AGREEMENT
In consideration of the foregoing, and for other good and valuable consideration, the receipt and APPROVAL DRAFT Item 5
Attachment 2
adequacy of which are hereby acknowledged, and intending to be legally bound, the Parties hereto hereby agree as follows:
SECTION 1. CONSENT TO ASSIGNMENT, ETC.
1.1 Consent and Agreement.
CCP hereby acknowledges:
(a) Notice of and consents to the assignment as collateral security to Collateral Agent, for the benefit of the Secured Parties, of the Assigned Interest; and (b) The right (but not the obligation) of Collateral Agent in the exercise of its rights and remedies under the Financing Documents, to make all demands, give all notices, take all actions and exercise all rights of Project Company permitted under the ESSA (subject to CCP’s rights and defenses under the ESSA and the terms of this Consent) and accepts any such exercise; provided, insofar as the Collateral Agent exercises any such rights under the ESSA or makes any claims with respect to payments or other obligations under the ESSA, the terms and conditions of the ESSA applicable to such exercise of rights or claims shall apply to Collateral Agent to the same extent as to Project Company.
1.2 Project Company’s Acknowledgement.
Each of Project Company and Collateral Agent hereby acknowledges and agrees that CCP is authorized to act in accordance with Collateral Agent’s instructions, and that CCP shall bear no liability to Project Company or Collateral Agent in connection therewith, including any liability for failing to act in accordance with Project Company’s instructions.
1.3 Right to Cure.
If Project Company defaults in the performance of any of its obligations under the ESSA, or upon the occurrence or non-occurrence of any event or condition under the ESSA which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable CCP to terminate or suspend its performance under the ESSA (a “ESSA Default”), CCP will not terminate or suspend its performance under the ESSA until it first gives written notice of such ESSA Default to Collateral Agent and affords Collateral Agent the right to cure such ESSA Default within the applicable cure period under the ESSA, which cure period shall run concurrently with that afforded Project Company under the ESSA. In addition, if Collateral Agent gives CCP written notice prior to the expiration of the applicable cure period under the ESSA of Collateral Agent’s intention to cure such ESSA Default (which notice shall include a reasonable description of the time during which it anticipates to cure such ESSA Default) and is diligently proceeding to cure such ESSA Default, notwithstanding the applicable cure period under the ESSA, Collateral Agent shall have a period of sixty (60) days (or, if such ESSA Default is for failure by the Project Company to pay an amount to CCP which is due and payable under the ESSA other than to provide ESSA Collateral, thirty (30) days, or, if such ESSA Default is for failure by Project Company to provide ESSA Collateral, ten (10) Business Days) from the Collateral Agent’s receipt of the notice of such ESSA Default from CCP to cure such ESSA Default; provided, (a) if possession of the Project is necessary to cure any such non-monetary ESSA Default and Collateral Agent has APPROVAL DRAFT Item 5
Attachment 2
commenced foreclosure proceedings within sixty (60) days after notice of the ESSA Default and is diligently pursuing such foreclosure proceedings, Collateral Agent will be allowed a reasonable time, not to exceed one hundred eighty (180) days after the notice of the ESSA Default, to complete such proceedings and cure such ESSA Default, and (b) if Collateral Agent is prohibited from curing any such ESSA Default by any process, stay or injunction issued by any Governmental Authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving Project Company, then the time periods specified herein for curing a ESSA Default shall be extended for the period of such prohibition, so long as Collateral Agent has diligently pursued removal of such process, stay or injunction. Collateral Agent shall provide CCP with reports concerning the status of efforts to cure a ESSA Default upon CCP’s reasonable request.
1.4 Substitute Owner.
Subject to Section 1.7, the Parties agree that if Collateral Agent notifies (such notice, a “Financing Document Default Notice”) CCP that an event of default has occurred and is continuing under the Financing Documents (a “Financing Document Event of Default”) then, upon a judicial foreclosure sale, non-judicial foreclosure sale, deed in lieu of foreclosure or other transfer following a Financing Document Event of Default, Collateral Agent (or its designee) shall be substituted for Project Company (the “Substitute Owner”) under the ESSA, and, subject to Sections 1.7(b) and 1.7(c) below, CCP and Substitute Owner will recognize each other as counterparties under the ESSA and will continue to perform their respective obligations (including those obligations accruing to CCP and the Project Company prior to the existence of the Substitute Owner) under the ESSA in favor of each other in accordance with the terms thereof; provided, before CCP is required to recognize the Substitute Owner, the Substitute Owner must have provided reasonable evidence to CCP that the Substitute Owner is a Permitted Transferee (as defined below). For purposes of the foregoing, CCP shall be entitled to assume that any such purported exercise of rights by Collateral Agent that results in substitution of a Substitute Owner under the ESSA is in accordance with the Financing Documents without independent investigation thereof but shall have the right to require that the Collateral Agent and its designee (if applicable) provide reasonable evidence demonstrating the same.
“Permitted Transferee” means any person or entity who is at least as creditworthy as the Project Company on the Effective Date (as defined in the ESSA) and has, or contracts with an operator that has, at least three (3) years of experience either owning or operating energy storage facilities.
Collateral Agent may from time to time, following the occurrence of a Financing Document Event of Default, notify CCP in writing of the identity of a proposed transferee of the ESSA, which proposed transferee may include any Lender, in connection with the enforcement of Lender’s rights under the Financing Documents, and CCP shall, within thirty (30) Business Days of its receipt of such written notice, confirm to Lender whether or not such proposed transferee is a “Permitted Transferee” (together with a written statement of the reason(s) for any negative determination) it being understood that if CCP shall fail to so respond within such thirty (30) Business Day period such proposed transferee shall be deemed to be a “Permitted Transferee”.
1.5 Replacement Agreements.
Subject to Section 1.7, if the ESSA is terminated, rejected or otherwise invalidated as a result of any bankruptcy, insolvency, reorganization or similar proceeding affecting Project Company, its APPROVAL DRAFT Item 5
Attachment 2
owner(s) or guarantor(s), and if Collateral Agent or its designee directly or indirectly takes possession of, or title to, the Project (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure) (“Replacement Owner”), CCP shall, at Collateral Agent’s or any Replacement Owner’s request, enter into a new agreement with Collateral Agent or Replacement Owner, as applicable, for the balance of the obligations under the ESSA remaining to be performed having terms substantially the same as the terms of the ESSA with respect to the remaining Term (“Replacement ESSA”); provided, before CCP is required to enter into a Replacement ESSA, the Replacement Owner must have provided reasonable evidence to CCP that the Replacement Owner satisfies the requirements of a Permitted Transferee. For purposes of the foregoing, CCP is entitled to assume that any such purported exercise of rights by Collateral Agent that results in a Replacement Owner is in accordance with the Financing Documents without independent investigation thereof but shall have the right to require that the Collateral Agent and its designee (if applicable) provide reasonable evidence demonstrating the same. Notwithstanding the execution and delivery of a Replacement ESSA, to the extent CCP is, or was otherwise prior to its termination as described in this Section 1.5, entitled under the ESSA, CCP may suspend performance of its obligations under such Replacement ESSA, unless and until all ESSA Defaults of Project Company under the ESSA or Replacement ESSA have been cured other than any such ESSA Defaults that are personal to Project Company and not reasonably capable of cure (which shall not include any payment default).
1.6 Transfer.
Subject to Section 1.7, a Substitute Owner or a Replacement Owner may assign all of its interest in the Project and the ESSA and a Replacement ESSA to a natural person, corporation, trust, business trust, joint venture, joint stock company, association, company, limited liability company, partnership, Governmental Authority or other entity (a “Person”) to which the Project is transferred; provided, the proposed transferee shall have provided reasonable evidence to CCP that such proposed transferee satisfies the requirements of a Permitted Transferee.
1.7 Assumption of Obligations.
(a) Transferee.
Any transferee under Section 1.6 shall expressly assume in a writing reasonably satisfactory to CCP all of the obligations of Project Company, Substitute Owner or Replacement Owner under the ESSA or Replacement ESSA, as applicable, including posting and collateral assignment of the ESSA Collateral. Upon such assignment and the cure of any outstanding ESSA Default other than any such ESSA Defaults that are personal to Project Company and not reasonably capable of cure (which shall not include any payment default), and payment of all other amounts due and payable to CCP in respect of the ESSA or such Replacement ESSA, the transferor shall be released from any further liability under the ESSA or Replacement ESSA, as applicable. (b) Substitute Owner.
Subject to Section 1.7(c), any Substitute Owner pursuant to Section 1.4 shall be required to perform Project Company’s obligations under the ESSA other than any such ESSA obligations that are personal to Project Company and not reasonably capable of cure (which shall not include APPROVAL DRAFT Item 5
Attachment 2
any payment default), including posting and collateral assignment of the ESSA Collateral; provided, the obligations of such Substitute Owner shall be no more than those of Project Company under the ESSA.
(c) No Liability.
CCP acknowledges and agrees that neither Collateral Agent nor any Secured Party shall have any liability or obligation under the ESSA as a result of this Consent (except to the extent Collateral Agent or a Secured Party is a Substitute Owner or Replacement Owner) nor shall Collateral Agent or any other Secured Party be obligated or required to (i) perform any of Project Company’s obligations under the ESSA, except as provided in Sections 1.7(a) and 1.7(b) and to the extent Collateral Agent or a Secured Party is a Substitute Owner or Replacement Owner, or (ii) take any action to collect or enforce any claim for payment assigned under the Financing Documents. If Collateral Agent becomes a Substitute Owner pursuant to Section 1.4 or enters into a Replacement ESSA, Collateral Agent shall not have any personal liability to CCP under the ESSA or Replacement ESSA and the sole recourse of CCP in seeking enforcement of such obligations against Collateral Agent shall be to the aggregate interest of the Secured Parties in the Project; provided, such limited recourse shall not limit CCP’s right to seek equitable or injunctive relief against Collateral Agent, or CCP’s rights with respect to any offset rights expressly allowed under the ESSA, a Replacement ESSA or the ESSA Collateral.
1.8 Delivery of Notices.
CCP shall deliver to Collateral Agent, concurrently with the delivery thereof to Project Company, a copy of each notice, request or demand given by CCP to Project Company pursuant to the ESSA relating to (a) a ESSA Default by Project Company under the ESSA, (b) any claim regarding Force Majeure by CCP under the ESSA, (c) any notice of dispute under the ESSA, (d) any notice of intent to terminate or any termination notice, and (e) any matter that would require the consent of Collateral Agent pursuant to Section 1.11 or any other provision of this Consent. Collateral Agent acknowledges that delivery of such notice, request and demand shall satisfy CCP’s obligation to give Collateral Agent a notice of ESSA Default under Section 1.3. Collateral Agent shall deliver to CCP, concurrently with delivery thereof to Project Company, a copy of each notice, request or demand given by Collateral Agent to Project Company pursuant to the Financing Documents relating to a default by Project Company under the Financing Documents.
1.9 Confirmations.
CCP will, as and when reasonably requested by Project Company or Collateral Agent from time to time, confirm in writing matters relating to the ESSA (including the performance of same by Project Company); provided, such confirmation may be limited to matters of which CCP is aware as of the time the confirmation is given and such confirmations shall be without prejudice to any rights of CCP under the ESSA as between CCP and Project Company.
1.10 Exclusivity of Dealings.
Except as provided in Sections 1.3, 1.4, 1.8, 1.9 and 2.1, unless and until CCP receives a Financing Document Default Notice, CCP shall deal exclusively with Project Company in connection with the performance of CCP’s obligations under the ESSA. From and after such time as CCP receives APPROVAL DRAFT Item 5
Attachment 2
a Financing Document Default Notice and until a Substitute Owner is substituted for Project Company pursuant to Section 1.4, a Replacement ESSA is entered into or the ESSA is transferred to a Person to whom the Project is transferred pursuant to Section 1.6, CCP shall, until Collateral Agent confirms to CCP in writing that all obligations under the Financing Documents are no longer outstanding or that the Financing Document Default Notice has been withdrawn, deal exclusively with Collateral Agent in connection with the performance of CCP’s obligations under the ESSA, and CCP may irrevocably rely on instructions provided by Collateral Agent in accordance therewith to the exclusion of those provided by any other Person.
1.11 No Amendments.
To the extent permitted by Laws, CCP agrees that it will not, without the Project Company obtaining prior written consent of Collateral Agent (not to be unreasonably withheld, delayed or conditioned) (a) enter into any material supplement, restatement, novation, extension, amendment or modification of the ESSA (b) terminate or suspend its performance under the ESSA (except in accordance with Section 1.3) or (c) consent to or accept any termination or cancellation of the ESSA by Project Company.
SECTION 2. PAYMENTS UNDER THE ESSA
2.1 Payments.
Unless and until CCP receives written notice to the contrary from Collateral Agent, CCP will make all payments to be made by it to Project Company under or by reason of the ESSA directly to Project Company. CCP, Project Company, and Collateral Agent acknowledge that CCP will be deemed to be in compliance with the payment terms of the ESSA to the extent that CCP makes payments in accordance with Collateral Agent’s instructions.
2.2 No Offset, Etc.
All payments required to be made by CCP under the ESSA shall be made without any offset, recoupment, abatement, withholding, reduction or defense whatsoever, other than that expressly allowed by the terms of the ESSA.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF CCP
CCP makes the following representations and warranties as of the date hereof in favor of Collateral Agent:
3.1 Organization.
CCP is a joint powers authority and community choice aggregator duly organized and validly existing under the laws of the state of California, and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. CCP has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and under the ESSA, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.
APPROVAL DRAFT Item 5
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3.2 Authorization.
The execution, delivery and performance by CCP of this Consent and the ESSA have been duly authorized by all necessary corporate or other action on the part of CCP and do not require any approval or consent of any holder (or any trustee for any holder) of any indebtedness or other obligation of CCP which, if not obtained, will prevent CCP from performing its obligations hereunder or under the ESSA except approvals or consents which have previously been obtained and which are in full force and effect.
3.3 Execution and Delivery; Binding Agreements.
Each of this Consent and the ESSA is in full force and effect, have been duly executed and delivered on behalf of CCP by the appropriate officers of CCP, and constitute the legal, valid and binding obligation of CCP, enforceable against CCP in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).
3.4 No Default or Amendment.
Except as set forth in Schedule A attached hereto: (a) Neither CCP nor, to CCP’s actual knowledge, Project Company, is in default of any of its obligations under the ESSA; (b) CCP and, to CCP’s actual knowledge, Project Company, has complied with all conditions precedent to the effectiveness of its obligations under the ESSA; (c) to CCP’s actual knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either CCP or Project Company to terminate or suspend its obligations under the ESSA; and (d) the ESSA has not been amended, modified or supplemented in any manner except as set forth herein and in the recitals hereto.
