprofit trade association, representing the interest of developers and operators of independent energy facilities and independent power marketers.
IMD – Independent Marketing Division
IOU – Investor-Owned Utility – A private electricity and natural gas provider.
IRP – Integrated Resource Plan – A plan which outlines an electric utility’s resource needs in order to meet expected electricity demand long-term.
kW – Kilowatt – Measure of power where power (watts) = voltage (volts) x amperage (amps) and 1 kW = 1000 watts
kWh – Kilowatt-hour – This is a measure of consumption. It is the amount of electricity that is used over some period of time, typically a one-month period for billing purposes. Customers are charged a rate per kWh of electricity used.
LCE – Lancaster Choice Energy
LCFS – Low Carbon Fuel Standard – A CARB program designed to encourage the use of cleaner low-carbon fuels in California, encourage the production of those fuels, and therefore, reduce greenhouse gas emissions.
LCR – Local (RA) Capacity Requirements – The amount of Resource Adequacy capacity required to be demonstrated in a specific location or zone.
LMP – Locational Marginal Price – Each generator unit and load pocket is assigned a node in the CAISO optimization model. The model will assign a LMP to the node in both the day- ahead and real time market as it balances the system using the least cost. The LMP is comprised of three components: the marginal cost of energy, congestion and losses. The LMP is used to financially settle transactions in the CAISO.
LNBA – Locational Net Benefits Analysis
Load - An end use device or customer that receives power from an energy delivery system. Load should not be confused with Demand, which is the measure of power that a load receives or requires. See Demand.
LSE – Load-serving Entity – Entities that have been granted authority by state, local law or regulation to serve their own load directly through wholesale energy purchases and have chosen to exercise that authority.
LTPP – Long-Term Procurement Rulemaking
MCE – Marin Clean Energy
MTR – Mid-Term Reliability
MEO – Marketing Education and Outreach
MW – Megawatt – measure of power. A megawatt equals 1,000 kilowatts or 1 million watts.
MWH – Megawatt-hour – measure of energy
NAESCO – National Association of Energy Service Companies NBC – Non-Bypassable Charge
NDA – Non-Disclosure Agreement
NEM – Net Energy Metering – A program in which solar customers receive credit for excess electricity generated by solar panels.
NRDC – Natural Resources Defense Council
NP-15 – North Path 15 – NP-15 is a CAISO pricing zone usually used to approximate wholesale electricity prices in northern California in PG&E’s service territory.
OIR – Order Instituting Rulemaking - A procedural document that is issued by the CPUC to start a formal proceeding. A draft OIR is issued for comment by interested parties and made final by vote of the five Commissioners of the CPUC.
OSC – Order to Show Cause
ORA – Office of Ratepayer Advocates
PA – Program Administrator (for EE Business Plans)
PAC – Public Agency Coalition
PAM – Portfolio Allocation Methodology
PCE – Peninsula Clean Energy Authority
PCC1 – RPS Portfolio Content Category 1 – Bundled renewables where the energy and REC are dynamically scheduled into a California Balancing Authority (CBA) such as the CAISO. Also known as “in-state” renewables
PCC2 – RPS Portfolio Content Category 2 – Bundled renewables where the energy and REC are from out-of-state and not dynamically scheduled to a CBA.
PCC3 – RPS Portfolio Content Category 3 – Unbundled REC PCIA or “exit fee” - Power Charge Indifference Adjustment (PCIA) is an “exit fee” based on stranded costs of utility generation set by the California Public Utilities Commission. It is calculated annually and assessed to customers of CCAs and paid to the IOU that lost those customers as a result of the formation of a CCA.
PCL – Power Content Label – A user-friendly way of displaying information to California consumers about the energy resources used to generate the electricity they sell, as required by AB 162 (Statue of 2009) and Senate Bill 1305 (Statutes of 1997).
PD – Proposed Decision – A procedural document in a CPUC Rulemaking process that is formally commented on by Parties to the proceeding. A PD is a precursor to a final Decision voted on by the five Commissioners of the CPUC.
PG&E – Pacific Gas & Electric
PHC – Prehearing Conference
Pnode – Pricing Node – In the CAISO optimization model, it is a point where a physical injection or withdrawal of energy is modeled and for which a LMP is calculated.
PPA – Power Purchase Agreement – A contract used to purchase the energy, capacity and attributes from a renewable resource project.
PRP – Priority Review Project
PRRR – Progress on Residential Rate Reform
PUC – Public Utilities Code
PURPA – Public Utilities Regulatory Policy Act
RA – Resource Adequacy - Under its Resource Adequacy (RA) program, the California Public Utilities Commission (CPUC) requires load-serving entities—both independently owned utilities and electric service providers—to demonstrate in both monthly and annual filings that they have purchased capacity commitments of no less than 115% of their peak loads.
RAM – Renewables Auction Mechanism
RE – Renewable Energy - Energy from a source that is not depleted when used, such as wind or solar power.
REC - Renewable Energy Certificate - A REC is the property right to the environmental benefits associated with generating renewable electricity. For instance, homeowners who generate solar electricity are credited with 1 solar REC for every MWh of electricity they produce. Utilities obligated to fulfill an RPS requirement can purchase these RECs on the open market.
RES-BCT – Renewables Energy Self-Generation Bill Credit Transfer RFO – Request for Offers
RICA – Renewables Integration Cost Adder
RPS - Renewable Portfolio Standard - Law that requires CA utilities and other load serving entities (including CCAs) to provide an escalating percentage of CA qualified renewable power (culminating at 33% by 2020) in their annual energy portfolio.
SB – Senate Bill
SCE – Southern California Edison
SCP – Sonoma Clean Power Authority
SDG&E – San Diego Gas & Electric
SGIP – Self-Generation Incentive Program – A program which provides incentives to support existing, new, and emerging distributed energy resources (storage, wind turbines, waste heat to power technologies, etc.)
SUE – Super User Electric
SVCE – Silicon Valley Clean Energy
TCR EPS Protocol – The Climate Registry Electric Power Sector Protocol – Online tools and resources provided by The Climate Registry to assist organizations to measure, report, and reduce carbon emissions.
TE – Transportation Electrification
Time-of-Use (TOU) Rates — The pricing of delivered electricity based on the estimated cost of electricity during a particular time-block. Time-of-use rates are usually divided into three or four time-blocks per 24-hour period (on-peak, mid-peak, off-peak and sometimes super off-peak) and by seasons of the year (summer and winter). Real time pricing differs from TOU rates in that it is based on actual (as opposed to forecasted) prices that may fluctuate many times a day and are weather sensitive, rather than varying with a fixed schedule.
TM – Tree Mortality
TURN – The Utility Reform Network - A ratepayer advocacy group charged with ensuring that California IOUs implement just and reasonable rates.
Unbundled RECs - Renewable energy certificates that verify a purchase of a MWH unit of renewable power where the actual power and the certificate are “unbundled” and sold to different buyers.
VAMO – Voluntary Allocation, Market Offer
VPP – Virtual Power Plant – A cloud-based network that leverages an aggregation of distributed energy resources (DERs) to shift energy demand or provide services to the grid. For example, thousands of EV chargers could charge at a slower speed and hundreds of home batteries could discharge to the grid during a demand peak to significantly reduce the procurement of traditional supply resources.