3.5 No Previous Assignments.
CCP has no notice of, and has not consented to, any previous assignment by Project Company of all or any part of its rights under the ESSA, except as previously disclosed in writing and consented to by CCP.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PROJECT COMPANY Project Company makes the following representations and warranties as of the date hereof in favor of the Collateral Agent and CCP:
4.1 Organization.
Project Company is a [Legal Status of Seller] duly organized and validly existing under the laws of the state of its organization, and is duly qualified, authorized to do business and in good standing in every jurisdiction in which it owns or leases real property or in which the nature of its business requires it to be so qualified, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or its ability to transact its business. Project Company has all requisite power and authority, corporate and otherwise, to enter APPROVAL DRAFT Item 5
Attachment 2
into and to perform its obligations hereunder and under the ESSA, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.
4.2 Authorization.
The execution, delivery and performance of this Consent by Project Company, and Project Company’s assignment of its right, title and interest in, to and under the ESSA to the Collateral Agent pursuant to the Financing Documents, have been duly authorized by all necessary corporate or other action on the part of Project Company.
4.3 Execution and Delivery; Binding Agreement.
This Consent is in full force and effect, has been duly executed and delivered on behalf of Project Company by the appropriate officers of Project Company, and constitutes the legal, valid and binding obligation of Project Company, enforceable against Project Company in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).
4.4 No Default or Amendment.
Except as set forth in Schedule B attached hereto: (a) neither Project Company nor, to Project Company’s actual knowledge, CCP, is in default of any of its obligations thereunder; (b) Project Company and, to Project Company’s actual knowledge, CCP, has complied with all conditions precedent to the effectiveness of its obligations under the ESSA; (c) to Project Company’s actual knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either CCP or Project Company to terminate or suspend its obligations under the ESSA; and (d) the ESSA has not been amended, modified or supplemented in any manner except as set forth herein and in the recitals hereto.
4.5 No Previous Assignments.
Project Company has not previously assigned all or any part of its rights under the ESSA.
SECTION 5. RESERVED
SECTION 6. MISCELLANEOUS
6.1 Notices.
All notices and other communications hereunder shall be in writing, shall be deemed given upon receipt thereof by the Party or Parties to whom such notice is addressed, shall refer on their face to the ESSA (although failure to so refer shall not render any such notice or communication ineffective), shall be sent by first class mail, by personal delivery or by a nationally recognized courier service, and shall be directed (a) if to CCP or Project Company, in accordance with [Notice Section of the ESSA] of the ESSA, (b) if to Collateral Agent, to [Collateral Agent Name], [Collateral Agent Address], Attn: [Collateral Agent Contact Information], Telephone: [___], Fax:
APPROVAL DRAFT Item 5
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[___], and (c) to such other address or addressee as any such Party may designate by notice given pursuant hereto.
6.2 Governing Law; Submission to Jurisdiction.
(a) THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND
THIS CONSENT AND ALL MATTERS ARISING OUT OF THIS CONSENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF CALIFORNIA WITHOUT REGARD TO ANY CONFLICTS OF LAWS
PROVISIONS THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
(b) All disputes, claims or controversies arising out of, relating to, concerning or pertaining to the terms of this Consent shall be governed by the dispute resolution provisions of the ESSA. Subject to the foregoing, any legal action or proceeding with respect to this Consent and any action for enforcement of any judgment in respect thereof may be brought in the courts of the State of California or of the United States of America for the Central District of California, and, by execution and delivery of this Consent, each Party hereby accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and appellate courts from any appeal thereof. Each Party further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to its notice address provided pursuant to Section 6.1 hereof. Each Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Consent brought in the courts referred to above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein shall affect the right of any Party to serve process in any other manner permitted by law.
6.3 Headings Descriptive.
The headings of the several sections and subsections of this Consent are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Consent.
6.4 Severability.
In case any provision in or obligation under this Consent shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
6.5 Amendment, Waiver.
Neither this Consent nor any of the terms hereof may (a) be terminated, amended, supplemented or modified, except by an instrument in writing signed by CCP, Project Company and Collateral Agent or (b) waived, except by an instrument in writing signed by the waiving Party.
APPROVAL DRAFT Item 5
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6.6 Termination.
Each Party’s obligations hereunder are absolute and unconditional, and no Party has any right, and shall have no right, to terminate this Consent or to be released, relieved or discharged from any obligation or liability hereunder until CCP has been notified by Collateral Agent that all of the obligations under the Financing Documents shall have been satisfied in full (other than contingent indemnification obligations) or, with respect to the ESSA or any Replacement ESSA, its obligations under such ESSA or Replacement ESSA have been fully performed.
6.7 Successors and Assigns.
This Consent shall be binding upon each Party and its successors and assigns permitted under and in accordance with this Consent, and shall inure to the benefit of the other Parties and their respective successors and assignee permitted under and in accordance with this Consent. Each reference to a Person herein shall include such Person’s successors and assigns permitted under and in accordance with this Consent.
6.8 Further Assurances.
CCP hereby agrees to execute and deliver all such instruments and take all such action as may be necessary to effectuate fully the purposes of this Consent.
6.9 Waiver of Trial by Jury.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE PARTIES HEREBY
IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY MATTER ARISING HEREUNDER. EACH PARTY FURTHER
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
6.10 Entire Agreement.
This Consent and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Consent and any such agreement, document or instrument, the terms, conditions and provisions of this Consent shall prevail.
6.11 Effective Date.
This Consent shall be deemed effective as of the date upon which the last Party executes this Consent.
6.12 Counterparts; Electronic Signatures.
This Consent may be executed in one or more counterparts, each of which will be deemed to be APPROVAL DRAFT Item 5
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an original of this Consent and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Consent and of signature pages by facsimile transmission, Portable Document Format (i.e., PDF), or by other electronic means shall constitute effective execution and delivery of this Consent as to the Parties and may be used in lieu of the original Consent for all purposes.
[Remainder of Page Left Intentionally Blank.]
APPROVAL DRAFT Item 5
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IN WITNESS WHEREOF, the Parties hereto have caused this Consent to be duly executed and delivered by their duly authorized officers on the dates indicated below their respective signatures. [NAME OF PROJECT COMPANY],
[Legal Status of Project Company].
CALIFORNIA COMMUNITY POWER,
a California joint powers authority.
By:
___________________________________
[Name]
[Title]
Date: ___________________________
By:
___________________________________
[Name]
[Title]
Date: ___________________________
[NAME OF COLLATERAL AGENT],
[Legal Status of Collateral Agent].
By:
________________________________
[Name]
[Title]
Date: ___________________________
APPROVAL DRAFT Item 5
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SCHEDULE A
[Describe any disclosures relevant to representations and warranties made in Section 3.4] APPROVAL DRAFT Item 5
Attachment 2
APPROVAL DRAFT Item 5
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-
EXHIBITU
MATERIAL PERMITS
Exhibit U - 1
EXHIBIT V
PROJECT PARTICIPANTS AND LIABILITY SHARES
Project Participant Liability Share
Clean Power San
Francisco
21.50%
Redwood Coast Energy
Authority
4.00%
San Jose Clean Energy 24.22%
Silicon Valley Clean
Energy
28.42%
Sonoma Clean Power 17.36%
Valley Clean Energy 4.50%
APPROVAL DRAFT Item 5
Attachment 2
DocuSign Envelope ID: 133C4824-6D15-4A87-9743-D7C8293DC6A2 California Community Power
Resolution 22-02-03
APPROVAL OF GOAL LINE LDS PROJECT AND AUTHORIZATION
TO EXECUTE ASSOCIATED AGREEMENTS
WHEREAS, California Community Power (“CC Power”) was created by a Joint Powers Agreement (“JPA”) to develop, acquire, construct, own, manage, contract for, engage in, finance and/or provide energy related programs for the use of and by its Members; and WHEREAS, the current Members of CC Power began a solicitation process in 2020, in advance of CC Power formation, to consider and evaluate Long Duration Energy Storage (“LDS”) projects; and WHEREAS, the CC Power Board accepted the Project Development Process establishing a roadmap for the development and progress of CC Power projects and programs; and WHEREAS, the LDS Project Oversight Committee made up of CC Power member staff, along with project negotiators and project counsel (“Project Team”), has completed negotiations on the Goal Line LDS Project, an 8-hour discharge duration, lithium-ion battery project; and WHEREAS, the Project Team, through the negotiation process, has developed and negotiated an Energy Storage Service Agreement, Buyer Liability Pass Through Agreement, and Project Participation Share Agreement associated with the Goal Line LDS Project; and WHEREAS, pursuant to Section 6.02 of the CC Power JPA, on February 25, 2022, the CC Power Board has waived the required notice of intent to bring the Goal Line LDS Project to the Board for approval; and
WHEREAS, while the structure of CC Power is predicated on voluntary project participation and not all Members will be participating in the Goal Line LDS project, the JPA requires action by the full Board, not simply the project participating members, to approve projects within the purview of CC Power; and
WHEREAS, it is the intent that the CC Power Board approve the Goal Line LDS Project and associated agreements with the understanding that approval by participating members is a condition precedent to the effectiveness of the agreements.
NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of CC Power hereby:
1. Approve the Goal Line LDS Project as within the purpose and power of CC Power.
2. Approve the Energy Storage Service Agreement and associated Buyer Liability Pass Through Agreement, in substantially final form, attached hereto as Attachment A.
3. Approve the Project Participation Share Agreement, in substantially final form, attached hereto as Attachment B.
4. Delegate the authority to the General Manager to execute the Goal Line LDS Project Agreements described above and attached hereto, on behalf of CC Power.
Item 5
Attachment 3
DocuSign Envelope ID: 133C4824-6D15-4A87-9743-D7C8293DC6A2 California Community Power
Resolution 22-02-03
Chair Attest by:
PASSED AND ADOPTED by the Board of Directors of California Community Power this 25th day of February, 2022, by the following vote:
Aye No Abstain Absent
Central Coast Community Energy Rob Shaw X
CleanPowerSF Barbara Hale X
East Bay Community Energy Nick Chaset X
Marin Clean Energy Dawn Weisz X
Peninsula Clean Energy Jan Pepper X
Redwood Coast Energy Authority Matthew Marshall X
San José Clean Energy Lori Mitchell X
Silicon Valley Clean Energy Girish Balachandran X
Sonoma Clean Power Authority Geof Syphers X
Valley Clean Energy Mitch Sears X
Secretary
Item 5
Attachment 3
DocuSigned by:
~L~i~
Staff Report – Item 6
Item 6: Adopt Resolution Approving Funding Allocations for “Double Down” on Decarbonization Programs
From: Girish Balachandran, CEO
Prepared by: Justin Zagunis, Director of Decarbonization and Grid Innovation Programs Date: 3/9/2022
RECOMMENDATION
Staff recommends that the Board of Directors (“Board”) adopt Resolution No. 2022-10 to approve the initial funding allocations and details provided for the five programs herein. This resolution allocates the $17 million in additional programs funding approved by the Board in February 2022 and identifies what elements will be added to the programs with these additional resources. The allocations and additional programmatic details are summarized in the table below.
Program New Elements Allocation
Multifamily EV charging
assistance and funding
• Add incentives to existing technical assistance program • Direct installation for toughest sites, affordable housing +$2M Whole-building
electrification emphasis
and funding
• Menu of incentives, pushing towards total electrification • Direct installation for large, affordable multifamily +$4M Local policy support • EV charging incentives for new construction affordable housing (supporting Reach Codes 2.0)
• Support for cities to identify and pursue existing building policies (e.g. retrofit-on-burnout, EV charging mandate) +$3M
Permitting simplification • Funding and technical resources for cities to simplify their processes (and compliance support for EVI) +$3M
Accessible financing • Pursue Tariffed On-Bill financing • Test out alternate financing approach(es) +$5M
TOTAL +$17M
Table 1: Summary of initial allocations and program details
BACKGROUND
In August 2021, the Board provided feedback on the FY 2021-22 proposed operating budget indicating an interest in “doubling down” on decarbonization program efforts in the context of the need for urgent climate action and the forecasted reserves in the FY 2021-22 budget. Staff brought these five program concepts to the Board in November 2021 to discuss how they fit with the critical role that SVCE and its cities can play in achieving Item 6
/ A"\ SILICON VALLEY
~CLEAN ENERGY
Agenda Item: 6 Agenda Date: 3/9/2022
full decarbonization. The Board approved $17 million in additional funding for programs in February 2022, on top of the roughly $6 million per year that is already committed to programs (based on 2% of revenues).
STAKEHOLDER REVIEW AND FEEDBACK
Staff has received feedback on the program approach, concepts, funding allocations and details from various stakeholder groups. Environmental leaders and the Executive Committee were consulted in September-October 2021 on the direction of the double down, followed by the Board in November 2021. Through the monthly standing meetings with SVCE and its member agencies, interested sustainability staff from the agencies reviewed and provided feedback. Finally, the Executive Committee met again in February 2022 for a discussion on the material presented in this item. All of this input informs the final proposal brought to the Board today.
ANALYSIS & DISCUSSION
Overview
The Board has approved an additional one-time transfer of $17 million to spend on decarbonization programs, which will likely take ~3 years to fully deploy. This will double the funding available for these programs over the time period – from ~$18 million to ~$35 million. The five programs receiving additional funding through the double down allocations are active or planned programs already approved by the Board in some form. By infusing them with additional dollars, staff will significantly increase the scope and ambition of these programs.
The selection of these five programs was driven by learnings from previous and ongoing SVCE programs, along with the success of the first Reach Code initiative. Programs alone will not be sufficient to achieve rapid and widespread decarbonization through electrification; policy is the strongest lever to make large-scale impact. But policy is not passed in a vacuum – there must be support to get it passed and complementary efforts to ensure it can succeed. Programs help to build the foundation (e.g. by providing incentives to support cost-effectiveness) or to identify and showcase when pieces of the foundation are already in place (e.g. awareness/education).
Viewing programs through the lens of enabling policy will ensure that SVCE is best supporting rapid and comprehensive decarbonization.
Multifamily EV charging assistance and grants/incentives (+$2 million) SVCE is running a technical assistance program to help multifamily properties consider EV charging, get bids and pursue incentives. But existing regional and state incentive programs can be challenging for multifamily sites to participate in due to utilization requirements, rapid uptake and other barriers. The double down allocation will allow SVCE to add $1 million in incentives to ensure sites who go through SVCE’s technical assistance can add chargers. The other $1 million will be set aside to run a direct installation program that will target sites in need of even more support (primarily affordable housing). These efforts will enable future policy by further testing how EV charging approaches connect to tenant EV adoption, as well as supporting growth of the local workforce.
Whole building electrification grants/incentives (+$4 million) SVCE is running a heat pump water heater incentive program and plans to add other end uses through an upcoming program leveraging outside incentives. But convincing customers to switch not just one device in their home but to move towards complete electrification is challenging and novel. The double down allocation will allow SVCE to add $1 million for residential and $1 million for commercial incentives to promote complete electrification or pre-wiring. The other $2 million will be set aside to run a direct installation program to target large affordable housing properties. These efforts will enable future policy by supporting the local product markets, tracking actual costs and necessary program approaches for complete electrification.
Reach Codes 2.0 and pilot policy (+$3 million)
SVCE is working with its member agencies on the next round of reach codes, to build on the success of the last cycle. But taking more aggressive policy steps can be difficult due to limited resources and political concerns.
The double down allocation will allow SVCE to add $1.5 million to the Reach Codes 2.0 effort as EV charger incentives for affordable housing new construction compliance. The other $1.5 million will be used to support Item 6
Agenda Item: 6 Agenda Date: 3/9/2022
interested agencies in exploring policies targeting existing buildings through free technical analysis, an award for agencies who adopt innovative policy and potentially a tailored incentive program to pair with the policy if necessary. These efforts will enable future policy by first testing out approaches at a smaller scale and garnering support for more widespread efforts.
Permitting simplification (+$3 million)
SVCE previously interviewed its agencies and put together a recommendation document to assist with simplification. But making substantial changes to permitting, inspection and other processes can be difficult for agencies due to limited resources. The double down allocation will allow SVCE to provide $0.5 million to help agencies comply with AB 970 ahead of 2023. The other $2.5 million will help simplify general electrification by providing free technical support, offering grants to cities to commit staff resources towards this effort and potentially offering an award for cities able to get their processes to meet certain outcomes (e.g. low fees, quick turnaround time). These efforts will enable future policy by reducing friction in customer electrification process and improving cost-effectiveness.
Accessible financing +$5 million)
SVCE plans to assess financing mechanisms, particularly for low-income communities. But deploying financing solutions for these customers will require additional effort, particularly to resolve co-pay and up-front capital barriers. The double down allocation will allow SVCE to put $4 million towards a tariffed on-bill financing pilot that is co-funded by the state and is particularly promising because repayment is tied to the customer meter and should better allow renters to participate. The other $1 million will be used to pilot one or more other financing approaches at a smaller scale. These efforts will enable future policy by demonstrating a way to support electrification without requiring major up-front capital investments – particularly key for ensuring lower-income customers can participate in the benefits of electrification.
Equity Framework
Ensuring that all SVCE customers can enjoy the benefits of electrification is critical not just because equitable access is important but also because comprehensive electrification necessitates participation by all customers.
SVCE has long had “equity in service” as a priority guiding programs, and the portfolio has included programs targeting certain populations due to barriers and issues that they uniquely experience (e.g. EV charging at multifamily sites). To help SVCE ensure equity is rigorously and consistently considered, staff have created an Equity Framework that provides clear steps to take when designing, deploying and evaluating programs – this will ensure equity is systematically incorporated across the portfolio. Not all programs will target all customers, but the Equity Framework will ensure that SVCE tracks and understands the design decisions made and how they impact access and participation. A key component of the Framework is to build strong ties with local community-based organizations to help with communication and provide input on program approaches.
STRATEGIC PLAN
The proposal supports the 6th Focus Area approved by the Board in September 2021 to “grow the organization to expand our strategic efforts on climate change and decarbonization” and the updated 2021-2022 Strategic Plan Goal 8, which is to “coordinate development of decarbonization and resilience strategy, lead design of local policy and programs, and support program deployment.”
FISCAL IMPACT
This item has no incremental fiscal impact, as the $17 million being allocated has already been authorized by the Board. This resolution merely indicates how the funding will be split amongst program areas and what features will be added to those programs as a result.
ATTACHMENTS
1. Resolution No. 2022-10 Approving Funding Allocations for “Double Down” on Decarbonization Programs
2. List of program design feedback from the Board meeting in November 2021 Item 6
1 RESOLUTION 2022-10
SILICON VALLEY CLEAN ENERGY AUTHORITY
RESOLUTION NO. 2022-10
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SILICON
VALLEY CLEAN ENERGY AUTHORITY APPROVING FUNDING
ALLOCATIONS FOR “DOUBLE DOWN” ON DECARBONIZATION
PROGRAMS
WHEREAS, the Silicon Valley Clean Energy Authority (“Authority”) was formed on March 31, 2016 pursuant to a Joint Powers Agreement to study, promote, develop, conduct, operate, and manage energy programs in Santa Clara County; and WHEREAS, the Board adopted 2025 and 2030 greenhouse gas emissions reduction targets; and
WHEREAS, the Board adopted the Decarbonization Strategy and Programs Roadmap and initial budget for the implementation of decarbonization programs pursuant to the Roadmap on December 12, 2018 by Resolution No. 2018-20; and WHEREAS, the Board provided feedback on the FY 2021-22 proposed operating budget indicating an interest in “doubling down” on decarbonization program efforts;
WHEREAS, Staff brought five program concepts to the Board in November 2021 to discuss how they fit with the critical role that SVCE and its cities can play in achieving full decarbonization;
WHEREAS, the Board approved $17 million in additional funding for programs in February 2022, on top of the 2% of revenues per year that is already committed to programs;
NOW THEREFORE, the Board of Directors of the Silicon Valley Clean Energy Authority does hereby approve the initial funding allocations and details provided for the five decarbonization programs as outlined in the following table:
Program New Elements Allocation
Multifamily EV charging
assistance and funding
• Add incentives to existing technical assistance program • Direct installation for toughest sites, affordable housing +$2M Whole-building
electrification emphasis
and funding
• Menu of incentives, pushing towards total electrification • Direct installation for large, affordable multifamily +$4M Item 6
Attachment 1
2 RESOLUTION 2022-10
Local policy support • EV charging incentives for new construction affordable housing (supporting Reach Codes 2.0)
• Support for cities to identify and pursue existing building policies (e.g. retrofit-on-burnout, EV charging mandate) +$3M
Permitting simplification • Funding and technical resources for cities to simplify their processes (and compliance support for EVI) +$3M
Accessible financing • Pursue Tariffed On-Bill financing • Test out alternate financing approach(es) +$5M
TOTAL +$17M
PASSED AND ADOPTED this 9
th day of March, 2022, by the following vote:
JURISDICTION NAME AYE NO ABSTAIN ABSENT
City of Campbell Director Gibbons
City of Cupertino Director Willey
City of Gilroy Director Hilton
City of Los Altos Director Fligor
Town of Los Altos Hills Director Tyson
Town of Los Gatos Director Rennie
City of Milpitas Director Chua
City of Monte Sereno Director Ellahie
City of Morgan Hill Director Martinez Beltran
City of Mountain View Director Abe-Koga
County of Santa Clara Director Lee
City of Saratoga Director Walia
City of Sunnyvale Director Klein
Chair
ATTEST:
Andrea Pizano, Board Secretary
Item 6
Attachment 1
1 Attachment 2:
Summary of
Board Feedback
from November
Item 6
Attachment 2
2 Incorporating feedback
Board provided significant
input on program details
for staff to consider
• Some input has already been incorporated
into initial program details
• As final design work is completed for
double down programs, staff will continue to
review the Board input and consider
specific design decisions accordingly
Item 6
Attachment 2
3 Multifamily EV Charging Assistance and Grants/Incentives Support for proposed programs
Comment Status Staff Comment
Make sure we reach the decisionmakers at these properties. Plan to Include This is a key element of our existing program that offers free technical assistance.
Think about different charging power levels. Plan to Include The existing program includes L1 and L2
technologies, and we intend to support
incentives for both.
Item 6
Attachment 2
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4 Whole-Building Electrification Grants/Incentives
Support for proposed programs
Comment Status Staff Comment
Should we do geographical targeting with incentives? Plan to Include Important to consider as we try to support pruning of the natural gas distribution system.
Should we focus on newer homes because they are less likely to be renovated? That would protect the SVCE investment in electrification for longer. Under Consideration
We will continue to discuss this. There are
some concerns around unintended
consequences for equitable access to the
incentives.
Item 6
Attachment 2
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5 Reach Codes 2.0 and Pilot Policy
Support for proposed programs
Comment Status Staff Comment
Prioritize new construction. Plan to Include -
Common ordinances across cities would be helpful. Also consistency in interpreting the code by officials. Plan to Include - Consider the Utility User Tax as a tool and a potential barrier to electrification costs. Under Consideration We will work with cities to consider this topic and determine where/if to address it.
Using the codes to support EV charging at multifamily properties is a good idea. Plan to Include -
Can we share results from other cities that have adopted reach codes? What are the impacts? Plan to Include
We are working on the evaluation of Reach
Codes 1.0 and will share information when we
have it. Further, our support will include
analysis of other codes where applicable.
Could we summarize where each city is and share that? SVCE can keep pushing things forward. Plan to Include -
Item 6
Attachment 2
6 Permitting Simplification
Support for proposed programs
Comment Status Staff Comment
What is the staff impact on city officials when so many pieces of equipment need to be replaced? What is the endgame – eventually no permits required? Could we certify at the state level so that there isn’t a need for inspection?
Under Consideration
We will discuss necessary support and
preferred approaches with city staff through
the program. SVCE will consider what
resources and policies may help.
Common ordinances across cities would be helpful. Plan to Include - Could we summarize where each city is and share that? SVCE can keep pushing things forward. Plan to Include
Staff has worked with city officials to complete
an initial assessment of permitting across all
cities and will build on that work.
Could SVCE offer grants/support to cities to help with staffing constraints on this (e.g. an intern/fellow)? Plan to Include Intending to include additional funding and
other resources to help all cities pursue
permitting simplification, even with staffing
constraints.
Item 6
Attachment 2
7 Accessible Financing
Support for proposed programs
Comment Status Staff Comment
Could this include financing of the EVs, not just EV charging? Under Consideration We are tracking what else is happening at the
state and regional levels to determine what
role SVCE can best play.
Item 6
Attachment 2
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8 For staff consideration generally, or as specific program ideas Additional comments (1 of 3)
Comment Status Staff Comment
Should we be focusing on the biggest bang for the buck and/or the fastest return? Under Consideration
We want these, and also some other key
elements: scalability, equity, and things that
are within SVCE control/influence. We will
continue to consider this balance.
Leveraging relationships with city staff is important across cities. Plan to Include - Some concern about de-prioritizing the fleet electrification grants. Under Consideration The currently planned SVCE program would be
small-scale and focused on helping various
fleet owners plan for electrification – including
help going after other incentives for the
vehicles and charging. We will delay for now,
rather than cancel.
As a part of education and awareness, could we offer a 211-like help line for those with appliance failures to promote electrification at that moment?
Under Consideration
The SVCE suite of online resources in the eHub
has a lot of relevant info for customers in
these situations, but there may be other ways
we can continue to help make it come alive
and be engaging.
Item 6
Attachment 2
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9 For staff consideration generally, or as specific program ideas Additional comments (2 of 3)
Comment Status Staff Comment
Should SVCE focus on supporting Caltrain electrification? Put in Parking Lot, for Now
SVCE Board members may be best suited to
help push this initiative forward, rather than
staff via a program. There are other entities
involved in planning and funding that are
better suited.
Doing substantial PR and awareness-building of electric technologies is important. Plan to Include
SVCE will continue ongoing and planned
outreach via emails, online, and returning to
in-person events. Further, the incentive
programs will help promote awareness through
demonstration projects.
Make sure we leverage best practices from others who are working on these same challenges. Plan to Include -
Could SVCE help cities compare and align their CAPs? Or play some sort of coordinating role there?
Put in Parking Lot, for
Now
SVCE has been and will continue to support
cities through compiling and maintaining GHG
inventories on an annual basis. SVCE also
provides a forum for cross-city sharing of key
topics like CAP approaches, initiatives and
deliverables. Further centralizing is challenging
given divergent timelines and processes.
Item 6
Attachment 2
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10 For staff consideration generally, or as specific program ideas Additional comments (3 of 3)
Comment Status Staff Comment
Could we add police vehicles and/or support for VTA electrification to the SVCE fleet electrification program?
Put in Parking Lot, for
Now
Given the scope of the planned SVCE program,
it may include some police vehicles but was
not intended to support VTA given the other
entities engaged in that effort.
Figure out specific recommendations for cities to reduce emissions from their own operations. Under Consideration
SVCE will continue to discuss with city staff to
identify support needed. City staff will play a
key role here.
Think about the lifetime of equipment we are incentivizing as a part of the prioritization. Plan to Include
Lifetime emissions is an important factor that
will be considered. Scalability and key SVCE
role will also influence decisions.
Support autonomous EV deployment. Put in Parking Lot, for Now
Will keep an eye on the technology and see
when/if SVCE could play an important role.
Support hydrogen vehicle deployment, particularly for VTA. Put in Parking Lot, for Now
Will keep an eye on the technology. SVCE’s
core role as an electricity provider fits more
naturally with EVs, and the EV market is
greater for residential. VTA has support from
other entities that are better suited.
Item 6
Attachment 2
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Staff Report – Item 7
Item 7: Update on New Construction Reach Codes and Existing Building Electrification Policies
From: Girish Balachandran, CEO
Prepared by: Don Bray, Director of Account Services and Community Relations Zoe Elizabeth, Manager of Energy Services
Date: 3/9/2022
RECOMMENDATION
Staff requests that the Board of Directors receive an update from the Account Services and Community Relations team on New Construction Reach Codes and Existing Building Electrification Policies.
BACKGROUND
In 2019, SVCE offered technical support to member jurisdictions that were evaluating options for amending the state’s 2020 building code. Eleven of SVCE’s jurisdiction’s passed reach codes applying to the 2019 building code. These reach codes (with the exception of those passed by Morgan Hill and Campbell) will expire 12/31/2022.
Staff is in the process of supporting member agencies with core technical assistance and supportive elements, to adopt, renew, or enhance these codes. In addition, staff is in the process of developing resources that will support policies for existing building electrification. The details of these efforts will be discussed in more detail at the Board of Directors meeting.
ANALYSIS & DISCUSSION
SVCE staff will address the analysis in the form of a presentation to the Board of Directors.
STRATEGIC PLAN
The proposal supports SVCE’s Strategic Plan Goal 8, “coordinate development of decarbonization and resilience strategy, lead design of local policy and programs, and support program deployment.”
FISCAL IMPACT
N/A
ATTACHMENTS
The presentation for this item is posted to the SVCE website.
Item 7
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Appendix A
Silicon Valley Clean Energy
Board of Directors Meeting
March 9, 2022
Appendix A
Power Resource Contracts Executed by CEO
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DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Joint CCA WSPP Standard RA Confirmation
1 WSPP RESOURCE ADEQUACY CONFIRMATION
This Confirmation confirms the transaction between Silicon Valley Clean Energy Authority, a California joint powers authority (“Seller”) and Central Coast Community Energy, a California joint powers authority (“Purchaser”), and each individually a “Party” and together the “Parties”, dated as of February 15, 2022 (the “Effective Date”), by which Seller agrees to sell and deliver, and Purchaser agrees to purchase and receive, the Product (the “Transaction”). This Transaction is governed by the WSPP Agreement dated July 28, 2020 (the “WSPP Agreement”). The WSPP Agreement and this Confirmation, including any applicable appendices, exhibits or amendments thereto, shall be collectively referred to herein as the “Agreement” and will constitute a single agreement between the Parties with respect to the Transaction. Capitalized terms not otherwise defined in this Confirmation or the WSPP Agreement are defined in the Tariff.
ARTICLE 1
TRANSACTION TERMS
Product, Delivery Period, Contract Quantity, Contract Price and other specifics of the Product are in Appendix B. Appendices A, B, C, and D are incorporated into this Confirmation. ☐ Firm RA Product:
Seller shall provide Purchaser with the Product from the Unit in the amount of the Contract Quantity. If the Unit is not available to provide the full amount of the Contract Quantity for any reason, then Seller shall have the option to supply Alternate Capacity pursuant to Section 2.3 to fulfill the remainder of the Contract Quantity during such period. If Seller fails to provide Purchaser with the Contract Quantity and has failed to supply Alternate Capacity to fulfill the remainder of the Contract Quantity during such period, then Seller shall be liable for damages and/or required to indemnify Purchaser for penalties or fines pursuant to the terms of Section 2.5. ☒ Contingent Firm RA Product:
Seller shall provide Purchaser with Product from the Unit in the amount of the Contract Quantity.
If the Unit is not available to provide the full amount of the Contract Quantity as a result of any reduction of the Contract Quantity of the Unit in accordance with Section 2.2, Seller shall have the option to notify Purchaser that either (a) Seller will not provide the portion of the Contract Quantity attributable to such reduction during the period of such non-availability; or (b) Seller will supply Alternate Capacity to fulfill the remainder of the Contract Quantity during such period pursuant to Section 2.3. If the Unit is not available to provide the full amount of the Contract Quantity as a result of any reason other than as provided in Section 2.2, then Seller shall have the option to supply Alternate Capacity pursuant to Section 2.3 to fulfill the remainder of the Contract Quantity during such period. If Seller fails to provide Purchaser with the Expected Contract Quantity from the Unit and has failed to supply Alternate Capacity to fulfill the remainder of the Expected Contract Quantity during such period, then Seller shall be liable for damages and/or required to indemnify Purchaser for penalties or fines pursuant to the terms of Section 2.5.
Appendix A 3CE
DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Joint CCA WSPP Standard RA Confirmation
2 ARTICLE 2
DELIVERY OBLIGATIONS AND ADJUSTMENTS
2.1 Sale and Delivery of Product
(a) For each Showing Month of the Delivery Period, Seller shall sell and deliver to Purchaser, and Purchaser shall purchase and receive from Seller, the Expected Contract Quantity of the Product from the Shown Unit(s). Seller’s obligation to deliver the Expected Contract Quantity of Product for the Delivery Period is firm and will not be excused for any reason.
(b) Seller shall deliver the Expected Contract Quantity by submitting to CAISO in its Supply Plan the Shown Unit(s) and the characteristics of the Shown Unit(s) and Product for Purchaser, as further specified in Appendix B, all in compliance with this Confirmation.
(c) Seller shall cause all Supply Plans to meet and be filed in conformance with the requirements of the CPUC and the Tariff. Seller shall submit, or cause the Shown Unit’s SC to submit, on a timely basis with respect to each applicable Showing Month, Supply Plans in accordance with the Tariff and CPUC requirements to identify and confirm the Product delivered to Purchaser for each Showing Month of the Delivery Period. The total amount of Product identified and confirmed for such Showing Month shall equal the Expected Contract Quantity, including a request for Hold-Back Capacity pursuant to Article Five of this Confirmation. (d) Seller shall sell and deliver Product from a Shown Unit that meets the requirements set forth in Appendix B, including the Resource Category and, if applicable, the Flexible Capacity Category. In no event shall a Shown Unit utilize coal or coal materials as a source of fuel. A Shown Unit must be a specific resource that is connected directly to the CAISO controlled grid or be under the operational control of CAISO. A Shown Unit may not be an unspecified import. Seller shall identify the Shown Unit(s) and Expected Contract Quantity by providing Purchaser with the specific information contemplated in Appendix B no later than the Notification Deadline for the relevant Showing Month.
(e) If CAISO rejects either the Supply Plan or the Resource Adequacy Plan with respect to any part of the Expected Contract Quantity for the Shown Unit(s) in any Showing Month, the Parties shall confer, make such corrections as are necessary for acceptance, and resubmit the corrected Supply Plan or Resource Adequacy Plan for validation before the applicable deadline for the Showing Month. (f) The Product is delivered and received when the CIRA Tool shows that the Supply Plan submitted in compliance with Purchaser’s instructions, including Purchaser’s instructions to withhold all or part of the Expected Contract Quantity from Seller’s Supply Plan for any Showing Month during the Delivery Period, has been accepted for the Product from the Shown Unit(s) by CAISO. Seller has failed to deliver the Appendix A
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DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Joint CCA WSPP Standard RA Confirmation
3 Product if (i) Purchaser has elected to submit the Product from the Shown Unit in its Resource Adequacy Plan and such submission is accepted by the CPUC and the CAISO but the Supply Plan and Resource Adequacy Plan are not matched in the CIRA Tool and are rejected by CAISO notwithstanding performance of Section
2.1(e) or (ii) Seller fails to submit the volume of Expected Contract Quantity for any Showing Month in such amount as instructed by Purchaser for the applicable Showing Month. Seller will not have failed to deliver the Expected Contract Quantity if Purchaser fails or chooses not to submit the Shown Unit(s) and the Product in its Resource Adequacy Plan with the CPUC or CAISO. (g) Hold-Back Capacity, if any, is deemed Contract Quantity delivered, unless utilized under Article Five as Substitute Capacity, then Contract Quantity is delivered according to the timeline requirements therein.
(h) The Shown Unit(s) must not have characteristics that would trigger the need for Purchaser or Seller to file an advice letter or other request for authorization with the CPUC or for Purchaser to make a compliance filing pursuant to California Public Utilities Code Section 380.1
2.2 Reductions in ContractQuantity
(a) If Seller is providing Contingent Firm RA Product, Seller’s obligation to deliver the Contract Quantity for each Showing Month may be reduced at Seller’s option by the amount of any Planned Outages which exist with respect to any portion of the Unit during the applicable Showing Month; provided, (i) Seller notifies Purchaser by the Notification Deadline applicable to that Showing Month of the amount of Product from the Unit that Purchaser may include in Purchaser’s Compliance Showings applicable to that month as a result of such Planned Outage, and (ii) such reduction is able to be reflected on the Supply Plansin accordance with the Tariff. (b) In the event Seller is unable to provide the Contract Quantity for any portion of a Showing Month because of a Planned Outage of a Unit, Seller has the option, but not the obligation, to provide Product for such portions of such Showing Month from Replacement Units, provided Seller provides and identifiessuch Replacement Unitsin accordance with Section2.3.
(c) Seller’s obligation to deliver the Contract Quantity for each day of each Showing Month may be reduced at Seller’s option in the event the AES Confirmation is terminated or AES fails to deliver such Contract Quantity under the AES Confirmation for any reason, including AES’s failure to obtain an Extension Order from the SWRCB; provided, however, that Seller’s right to reduce the Contract Quantity under this Section 2.2(c) is subject to Seller providing written notice to Purchaser of such modification no later than ten (10) calendar days before the Compliance Showings related to such Showing Month.
1 For example, contracts with Once-Through Cooling resources that terminate one year or less before the State Water Resources Control Board compliance deadline require an advice letter filing under CPUC Decision 12-04-046 Appendix A
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DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Joint CCA WSPP Standard RA Confirmation
4 2.3 Seller’s Option To Provide Alternate Capacity
If Seller is unable to provide the full Contract Quantity for a Showing Month for any reason, including, without limitation, as provided in Section 2.2, or Seller desires to provide some or all of the Contract Quantity for any Showing Month from a different generating unit other than the Unit, then Seller may, at no cost to Purchaser, provide Purchaser with replacement Product from one or more replacement units having the same Capacity Attributes of the Unit(s) originally identified in Appendix B, including the same Resource Category and, if applicable, the Flexible Capacity Category (each such unit, a “Replacement Unit”) in an amount such that the total amount of Product provided to Purchaser from the Unit and any Replacement Unit(s) for each Showing Month is not more than the Contract Quantity, provided that in each case:
(a) Seller shall notify Purchaser in writing of its intent to provide Alternate Capacity and shall identify the proposed Replacement Units from which such Alternate Capacity shall be provided no later than the Notification Deadline for Purchaser’s Compliance Showings related to such Showing Month;
(b) The proposed Replacement Units must (i) be accepted by the CAISO, and (ii) otherwise satisfy the requirements of this Agreement;
(c) Sellershall, orshall cause the SC to submit a Supply Plan for each Showing Month and, if applicable, annual filing, no later than the Notification Deadline for Purchaser’s Compliance Showings;
(d) If Seller does not comply with the requirements of Sections 2.3(a), (b) and (c) for the applicable Showing Month and, if applicable, annual filing, then any such Replacement Units shall not be deemed a Replacement Unit for purposes of this Confirmation for that Showing Month and Seller shall not receive payment for such Product; and
(e) The designation of any Replacement Unit(s) by Seller shall be subject to Purchaser’s prior written approval, which shall not be unreasonably withheld.
Once Seller has identified in writing any Replacement Units that meet the requirements of this Section 2.3 and Purchaser has approved such Replacement Units as consistent with this Confirmation, then any such Replacement Units shall be deemed a Unit for purposes of this Confirmation for that Showing Month. Purchaser’s approval of a Replacement Unit as to a given Showing Month shall not be construed as approval of such Replacement Unit for any subsequent Showing Month.
2.4 Planned Outages
As of the Confirmation Effective Date, Seller and Purchaser have agreed to all Planned Outages as specified in Appendix D (“Planned Outage Schedule”) for all relevant Showing Months for the following calendar year, or until the end of the Delivery Period, whichever is shorter. Seller may provide Purchaser with proposed changes to the Planned Outage Schedule from time to time.
Appendix A
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DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Joint CCA WSPP Standard RA Confirmation
5 Within ten (10) Business Days after Purchaser’s receipt of any Seller proposed changes, Purchaser shall notify Seller in writing of any reasonable requests for modifications to such Seller proposed changes, and Seller shall, to the extent consistent with Prudent Operating Practice, accommodate Purchaser’s requests regarding the timing of any Seller proposed changes to the Planned Outage Schedule.
2.5 Purchaser’s Remedies for Seller’s Failure to Deliver Expected Contract Quantity (a) If Seller fails to deliver any part of the Expected Contract Quantity as required herein for any Showing Month, Seller shall be liable for damages pursuant to Section 21.3 of the WSPP Agreement, without reference to the word “hourly” therein.
(b) Seller shall indemnify, defend and hold harmless Purchaser from any penalties, fines or costs, including Environmental Costs, assessed against Purchaser by the CPUC, CAISO or other Governmental Body resulting from Seller’s failure to deliver the Product or a Shown Unit’s SC’s failure to timely or accurately submit Supply Plans in accordance with the Tariff and this Confirmation. The Parties shall use commercially reasonable efforts to minimize such penalties, fines or costs; provided, that in no event will Purchaser be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties, fines or costs. If Seller fails to pay the foregoing penalties, fines or costs, or fails to reimburse Purchaser for those penalties, fines or costs, then, without prejudice to its other rights and remedies, Purchaser may setoff and recoup those penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation or the WSPP Agreement.
2.6 Purchaser’s Re-Sale of Product
(a) Purchaser may re-sell all or part of the Product; provided that any such re-sale must not increase Seller’s obligations hereunder other than as set forth in this Section
2.6(a). For any such a resale, the Resource Adequacy Plan of Purchaser as used herein will refer to the Resource Adequacy Plan of Subsequent Purchaser. Seller shall, or shall cause the Shown Unit’s SC, to follow Purchaser’s instructions with respect to providing such resold Product to Subsequent Purchasers, to the extent such instructions are consistent with Seller’s obligations under this Confirmation.
Seller shall, and shall cause the Shown Unit’s SC, to take all commercially reasonable actions and execute all documents or instruments reasonably necessary to allow such Subsequent Purchasers to use such resold Product in a manner consistent with Purchaser’s rights under this Confirmation. If Purchaser incurs any liability to a Subsequent Purchaser due to the failure of Seller or the Shown Unit’s SC to comply with this Confirmation, Seller will be liable to Purchaser for the amounts Seller would have owed Purchaser under this Confirmation if Purchaser had not resold the Product.
Appendix A
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6 (b) Purchaser shall notify Seller in writing of any resale of Product and the Subsequent Purchaser no later than two (2) Business Days before the Notification Deadline for each Showing Month for which Purchaser has resold the Product. Purchaser shall notify Seller of any subsequent changes or further resales no later than two (2) Business Days before the Notification Deadline for the Showing Month. (c) If CAISO or CPUC develops a centralized capacity market, Purchaser will have exclusive rights to direct the Seller or the Unit’s SC to offer, bid, or otherwise submit the Expected Contract Quantity of Product for re-sale in such market, Seller and the Unit’s SC shall comply with Purchaser’s direction and Purchaser shall retain and receive all revenues from such re-sale.
(d) Purchaser shall have the exclusive right to direct the Seller or the Unit’s SC to offer, bid, or otherwise submit the Expected Contract Quantity into the CAISO Competitive Solicitation Process (CSP) for CPM Capacity. Seller and the Unit’s SC shall comply with the Purchaser’s direction and, to the extent that the CAISO designates the Expected Contract Quantity as CPM Capacity, Purchaser shall be entitled to retain and receive the CPM Capacity Payment. Unless otherwise instructed by Purchaser, (i) Seller shall not, and shall cause the Unit’s SC to not, offer any portion of the Expected Contract Quantity to CAISO as CPM Capacity and (ii) if CAISO designates any portion of the Contract Capacity as CPM Capacity, then Seller shall, and shall cause the Unit’s SC to, promptly (and in any event within one (1) Business Day of the time Seller receives notification from CAISO) notify Purchaser of such designation, and if CAISO makes such a designation, Seller shall not, and shall cause the Unit’s SC to not, accept any such designation by CAISO unless and until Purchaser has agreed to accept such designation.
ARTICLE 3
PAYMENTS
3.1 Payment
Purchaser shall make a monthly payment to Seller for each Unit by the later of (i) ten (10) Calendar Days after Purchaser’s receipt of Seller’s invoice (which may be given upon first day of the Showing Month) and (ii) the twentieth (20th) of the Showing Month, or if the twentieth (20th) is not a Business Day the next following Business Day (“Monthly RA Capacity Payment”). The Monthly RA Capacity Payment shall equal the product of (a) the applicable Contract Price for that Showing Month, (b) the Expected Contract Quantity for the Showing Month and (c) 1,000, rounded to the nearest penny (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be adjusted to reflect any portion of Expected Contract Quantity for the Showing Month that was not delivered in accordance with Section 2.1 for such Showing Month.
Appendix A
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7 3.2 Allocation of Other Payments and Costs
(a) Seller will receive any revenues from, and must pay all costs charged by, CAISO or any other third party with respect to the Shown Unit(s) for (i) start-up, shutdown, and minimum load costs, (ii) capacity for ancillary services, (iii) energy sales, (iv) flexible ramping product, or (v) black start or reactive power services. Purchaser must promptly report receipt of any such revenues to Seller. Purchaser must pay to Seller any such amounts described in this Section 3.2(a) received by Purchaser or a Subsequent Purchaser. Without prejudice to its other rights and remedies, Seller may setoff and recoup any such amounts that are not paid to it pursuant to this Section 3.2(a) against any amounts owed to Purchaser under the WSPP Agreement. (b) Purchaser is to receive and retain all revenues associated with the Expected Contract Quantity of Product during the Delivery Period, including any capacity and availability revenues from the Capacity Procurement Mechanism, or its successor, RUC Availability Payments, or its successor, but excluding payments described in Section 3.2(a)(i)-(v) or 3.2(d). Seller shall promptly report receipt of any such revenues to Purchaser. Seller shall pay to Purchaser within thirty (30) days of receipt any such amounts received by Seller, or a Shown Unit’s SC, owner, or operator. Without prejudice to its other rights, Purchaser may set off and recoup any such amounts that are not paid to it against amounts owed to Seller under the WSPP Agreement.
(c) If CAISO designates any part of the Contract Quantity as Capacity Procurement Mechanism Capacity, then Seller shall, or shall cause the Shown Unit’s SC to, within one (1) Business Day of the time Seller receives notification from CAISO, notify Purchaser and not accept any such designation by CAISO unless and until Purchaser has agreed to accept such designation.
(d) Any Availability Incentive Payments or Non-Availability Charges are for Seller to receive and pay.
ARTICLE 4
OTHER PURCHASER AND SELLER COVENANTS
4.1 CAISO Requirements
Seller shall schedule or cause the Shown Unit’s SC to schedule or make available to CAISO the Expected Contract Quantity of the Product during the Delivery Period, in compliance with the Tariff, and perform all, or cause the Shown Unit’s SC, owner, or operator to perform all, obligations under applicable law and the Tariff relating to the Product. Purchaser is not liable for, and Seller shall indemnify and hold Purchaser harmless from, the failure of Seller or the Shown Unit’s SC, owner, or operator to comply with the Tariff, and for any penalties, fines or costs imposed on Seller or the Shown Unit’s SC, owner, or operator for noncompliance.
Appendix A
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8 4.2 Seller’s and Purchaser’s Duties to Take Actions to Allow Product Utilization Throughout the Delivery Period, Purchaser and Seller shall take all commercially reasonable actions and execute all documents or instruments reasonably necessary to ensure (a) Purchaser’s rights to the Expected Contract Quantity for the sole benefit of Purchaser or any Subsequent Purchaser and (b) that Purchaser may use the Expected Contract Quantity to meet its Compliance Obligations. Such commercially reasonable actions shall include, without limitation cooperating with and providing, and causing each Shown Unit’s SC, owner, or operator to cooperate with and provide, requested supporting documentation to the CAISO, the CPUC, or any other Governmental Body responsible for administering the applicable Compliance Obligations, including to demonstrate that the Expected Contract Quantity can be delivered to the CAISO controlled grid for the minimum hours required to satisfy the Compliance Obligations, as applicable, pursuant to the “deliverability” standards established by the CAISO or other Governmental Body of competent jurisdiction.
If necessary, the Parties further agree to negotiate in good faith to amend this Confirmation to conform this Transaction to subsequent clarifications, revisions, or decisions rendered by CAISO or an applicable Governmental Body to maintain the benefits of the Transaction.
4.3 Seller’s Representations and Warranties
Seller represents and warrants to Purchaser throughout the Delivery Period that:
(a) No part of the Contract Quantity during the Delivery Period has been committed by Seller to any third party to satisfy Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets;
(b) The Shown Unit(s) qualify to provide the Product under the Tariff, and the Shown Unit(s) and Seller are capable of delivering the Product; (c) the aggregation of all amounts of Capacity Attributes that Seller has sold, assigned, or transferred for the Shown Unit(s) during the Delivery Period does not exceed the Shown Unit’s Net Qualifying Capacity and, if applicable, the Effective Flexible Capacity for that Shown Unit;
(d) if applicable, Seller has notified either the Shown Unit’s SC or the entity from which Seller purchased the Product that Seller has transferred the Contract Quantity of Product for the Delivery Period to Purchaser; and
(e) Seller has notified or will notify the Shown Unit’s SC that Purchaser is entitled to the revenues set forth in Section 3.2(b), and such Shown Unit’s SC is obligated to promptly deliver those revenues to Purchaser, along with appropriate documentation supporting the amount of those revenues.
Appendix A
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9 4.4 Market Based Rate Authority
Upon Purchaser’s written request, Seller shall, in accordance with FERC Order No. 697, submit a letter of concurrence in support of any affirmative statement by Purchaser that this contractual arrangement does not transfer “ownership or control of generation capacity” from Seller to Purchaser as the term “ownership or control of generation capacity” is used in 18 CFR Section
35.42. Seller shall not, in filings, if any, made subject to Order Nos. 652 and 697, claim that this contractual arrangement conveys ownership or control of generation capacity from Seller to Purchaser.
ARTICLE 5
HOLD-BACK AND SUBSTITUTE CAPACITY
No later than three (3) Business Days before the before the relevant deadlines for the Compliance Showings applicable to that Showing Month, Purchaser may request in writing that Seller not list, or cause the Unit’s Scheduling Coordinator not to list, in the Unit’s Supply Plan a portion or all of the Contract Quantity for any portion of such Showing Month included in the Delivery Period (“Hold-Back Capacity”). Along with such request, Purchaser shall also provide updated Unit information reflecting the requested change. The updated Unit information shall be in the form of the Supply Plan. Following Purchaser’s request for Hold-Back Capacity, Purchaser may request, in writing, that Seller make the previously requested Hold-Back Capacity available for Purchaser’s use as Substitute Capacity within the respective Showing Month. Such request shall be received by Seller no later than eight (8) Business Days prior to the first day for which Purchaser seeks to use such Substitute Capacity as required by the CAISO. The portion of the Contract Quantity that is the subject of Purchaser’s request for Hold-Back Capacity shall be deemed Contract Quantity delivered consistent with Section 2.1 for purposes of calculating a Monthly RA Capacity Payment pursuant to Section 3.1 and calculating any amounts due pursuant to Sections 2.2. Seller shall, or shall cause the Unit’s Scheduling Coordinator to, comply with Purchaser’s request under this Article Five.
ARTICLE 6
ADDITIONAL WSPP AGREEMENT AMENDMENTS; GENERAL PROVISIONS
6.1 Termination Payment
For this Transaction, the following is inserted as a penultimate paragraph in Section 22.2(b) of the WSPP Agreement:
“If Purchaser is the Non-Defaulting Party and Purchaser reasonably expects to incur or be liable for any penalties, fines or costs from CAISO, or any Governmental Body, because Purchaser or a Subsequent Purchaser is not able to include the applicable Expected Contract Quantity in a Compliance Showing due to Seller’s Event of Default, then Purchaser may, in good faith, estimate the amount of those penalties, fines or costs and include the estimate in its determination of the Termination Payment, subject to accounting to Seller when those penalties, fines or costs are finally ascertained. If this accounting establishes that Purchaser’s estimate exceeds the actual amount of penalties, fines or costs, Purchaser must promptly remit to Seller the excess amount with interest in accordance with Appendix A
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10 Section 9.3 of the WSPP Agreement. The rights and obligations with respect to determining and paying any Termination Payment, and any dispute resolution provisions with respect thereto, survive the termination of this Transaction and continue until after those penalties, fines or costs are finally ascertained.”
6.2 Confidentiality
Notwithstanding Section 30.1 of the WSPP Agreement:
(a) (i) Purchaser may disclose information as necessary in order to support its Compliance Showings or otherwise show it has met its Compliance Obligations; (ii) Seller may disclose as necessary to a Shown Unit’s SC or as necessary for Supply Plans; (iii) each Party may disclose information as necessary to the independent evaluator or other administrator of any competitive solicitation process of Purchaser, which in turn may disclose such information as necessary to CAISO or any Governmental Body; and (iv) Purchaser may disclose information to any Subsequent Purchaser.
(b) Each Party to this Confirmation is subject to the requirements of the California Public Records Act (Government Code Section 6250 et seq.).
6.3 Dodd-Frank Act
The Parties intend this Transaction to be a “customary commercial arrangement” as described in Section II.A.1 of Commodity Futures Trading Commission, Proposed Guidance, Certain Natural Gas and Electric Power Contracts, 81 Fed. Reg. 20583 at 20586 (Apr. 8, 2016) and a “Forward Capacity Transaction” within the meaning of Commodity Futures Trading Commission, Final Order in Response to a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Regulatory Commission, 78 Fed. Reg. 19,880 (Apr. 2, 2013).
6.4 Change in Law
If any action by the CPUC, CAISO or any Governmental Body having jurisdiction, or any change in applicable law, occurring after the Confirmation Effective Date results in (i) material changes to Purchaser’s or Seller’s obligations with regard to the Products sold hereunder, (ii) has the effect of changing the transfer and sale procedure set forth in this Confirmation so that the performance of this Confirmation becomes impracticable, or (iii) changes the Resource Adequacy Requirements such that the Product can no longer be counted towards Purchaser’s Resource Adequacy Requirements (a “Change in Law”), the Parties shall work in good faith to revise this Confirmation so that the Parties can perform their obligations regarding the purchase and sale of the Product sold hereunder in order to maintain the original intent.
Appendix A
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11 6.5 Governing Law
Notwithstanding Section 24 of the WSPP Agreement, this Transaction 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.
6.6 Collateral
Notwithstanding any provision in the WSPP Agreement to the contrary, including Section 27, neither Party shall be required to post collateral or other security for this Transaction.
6.7 No Recourse to Members
The Parties are each organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) and are each a public entity separate from their constituent members. Each Party will solely be responsible for all of such Party’s debts, obligations and liabilities accruing and arising out of this Confirmation.
Each Party agrees that it shall have no rights and shall not make any claims, take any actions or assert any remedies against any of the other Party’s constituent members, or the officers, directors, advisors, contractors, consultants or employees of the other Party or the other Party’s constituent members, in connection with this Confirmation.
6.8 Other WSPP Agreement Changes
For this Transaction, the WSPP Agreement shall be amended as follows:
(a) Section 9.4 is deleted in its entirety and replaced with the following:
“In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party.
Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within two (2) Business Days of such resolution along with interest accrued at the Interest Rate from and including the due date to but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued at the Interest Rate from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving such overpayment.
Any dispute with respect to an invoice is waived unless the other Party is notified in writing within twelve (12) months after the invoice is rendered or any specific adjustment to the invoice is made. If an invoice is not rendered within twelve (12) months after the close of the month during which performance of a Transaction occurred, the right to payment for such performance is waived.” (b) Section 22.1 is modified by inserting the following new text at the end thereof:
Appendix A
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12 “(f) the failure of the Defaulting Party to pay its debts generally as they become due or the Defaulting Party’s admission in a writing that is unable to generally pay its debts as they become due;
(g) the institution, by the Defaulting Party, of a general assignment for the benefit of its creditors; or
(h) the application for, consent to, or acquiescence to, by the Defaulting Party, the appointment of a receiver, custodian, trustee, liquidator, or similar official for all or a substantial portion of its assets.”
(c) Section 22.2(b) is amended by inserting “and is continuing” after “Event of Default occurs” in the first line thereof and deleting the second sentence therein. (d) Section 22.3(c) is amended by deleting the third sentence thereof and replacing it with the following: “If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement or a Confirmation, the Termination Payment for all such Terminated Transactions shall be zero, notwithstanding any provision in this Section or Agreement to the contrary.”
(e) In Section 22.3(e), delete the entire provision (including subsections) and replace it with the following: “[Intentionally omitted]”
(f) In Section 22.3(f), delete the entire provision and replace it with the following:
“If the Defaulting Party disagrees with the calculation of the Termination Payment and the Parties cannot otherwise resolve their differences, and provided that the Defaulting Party has paid the undisputed part of the Termination Payment to the Non-Defaulting Party as provided under Section 22.3(c), and that any amounts disputed by the Defaulting Party are disputed in good faith, then the Defaulting Party may submit the calculation issue to Dispute Resolution pursuant to Section
34.”
(g) Section 28.1 is applicable and the Parties shall net monthly payments in accordance with Exhibit A of the WSPP. Both Parties intend for the netting provisions of Exhibit A to the WSPP Agreement to be effective on the Confirmation Effective Date.
(h) Section 30.1 is amended by inserting “or requested” after the word “required” in Section 30.1(4) and by adding the following at the end of the first sentence: “; or (8) to the Party’s and such Party’s affiliates’ lenders, counsel, accountants, advisors and agents who have a need to know such information and have agreed to keep such terms confidential”.
(i) Subsections 34.1 and 34.2 are deleted and replaced with the following:
“34.1 INFORMAL DISPUTE RESOLUTION
Appendix A
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13 IN THE EVENT OF ANY DISPUTE ARISING UNDER THIS
TRANSACTION, WITHIN TEN (10) DAYS FOLLOWING THE RECEIPT OF
A WRITTEN NOTICE FROM EITHER PARTY IDENTIFYING SUCH
DISPUTE, THE PARTIES SHALL MEET, NEGOTIATE AND ATTEMPT, IN
GOOD FAITH, TO RESOLVE THE DISPUTE QUICKLY, INFORMALLY AND INEXPENSIVELY. IF THE PARTIES ARE UNABLE TO RESOLVE A
DISPUTE ARISING HEREUNDER WITHIN THIRTY (30) DAYS AFTER
RECEIPT OF SUCH NOTICE, THEN EITHER PARTY MAY SEEK ANY AND
ALL REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY, SUBJECT TO THE LIMITATIONS SET FORTH IN THIS TRANSACTION.”
“34.2 EXCLUSIVE JURISDICTION
EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE STATE OR FEDERAL COURTS LOCATED IN SAN FRANCISCO,
CALIFORNIA, FOR ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY TRANSACTION, AND EXPRESSLY WAIVES ANY
OBJECTION IT MAY HAVE TO SUCH JURISDICTION OR THE
CONVENIENCE OF SUCH FORUM.”
(j) The phrase “arbitration or” is deleted from the first line of Section 34.4. (k) The following shall be inserted as a new Section 34.5:
“34.5 LIMITATION OF DAMAGES. EXCEPT AS OTHERWISE SPECIFIED
IN ANY CONFIRMATION, FOR BREACH OF ANY PROVISION OF THIS
CONFIRMATION AGREEMENT FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED, THE EXPRESS REMEDY OR
MEASURE OF DAMAGES PROVIDED IS THE SOLE AND EXCLUSIVE
REMEDY UNDER THIS AGREEMENT AND THE AGREEMENT FOR THE
BREACH, LIABILITY FOR THE BREACH IS LIMITED AS SET FORTH IN
THE PROVISION AND ALL OTHER REMEDIES FOR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. EXCEPT AS OTHERWISE SPECIFIED IN
ANY CONFIRMATION, IF NO EXPRESS REMEDY OR MEASURE OF
DAMAGES IS PROVIDED IN THIS AGREEMENT FOR A PARTICULAR
BREACH, LIABILITY FOR THE BREACH IS LIMITED TO DIRECT
DAMAGES ONLY, THE DIRECT DAMAGES ARE THE SOLE AND
EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR THE BREACH,
AND ALL OTHER REMEDIES FOR DAMAGES AT LAW OR IN EQUITY
ARE WAIVED. EXCEPT AS OTHERWISE SPECIFIED IN ANY
CONFIRMATION, NEITHER PARTY IS LIABLE FOR ANY OTHER TYPE OF
DAMAGE, INCLUDING INCIDENTAL, PUNITIVE, EXEMPLARY,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY NATURE (INCLUDING DAMAGES ASSOCIATED WITH LOST PROFITS, BUSINESS
INTERRUPTION AND LOSS OF GOODWILL) ARISING AT ANY TIME,
WHETHER IN TORT (INCLUDING THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF EITHER PARTY OR ANY RELATED PERSON),
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14 WARRANTY, STRICT LIABILITY, CONTRACT OR STATUTE, UNDER ANY INDEMNITY PROVISION, OR OTHERWISE.”
(l) Section 37 is amended by inserting the following in the beginning of the section:
“On the date of entering into this Confirmation,”.
(m) Section 41 “Witness” shall become Section 42 and the following “Standard of Review” Section shall be substituted in its place:
“The Parties agree as follows:
From the date of entering into a Transaction under this Agreement and throughout the term of such Transaction, the Parties each warrant and covenant as follows:
(i) Absent the agreement of all Parties to the proposed change, the standard of review for changes to any section of this Agreement (including all Transactions and/or Confirmations) specifying the rate(s) or other material economic terms and conditions agreed to by the Parties herein, whether proposed by a Party, a non-party or FERC acting sua sponte, shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956)( the “Mobile-Sierra” doctrine) and clarified in Morgan Stanley Capital Group, Inc. v.
Public Util. Dist. No. 1 of Snohomish 554 U.S. 527 (2008) and NRG Power Marketing LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165 (2010). (ii) The Parties, for themselves and their successors and assigns, (i) agree that this “public interest” standard shall apply to any proposed changes in any other documents, instruments or other agreements executed or entered into by the Parties in connection with this Agreement and (ii) hereby expressly and irrevocably waive any rights they can or may have to the application of any other standard of review, including the “just and reasonable” standard.”
6.9 Counterparts
This Confirmation may be signed in any number of counterparts with the same effect as if the signatures to the counterparts were upon a single instrument. The Parties may rely on electronic, or scanned signatures as originals under this Confirmation. Delivery of an executed signature page of this Confirmation by electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page.
6.10 Entire Agreement; No Oral Agreements or Modifications This Confirmation sets forth the terms of the Transaction into which the Parties have entered and shall constitute the entire agreement between the Parties relating to the contemplated purchase and sale of the Product. Notwithstanding any other provision of the Agreement, this Transaction may be confirmed only through a Documentary Writing executed by both Parties, and no amendment Appendix A
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15 or modification to this Transaction shall be enforceable except through a Documentary Writing executed by both Parties.
[Signatures appear on the following page.]
Appendix A
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SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California joint powers
authority
CENTRAL COAST COMMUNITY
ENERGY, a California joint powers
authority
By: By:
Girish Balachandran
Name: Name: Tom Habashi
Title: CEO Title: Chief Executive Officer
Approved as to form:
By:
Name: Robert M. Shaw
Title: COO and General Counsel
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bivis~ t,~J,v,IJJA, 5CA6489AC4C24C3 69C2537 7448849/ ...
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APPENDIX A
DEFINED TERMS
“AES” means AES Redondo Beach, LLC.
“AES Confirmation” means that certain WSPP Agreement Confirmation between Seller and AES, dated July 20, 2021.
“Alternate Capacity” means replacement Product which Seller has elected to provide to Purchaser in accordance with the terms of Section 2.3.
“CAISO” means the California ISO or the successor organization to the functions thereof. “Capacity Attributes” means attributes of the Shown Unit that may be counted toward Compliance Obligations, including: flexibility, dispatchability, physical location or point of electrical interconnection of the Shown Unit; Unit ability to generate at a given capacity level, provide ancillary services, or ramp up or down at a given rate; any current or future defined characteristics, certificates, tags, credits, or accounting constructs of the Shown Unit, howsoever entitled, identified from time to time by the CAISO or a Governmental Body having jurisdiction over Compliance Obligations.
“CIRA Tool” means the CAISO Customer Interface for Resource Adequacy. “Compliance Obligations” means, as applicable, RAR, Local RAR and FCR. “Compliance Showings” means the applicable LSE’s compliance with the resource adequacy requirements of the CPUC for an applicable Showing Month. “Contingent Firm RA Product” has the meaning set forth in Article 1 herein. “CPUC Decisions” means any currently effective or future decisions, resolutions, or rulings related to resource adequacy.
“CPUC Filing Guide” is the document issued annually by the CPUC which sets forth the guidelines, requirements and instructions for load serving entities to demonstrate compliance with the CPUC’s resource adequacy program.
“Effective Flexible Capacity” has the meaning given in CAISO’s FERC-approved Tariff. “Environmental Costs” means (i) costs incurred in connection with acquiring and maintaining all environmental permits and licenses for the Product, (ii) the Product’s compliance with all applicable environmental laws, rules, and regulations, including capital costs for pollution mitigation or installation of emissions control equipment required to permit or license the Product, (iii) all operating and maintenance costs for operation of pollution mitigation or control equipment, (iv) costs of permit maintenance fees and emission fees as applicable, (v) the costs of all emission reductions that have been authorized by a local air pollution control district or emissions trading Appendix A
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credits or units pursuant to the California Health & Safety Code, market based incentive programs such as the South Coast Air Quality Management District’s Regional Clean Air Incentives Market, authorizations to emit sulfur dioxide and oxides of nitrogen by the Environmental Protection Agency, and any costs related to greenhouse gas emissions required by any applicable environmental laws, rules, regulations, or permits to operate, and (vi) costs associated with the disposal, clean-up, decontamination or remediation, on or off site, of hazardous substances. “Expected Contract Quantity” means,with respect to any Showing Month of the Delivery Period, (a) for Firm RA Product, the Contract Quantity of Product, including the amount of Contract Quantity of Product that Seller has elected to provide Alternate Capacity, and (b) for Contingent Firm RA Product, the Contract Quantity of Product for such Showing Month, including the amount of Contract Quantity of Product that Seller has elected to provide Alternate Capacity, less any reductions to Contract Quantity consistent with Section 2.2 with respect to which Seller has not elected to provide Alternate Capacity.
“Extension Order” has the meaning set forth in the AES Confirmation. “FCR” means the flexible capacity requirements established for LSEs by the CPUC pursuant to the CPUC Decisions, the CAISO pursuant to the Tariff, or other Governmental Body having jurisdiction over Compliance Obligations and includes any non-binding advisory showing which an LSE is required to make with respect to flexible capacity. “FCR Attributes” means, with respect to a Shown Unit, any and all resource adequacy attributes of the Shown Unit, as may be identified from time to time by the CPUC, CAISO, or other Governmental Body having jurisdiction over Compliance Obligations, that can be counted toward an LSE’s FCR.
“Firm RA Product” has the meaning set forth in Article 1 herein. “Flexible Capacity Category” shall be as described in the annual CPUC Filing Guide, as such may be modified, amended, supplemented or updated from time to time. “Governmental Body” means any federal, state, local, municipal or other government; any governmental, regulatory or administrative agency, commission or other authority lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power; and any court or governmental tribunal. “Interest Rate” means, for any date, the lesser of (a) the per annum rate of interest equal to the prime lending rate as may from time to time be published in The Wall Street Journal under “Money Rates” on such day (or if not published on such day on the most recent preceding day on which published), plus two percent (2%) and (b) the maximum rate permitted by applicable law. “Local RAR” means the local resource adequacy requirements established for LSEs by the CPUC pursuant to the CPUC Decisions, by CAISO pursuant to the Tariff, or by any other Governmental Body having jurisdiction over Compliance Obligations.
Appendix A
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“Local RAR Attributes” means, with respect to a Shown Unit, any and all resource adequacy attributes of the Shown Unit, as may be identified from time to time by the CPUC, CAISO, or other Governmental Body having jurisdiction over Compliance Obligations, that can be counted toward an LSE’s Local RAR.
“LSE” means “Load Serving Entity” as such term is used in Section 40.9 of the Tariff. “MW” means megawatt.
“Net Qualifying Capacity” has the meaning given in CAISO’s FERC-approved Tariff. “Notification Deadline” is twenty (20) Business Days before the relevant deadlines for the corresponding Compliance Showings applicable to the relevant Showing Month. “Planned Outage” means, subject to and as further described in the CPUC Decisions, a CAISO-approved, planned or scheduled disconnection, separation or reduction in capacity of the Unit that is conducted for the purposes of carrying out routine repair or maintenance of such Unit, or for the purposes of new construction work for such Unit. “Product” means RAR Attributes, Local RAR Attributes and FCR Attributes, each for the Delivery Period, Unit, Contract Quantity, Contract Price and other specifications contained in Appendix B. “Prorated Percentage of Unit Factor” means the percentage, as specified in Appendix B, of the Unit NQC as of the Effective Date that is dedicated to Purchaser under this Transaction. “Prorated Percentage of Unit Flexible Factor” means the percentage, as specified in Appendix B, of the Unit EFC as of the Effective Date that is dedicated to Purchaser under this Transaction. “Prudent Operating Practice” means (a) the applicable practices, methods and acts required by or consistent with applicable laws and reliability criteria, and otherwise engaged in or approved by a significant portion of the electric power industry during the relevant time period in the Western United States, or (b) any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the electric power industry in the Western United States. “RAR Attributes” means, with respect to a Shown Unit, any and all resource adequacy attributes of the Shown Unit, as may be identified from time to time by the CPUC, CAISO, or other Governmental Body having jurisdiction over Compliance Obligations, that can be counted toward an LSE’s RAR.
“Replacement Unit” hasthemeaning setforth in Section 2.3.
Appendix A
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“Resource Adequacy Requirements” or “RAR” means the resource adequacy requirements established for LSEs by the CPUC pursuant to the CPUC Decisions, by CAISO pursuant to the Tariff, or by any other Governmental Body having jurisdiction over Compliance Obligations, not including Local RAR or FCR.
“Resource Category” shall be as described in the annual CPUC Filing Guide, as such may be modified, amended, supplemented or updated from time to time. “SC” means Scheduling Coordinator as defined in the Tariff. “Showing Month” meansthe calendar month of the Delivery Period that isthe subject of the related Compliance Showing.
“Shown Unit” means the Unit, or any Replacement Unit meeting the requirements of Section 2.3 of this Confirmation and specified by Seller in a Supply Plan. “Subsequent Purchaser” means the purchaser of Product from Purchaser in a re-sale of Product by Purchaser.
“Substitute Capacity” has the meaning set forth in the Tariff for “RA Substitute Capacity”. “Tariff” means the CAISO Tariff, including any current CAISO-published “Operating Procedures” and “Business Practice Manuals,” in each case as amended or supplemented from time to time.
“Unit” means the generation unit described in Appendix B. A Unit or Shown Unit may not be a coal-fired generating facility.
“Unit EFC” means the lesser of the Unit’s Effective Flexible Capacity as set by CAISO as of the Effective Date and that of the Unit on a subsequent date of determination. “Unit NQC” means the lesser of the Unit’s Net Qualifying Capacity as set by CAISO as of the Effective Date and that of the Unit on a subsequent date of determination.
Appendix A
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APPENDIX B
PRODUCT AND UNIT INFORMATION
Product:
RAR Local RAR Flexible Capacity
and all Capacity Attributes related to such Product.
Additional Product Information (fill in all that apply):
CAISO Zone: NP26
Resource Category (MCC Bucket): 4, 24/7 - N
CPUC Local Area (if applicable): Fresno
Flexible Capacity Category (if applicable): N/A
Delivery period:
Contract Quantity and Contract Price:
Showing Month
and Year
RAR Contract
Quantity (MW)
Contract Price
($/kW-mo)
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Unit 1
Unit Specific Information
Resource Name SLATE_2
Physical Location Kings County, CA
CAISO Resource ID SLATE_2_SLASR2
SCID of Resource ZEUS
Unit NQC by month (e.g., Jan=50,Feb=65): 56.77
Unit EFC by month (e.g., Jan=30, Feb=50) N/A
Resource Type (e.g., gas, hydro, solar, etc.) Hybrid Solar & BESS Minimum Qualified Flexible Capacity
Category (Flex 1, 2 or 3)
N/A
TAC Area (e.g., PG&E, SCE) PG&E
Prorated Percentage of Unit Factor
Prorated Percentage of Unit Flexible Factor
Capacity Area (CAISO System, Fresno,
Sierra, Kern, LA Basin, Bay Area,
Stockton, Big Creek-Ventura, NCNB, San
Diego-IV or Humboldt)
Fresno
Resource Category as defined by the CPUC
(DR, 1, 2, 3, 4)
4 Available 24/7? N
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DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Appendix C - 1
APPENDIX C
RESERVED
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DocuSign DocuSign Envelope Envelope ID: E900299A 40BCBF11--18D2 2129-4653DE5-859D -8A76--2EB34CD85E73 A0F764CC6609 Appendix D - 1
APPENDIX D
PLANNED OUTAGE SCHEDULE
Unit Name CAISO
Resource ID *
Outage (MW)
SLIC
Outage
Start Date
SLIC
Outage
End Date
N/A N/A N/A N/A N/A
Appendix A
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 1 WSPP CONFIRMATION
CARBON FREE ENERGY
This confirmation (“Confirmation”) confirms the transaction between Silicon Valley Clean Energy Authority, a California joint powers authority (“Purchaser”) and Central Coast Community Energy, a California joint powers authority (“Seller” and, together with Purchaser, the “Parties” and each individually, a “Party”) dated as of December 12, 2021 (the “Effective Date”), by which Seller agrees to sell and deliver, and Purchaser agrees to purchase and receive, the Product (the “Transaction”). This Transaction is governed by the terms of the WSPP Agreement, effective as of August 12, 2021, together with any and all exhibits, schedules or supplements thereto or incorporated therein by reference (the “Master Agreement”) and as amended and supplemented by this Confirmation; provided that, in the case of any conflict between this Confirmation and the Master Agreement, this Confirmation will govern. The definitions and provisions contained in the Master Agreement are incorporated into this Confirmation, except as otherwise modified herein.
This Confirmation and the Master Agreement, including any schedules, appendices, exhibits or amendments thereto, shall collectively be referred to as the “Agreement” and will constitute a single agreement between the Parties.
Product: “Product” means Carbon Free Energy. “Carbon Free Energy” means energy generated the Resource Pools as selected by Purchaser below.
Large Hydroelectric; and/or
Nuclear
The list of Resources in each Resource Pool is set forth in Exhibit A.
Carbon Free Energy does not include any California RPS-eligible Energy generated from any Resource in the Resource Pool, nor does it include any California RPS-eligible attributes or any other current or future attributes associated with the Product.
Contract Quantity:
Contract Price:
Payment: For each month during the Delivery Period, (a) Purchaser will pay Seller an amount equal to the Contract Quantity delivered in such month multiplied by the Contract Price and (b) Seller’s designee shall cause the Energy associated with the Product to be delivered to the CAISO at the Delivery Point and shall be entitled to retain all CAISO revenues associated with such Energy.
Seller shall invoice Purchaser on or before the 20th day of each calendar month in an amount equal to the quantity of Product delivered to Purchaser during the previous month multiplied by the Contract Price.
With each invoice, Seller shall provide documentation to verify delivery Appendix A 3CE
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 2 of invoiced amounts of Product.
Within ten (10) Business Days after the delivery of the invoice or the 20th day of each calendar month, whichever is later, Purchaser shall pay Seller the amount invoiced.
Resource Pool: “Resource Pool” means, collectively, one or more of the Resources specified in Exhibit A for the Large Hydroelectric Resource Pool.
Delivery Period:
Delivery Point: “Delivery Point” means where Sellershall deliver to, and Purchasershall take possession of, the Product, which shall be NP 15.
Attestation: Seller shall provide to Purchaser a report confirming the monthly Carbon Free Energy from the Resources within the Resource Pools in a final report following the Delivery Period (the “Final Report”). The Final Report will include the Product delivered from Seller to Purchaser from each Resource from the selected Resource Pool(s) as indicated above.
Seller will provide Purchaser with the Final Report promptly once the information is received from PG&E.
Scheduling: Throughout the Delivery Period, Seller shall cause to be delivered, and Purchasershall receive the Product in accordance with the Confirmation.
PG&E or its designee will act as Scheduling Coordinator to deliver the Product in each hour to the CAISO at the Delivery Point.
Title and Reporting
Rights:
Title to the Product shall be deemed to pass from Seller to Purchaser at the Delivery Point.
Seller
Representations
and Warranties:
Seller represents and warrants the following:
(a) that it has the contractual rights to sell all rights, title, and interest in the Product to be delivered hereunder;
(b) it has not sold the Product required to be delivered hereunder, or any attribute thereof, to any other person or entity;
(c) it will not substitute or purchase any Product from any generating resource other than from the Resources in the Resource Pool for delivery hereunder; and
(d) it will not include the Product in any of its own Power Content Label (PCL) reporting except to allow it to report the Product as a “sale” to Purchaser.
(e) To the extent reasonably available to Seller from PG&E, Seller will provide all reasonable information to Purchaser necessary for Purchaser to timely comply with periodic compliance Appendix A
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 3 reporting requirements as set forth herein and as otherwise required by applicable law with respect to this Product, including documents that Purchaser is required to maintain or provide to the California Air Resources Board (CARB) in accordance with Assembly Bill (AB) 32. To the extent reasonably available to Seller from PG&E, Seller shall maintain adequate records to reasonably assist Purchaser in meeting any reporting,
verification, transfer, registration, or retirement requirements of a Governmental Authority associated with the Confirmation.
Seller makes no representation, warranty or covenant with respect to the following:
(a) Characterization, qualities, presence, or non-presence of any greenhouse gas (GHG) emissions of the Resources in the
Resource Pools, including whether Resources in the Resource Pools emit GHGs, the type of GHGs, the carbon intensity of the Resources or Resource Pool or anything related to the
environmental attributes of the Resources within the Resource Pools.
(b) The ability of Purchaser to use the Product for any compliance, regulatory, or reporting purpose.
Limitation of
Liability:
Notwithstanding any provision to the contrary in the Master Agreement or this Confirmation, Seller shall have no liability to Purchaser for the failure to deliver any quantities of Product that were not delivered to Seller by PG&E.
Confidentiality: Each Party recognizes that this Confirmation is subject to the requirements of the California Public Records Act (Government Code Section 6250 et seq.). Each Party (a “Receiving Party”) acknowledges that the other Party (a “Disclosing Party”) may submit information to the Receiving Party that the Disclosing Party considers confidential, proprietary, or trade secret information pursuant to the Uniform Trade Secrets Act (Cal. Civ. Code section 3426 et seq.), or otherwise protected from disclosure pursuant to an exemption to the California Public Records Act (Government Code Sections 6254 and 6255). In order to designate information as confidential, the Disclosing Party must clearly stamp and identify the specific portion of the material designated with the word “Confidential”. The Parties agree not to over-designate material as confidential. Over-designation would include stamping whole agreements, entire pages or series of pages as confidential that clearly contain information that is not confidential. Upon request or demand of any third person or entity not a party to this Agreement (“Requestor”) for production, inspection and/or copying of information designated by a Party as confidential information (such designated information, the “Confidential Information”), the Receiving Party shall Appendix A
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 4 notify the Disclosing Party as soon as practical that such request has been made. The Disclosing Party shall be solely responsible for taking whatever legal steps are necessary to protect information deemed by it to be Confidential Information and to prevent release of information to the Requestor by the Receiving Party. If the Disclosing Party takes no such action after receiving the foregoing notice from the Receiving Party, the Receiving Party shall be permitted to comply with the Requestor’s demand and is not required to defend against it.
Governing Law: Notwithstanding Section 24 of the Master Agreement, this Transaction 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.
Collateral/Credit
Requirements:
Notwithstanding any provision in the Master Agreement to the contrary, including Section 27, neither Party shall be required to post collateral or other security for this Transaction.
No Recourse to
Members:
The Parties are each organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) and are each a public entity separate from their constituent members. Each Party will solely be responsible for all of its debts, obligations and liabilities accruing and arising out of this Confirmation. Each Party agrees that it shall have no rights and shall not make any claims, take any actions or assert any remedies against any of the other Party’s constituent members, or the officers, directors, advisors, contractors, consultants or employees of the other Party or the other Party’s constituent members, in connection with this Confirmation.
Notices: Notwithstanding Section 12.1 of the Master Agreement, notices under this Confirmation shall be in writing and shall be deemed properly served, given or made if delivered by hand delivery, United States mail, overnight courier service, or email. The following names and addresses shall be used for notices and either Party may update its notice information by providing notice to the other Party in accordance with this paragraph.
Appendix A
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 5 Counterparts: This Confirmation may be signed in any number of counterparts with the same effect as if the signatures to the counterparts were upon a single instrument. The Parties may rely on electronic or scanned signatures as originals under this Confirmation. Delivery of an executed signature page of this Confirmation by electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page.
Entire Agreement;
No Oral
Agreements or
Modifications:
This Confirmation sets forth the terms of the Transaction into which the Parties have entered and shall constitute the entire agreement between the Parties relating to the contemplated purchase and sale of the Product. Notwithstanding any other provision of the Agreement, this Transaction may be confirmed only through a Documentary Writing executed by both Parties, and no amendment or modification to this Transaction shall be enforceable except through a Documentary Writing executed by both Parties.
Definitions: Any capitalized terms used in this Confirmation but not otherwise defined below shall have the meaning ascribed to such term in the Master Agreement:
“CAISO” means the California Independent System Operator Corporation or the successor organization to the functions thereof. “California RPS” or “California Renewables Portfolio Standard” means the California renewables portfolio standard, as set forth in Cal. Pub.
Util. Code §§ 399.11 et seq. and Cal. Pub. Res. Code §§ 25740-25751, and as administered by the CEC as set forth in the CEC RPS Eligibility Guidebook (9th Ed.), as may be subsequently modified by the CEC, and the California Public Utilities Commission (“CPUC”) as set forth in CPUC Decision (“D”) 08-08-028, D.08-04-009, D.11-01-025, D.11-12- 020, D.11-12-052, D.12-06-038 and D.14-12-023, and as may be modified by subsequent decision of the CPUC or by subsequent legislation, and regulations promulgated with respect thereto. “CEC” means the California Energy Commission.
“CPUC” means the California Public Utilities Commission. “Energy” means electrical energy, measured in MWh.
“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, or the CAISO or any other transmission authority, having or asserting jurisdiction over a Party or the Agreement.
Appendix A
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 6 “Large Hydroelectric” hasthe meaning set forth in Cal. Code Regs., Title 20, § 1391(k).
“MW” means megawatt.
“MWh” means megawatt-hour.
“NP 15” means the transmission area north of Path 15.
“Nuclear” means the Diablo Canyon Power Plant.
“PG&E” means the Pacific Gas and Electric Company, its successors and assigns.
“Power Content Label” has the meaning set forth in Cal. Code Regs., Title 20, § 1393(a)(3).
“Resource” means generation units contracted for through power purchase agreements by Seller with PG&E.
“Uncontrollable Force” shall have the meaning set forth in the Master Agreement.
[Signatures appear on the following page.]
Appendix A
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California joint powers
authority
Sign:
CENTRAL COAST COMMUNITY
ENERGY, a California joint powers
authority
Sign:
Girish Balachandran
Print: Print: Tom Habashi
Title: CEO Title: Chief Executive Officer
Approved as to form:
Sign:
Print: Robert M. Shaw
Title: COO and General Counsel
Appendix A 3CE
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DocuSign DocuSign Envelope Envelope ID: 6849410E 56AEBF16--D184 741D--4907 45E4-9E68 -8653--EDF383A039CB 2A22F66B5ED6 Exhibit A-1
EXHIBIT A
List of Resources by Resource Pool
Resource Pool: Large Hydroelectric
Resource Name CAISO Resource ID EIA IDs
Balch #1 PH BALCHS_7_UNIT 1 217
Balch #2 PH BALCHS_7_UNIT 2
BALCHS_7_UNIT 3
218
Belden BELDEN_7_UNIT 1 219
Bucks Creek BUCKCK_7_PL1X2 220
Butt Valley BUTTVL_7_UNIT 1 221
Caribou 1 CARBOU_7_UNIT 1
CARBOU_7_PL2X3
222
Caribou 2 CARBOU_7_PL4X5 223
Cresta CRESTA_7_PL1X2 231
Drum #1 DRUM_7_PL1X2
DRUM_7_PL3X4
235
Drum #2 DRUM_7_UNIT 5 236
Electra ELECTR_7_PL1X3 239
Haas HAASPH_7_PL1X2 240
James B Black BLACK_7_UNIT 1
BLACK_7_UNIT 2
249
Kerckhoff #2 PH KERKH2_7_UNIT 1 682
Kings River KINGRV_7_UNIT 1 254
Pit 1 PIT1_7_UNIT 1
PIT1_7_UNIT 2
265
Pit 3 PIT3_7_PL1X3 266
Pit 4 PIT4_7_PL1X2 267
Pit 5 PIT5_7_PL1X2
PIT5_7_PL3X4
268
Pit 6 PIT6_7_UNIT 1
PIT6_7_UNIT 2
269
Pit 7 PIT7_7_UNIT 1
PIT7_7_UNIT 2
270
Poe POEPH_7_UNIT 1
POEPH_7_UNIT 2
272
Rock Creek RCKCRK_7_UNIT 1
RCKCRK_7_UNIT 2
275
Salt Springs SALTSP_7_UNITS 279
Stanislaus STANIS_7_UNIT 1 285
Tiger Creek TIGRCK_7_UNITS 287
NID-Chicago Park CHICPK_7_UNIT 1 412
Resource Pool: Nuclear
Appendix A
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Resource Name CAISO Resource ID EIA IDs
Diablo Canyon Power Plant
Unit 1
DIABLO_7_UNIT 1 6099
Diablo Canyon Power Plan
Unit 2
DIABLO_7_UNIT 2 6099
Appendix A
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1 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
EEI MASTER POWER PURCHASE AND SALE AGREEMENT
SHORT TERM SALES CONFIRMATION
BETWEEN
PACIFIC GAS AND ELECTRIC COMPANY
AND
SILICON VALLEY CLEAN ENERGY AUTHORITY, A CALIFORNIA JOINT POWERS
AUTHORITY
This confirmation ( Confirmation
Electric Company, a California corporation, but limited for all purposes hereunder to its electric procurement and electric fuels functions ( Sel , and Silicon Valley Clean Energy Authority, a California Joint Powers Authority Party and together the Parties , dated 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 Master Power Purchase and Sale Agreement, together with the Cover Sheet, dated as of 10/25/2017 (collectively, ), 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 . The Master Agreement and the Collateral Annex shall be referred to collectively The EEI Agreement and this 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. [
-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: Silicon Valley Clean Energy
Authority, a California Joint Powers
Authority
Contact
Information:
Name: Pacific Gas and Electric
Company, limited for all purposes
hereunder to its electric procurement and
electric fuels functions
Seller Party B
Name: Silicon Valley Clean Energy
Authority, a California Joint Powers
Authority
Buyer
Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94 " ") confirms the transaction ("Transaction") between Pacific Gas and " ler" or "Party B")
("Buyer" or "Party A"), each individually a " "
" "
with the same force and effect as if set forth herein, all of the terms and provisions of the Parties' EEi "Master Agreement"
herein as the "Collateral Annex"
herein as the "EEi Agreement".
Confirmation shall be referred to collectively herein as the "Agreement." Standard contract terms and conditions shown in shaded text are those that "may not be imodified" per CPUC Decisions ("D.' 07
(" " or "Party A")
(" "or" ")
2 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 3 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
ARTICLE 1
COMMERCIAL TERMS
Seller: PACIFIC GAS AND ELECTRIC
COMPANY, limited for all purposes
hereunder to its electric procurement
and electric fuels functions
Buyer: SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California Joint Powers
Authority
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 from one or more facilities, listed in Appendix A to this Confirmation or identified pursuant to Section 8.2 herein, each meeting Seller shall have sole discretion throughout the Term to designate and re-designate, as applicable, the Project by selecting one or more of the facilities from Appendix A or pursuant to Section 8.2 herein.
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: , with respect to an applicable year, shall be equal to those volumes of Green Attributes specified for that applicable year in the Delivery Term Quantity Schedule set forth below and shall be conveyed during the Green Attributes Delivery Period to Buyer as provided herein. (b) For Electric Energy , with respect to an applicable year, shall be equal to those volumes of Electric Energy produced by the Project specified for that applicable year in the Delivery Term Quantity Schedule set forth below and shall be delivered during the Energy Delivery Period to Buyer as provided herein.
Delivery Term Quantity Schedule
Year Green Attributes (MWh) Electric Energy (MWh)
Energy Price: The Energy Price shall mean the Index Price for each MWh of Delivered Energy delivered to Buyer under this Agreement.
Green
Attributes Price:
The Green Attributes Price shall mean, with respect to an applicable year, that price in dollars for each MWh of Green Attributes conveyed to Buyer under this Agreement, as specified in the table below.
Year Green Attributes Price ($)
Term of
Transaction:
Except for the obligations in Sections 4 (CPUC Filing and Approval) and 9 (Confidentiality) which shall be effective and binding as of the Execution Date, the term of the Transaction shall commence upon the Effective Date and shall continue until the end of the Delivery Term, provided that this Agreement shall thereafter remain in effect as to Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 the requirements set forth in 6.1 (collectively, the "Project"). "Total Quantity"
"Energy Quantity"
4 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
those terms and conditions that expressly survive termination or expiration of the .
This Confirmation, and the Transaction and Term hereunder, shall terminate early in the event of a failure to satisfy the Green Attributes Condition Precedent defined below or as otherwise provided in the Agreement.
Termination because of a failure to satisfy the Green Attributes Condition Precedent shall terminate all of the obligations under the Confirmation as of the Transaction Termination Date as provided in Section 4.2,
obligations under Article 9 herein.
Credit
Requirements:
(a)
shall be governed by the EEI Agreement.
(b) the Green Attributes portion of the
Product shall be governed by the EEI Agreement.
Delivery Term: The Delivery Term shall consist of both the Energy Delivery Period and the Green Attributes Delivery Period.
Energy Delivery
Period:
Green
Attributes
Delivery Period:
Subject to the satisfaction, or waiver in writing by both Parties, of the Green Attributes Condition Precedent, the Green Attributes Delivery Period shall commence on the first day that Seller conveys Green Attributes to Buyer and shall end on that date upon which the amount of Green Attributes conveyed to Buyer satisfies the Total Quantity.
Seller shall convey Green Attributes to Buyer in the form of WREGIS Certificates. Seller an amount required
to satisfy the Total Quantity.
Delivery Point:
NP15, SP15, and/or ZP26. Buyer shall take title and risk of loss of the Product from the Project at the applicable Delivery Point selected by Seller.
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.
Condition
Precedent to the
Green
Attributes
Obligations:
Notwithstanding any other provision of this Confirmation to the contrary, all of the obligatio
herein, are conditioned upon
urance from
Approval (defined below) (collectively,
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 Agreement ("Term")
Parties'
except for the Parties' confidentiality
This Confirmation's credit requirements for the Electric Energy portion of the Product This Confirmation's credit requirements for
" "
" "
shall transfer WREGIS Certificates into Buyer's WREGIS account in The "Delivery Point" shall be any of the following as selected by Seller in its discretion:
Parties' ns except for the Parties' confidentiality obligations under Article 9 (a) Seller's receipt, or the Parties' written waiver, of CPUC Approval as defined below ; and (b) Seller's receipt of the Performance Ass Buyer no later than five (5) Business Days following Seller's Notice to Buyer of CPUC "Green Attributes Condition Precedent").
5 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
ARTICLE 2
DEFINITIONS
2.1 has the meaning set forth in the Tariff.
2.2 2.3
(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 ll 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 t 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 Corporation or any
successor entity performing similar functions.
2.6 Tariff.
2.7 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 2.9 California Energy Commission or its successor agency.
2.10 y Price plus the Green Attributes Price.
2.11 means the California Public Utilities Commission or its successor entity.
2.12 -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.
Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94 "Balancing Authority"
"Balancing Authority Area" has the meaning set forth in the Tariff. "Broker or Index Quotes" means quotations solicited or obtained in good faith from "Business Day" means a
he relevant Party's principal
"CAISO" means the California Independent System Operator "CAISO Grid" has the same meaning as "CAISO Controlled Grid" as defined in the "California Renewables Portfolio Standard" or "RPS" means the renewable energy "CARB" means the California Air Resources Board or its successor agency. "CEC" means the
"Contract Price" means the Energ
"CPUC"
"CPUC Approval" means a final and non
6 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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 Seller
2.13 (a) the rating then assigned to such
-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 ratings are not equivalent, the lower of the two ratings shall determine the determine the Credit Rating.
2.14 Energy from the Project that is delivered by Seller to Buyer at the Delivery Point.
2.15 -phase, 60-cycle alternating current electric energy measured in MWh and net of auxiliary loads and station electrical uses (unless otherwise specified).
2.16 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 Agreement.
2.18 2.19 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 b) to use or resell the Product purchased hereunder; (c) the loss or failure of unless caused by a force majeure event at the Project; or (d) 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
defined under 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.
Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94 " "
"Credit Rating" means, with respect to any entity,
entity's unsecured, senior long
to "Buyer" shall mean
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
Credit Rating. If the entity is rated by either S&P or Moody's, but not both, then the available rating shall "Delivered Energy" means the Electric
"Electric Energy" means three
"Eligible Renewable Energy Resource" or "ERR" has the meaning set forth in California "Execution Date" means the latest signature date found on the signature page of this "Effective Date" is the same as the Execution Date.
"Force Majeure"
Buyer's inability economically
Seller's supply
) the loss of Buyer's markets; (
Seller's ability to sell the
due to "force majeure" or "uncontrollable force" or a similar term as Transmission Provider's tariff; provided, however, that existence of the 7 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
2.20 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.
2.21 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 (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by Law, to contribute to the actual or climate by trapping heat in the atmosphere1; (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, 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-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.
2.22 means the Trading Hub price (as defined in the 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.
2.23 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 in Section 2.12 and Sections 6.1(a), 6.1(b) and 8.3(b)
2.24 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 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.
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 "Governmental Authority" means
"Green Attributes" means any and all credits, benefits, emissions reductions, offsets, and potential threat of altering the Earth's
and to a federal or state agency or any other party at the Green Tag Purchaser's discretion, and include related subsidies or "tipping fees" that
"Index Price"
"Law" means any statute, law, treaty, rule, regulation, CEC guidance document, purposes of the definition of "CPUC Approval"
in this Confirmation, the term "law" shall have the meaning set forth in this definition. "Letter of Credit"
8 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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 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.
2.25 d
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 2.28, - 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.
2.26 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.
2.27 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: -
-, with a stable
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 -
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 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 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 Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 the Secured Party. In case of a conflict of this definition with any other definition of "Letter of Credit" "Market Quotation Average Price" means the arithmetic mean of the quotations solicite "Reference Market Maker" means a leading
"Notice" means written communications by a Party to be delivered by hand delivery, "Qualified Institution"
(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 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 "Real Time Market" has the meaning set forth in the Tariff and shall include any market "Renewable Energy Credit" or "REC" has the meaning set forth in California Public "Replacement Price"
9 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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 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 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 ch 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 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 the preamble above.
2.34 any successor renewable energy tracking program.
2.35 WREGIS Certificate as defined by WREGIS in
the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
2.36 WREGIS.
ARTICLE 3
CONVEYANCE OF ELECTRIC ENERGY AND GREEN ATTRIBUTES
3.1 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.
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 market positions to minimize Seller's
"Sales Price"
Buyer's liability. For purposes of this definition, Seller shall be considered to have resold su "Tariff'
"Transactions" as used in the EEi Agreement shall mean the "Transaction" as defined in "WREGIS" means the Western Renewable Energy Generation Information System or " Certificate" has the same meaning as " "
"WREGIS Operating Rules" means the operating rules and requirements adopted by Seller's
10 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
3.2 es.
(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 WREGIS account of the WREGIS Certificates for the Green Attributes for the applicable Calculation herein. Seller shall transfer such WREGIS Certificates in an amount equivalent to the Total Quantity to transfer from Seller to Buyer.
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
Any termination elected and noticed in accordance with this Section 4.2 shall terminate all of the rights and obligations under the Agreement as of the Transaction Termination Date.
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 Seller's Conveyance of Green Attribut
deposit into Seller's
Period and (ii) Buyer's payment of the Monthly Cash Settlement Amount in accordance with Article 5 Buyer's WREGIS account such that all right, title and interest in and to the WREGIS Certificates shall after its provision. The effective date of the Notice shall constitute the "Transaction Termination Date".
Parties'
11 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
4.3 Effect of Termination.
Any termination of the Agreement properly exercised by a Party under Section 4.2 shall be without liability or obligation, except for obligations under Article 9 herein and in the EEI Agreement and shall have no effect on the status of the EEI Agreement.
ARTICLE 5
COMPENSATION
5.1 Calculation Period.
The ach 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).
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 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. This provision shall survive termination or expiration of the Agreement for all amounts due prior to such termination or expiration.
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 receipt by e-mail of such invoice in PDF format from Seller. Invoices to Buyer shall be sent by email to set forth in the Notices section of this Agreement.
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 the Parties' confidentiality
"Calculation Period" shall be e
" "
of Buyer's
Buyer's
12 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 s, 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 defined in Public Utilities Code Section 3
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 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)
preceding paragraph means this Confirmation.
(ii) diately
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) 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;
(iv) Seller shall not substitute or purchase any Product from any generating resource other than the Project or the market for delivery hereunder; and (v) 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 Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94 Seller's Representation
qualifies and is certified by the CEC as an Eligible Renewable Energy Resource ("ERR") as such term is
99.12 or Section 399.16; and (ii) the Project's output delivered For the avoidance of doubt, the term "contract" as used in the immediately For further clarity, the phrase "first delivery" as used in the imme 13 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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 (i) or (ii):
(i) 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
(ii) The Project has an agreement to dynamically transfer electricity to a California Balancing Authority.
(f) If and to the extent that the Product sold by Seller is a resale of part or all of a PPA between Seller and one or more third parties, Seller represents, warrants and covenants that the resale complies with the following conditions in (i) through (iv) below as of the Effective 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 Effective Date that causes the representations, warranties, and/or covenants in Section 6.1 that continue beyond the Effective 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 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 Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 "Commercially reasonable efforts" as set forth in this Article 6 14 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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 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 ) sufficient to demonstrate
that the Product has been conveyed and delivered to Buyer.
8.2 Facility Identification.
If Seller determines that any Product to be delivered in a calendar month shall be from a facility or facilities other than those in Appendix A, then Seller shall provide Notice to Buyer identifying the facility or facilities that constitute the Project within three (3) Business Days prior to the delivery of Electric Energy from such facility or facilities in such calendar month.
8.3 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 8.3 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 Sectio
meaning ascribed to them in the preamble of this Confirmation .
Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94 meter approved by the Project's governing Balancing Authority n 8.3(b) above, the words "party" and "parties" shall have the , and the word "agreement" shall mean the
term "Agreement" as defined in the preamble of this Confirmation 15 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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, without prior Notice or consent of the other Party:
(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 The Parties agree that the Agreement may be shared on a confidential basis, without prior Notice or consent of the other Party, .
9.3 Except as set forth in this Article 9 and the EEI Agreement, each Party shall provide prior Notice to the other Party of disclosure of confidential information of such other Party for purposes of compliance with any applicable regulation, rule, or order of the CPUC, Federal Energy Regulatory Commission, CEC, or other Governmental Authorities.
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 with the Parties' counsel and advisors
16 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
ACKNOWLEDGED AND AGREED TO
REPRESENTATIVE OR OFFICER:
PACIFIC GAS AND ELECTRIC COMPANY,
a California corporation, limited for all
purposes hereunder to its electric procurement
and electric fuels functions.
SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California Joint Powers
Authority, by its duly authorized officers
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94
BY EACH PARTY'S DULY AUTHORIZED
Don Howerton Girish Balachandran
Director, Structured Energy Transactions CEO
2/14/2022
2/9/2022
PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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
Kansas South Solar PV Lemoore, CA 61264A CAISO
Westlands Solar Farms Solar PV Huron, CA 61755A CAISO
Orion Solar Solar PV
Unincorporated
Kern County,
CA
61570A CAISO
Kent South Solar PV Lemoore, CA 61262A CAISO
Algonquin SKIC 20
Solar Solar PV Taft, CA 61558A CAISO
CED Corcoran Solar 3,
LLC Solar PV Corcoran, CA 62783A CAISO
Westside Solar, LLC Solar PV
Unincorporated
Fresno County,
CA
61185A CAISO
Aspiration Solar G LLC Solar PV Tranquility, CA 61486A CAISO Bayshore Solar A Solar PV Lancaster, CA 63133A CAISO
Bayshore Solar B Solar PV Lancaster, CA 63134A CAISO
Bayshore Solar C Solar PV Lancaster, CA 63135A CAISO
West Antelope Solar PV Lancaster, CA 61850A CAISO
Western Antelope Blue
Sky Ranch A Solar PV Lancaster, CA 61517A CAISO
Wind Resource I Wind Tehachapi, CA 61467A CAISO
SPS White River West Solar PV Alpaugh, CA 62045A CAISO
Wind Resource II Wind Tehachapi, CA 61468A CAISO
Columbia Solar
Energy, LLC Solar PV Pittsburg, CA 62051A CAISO
Alamo Solar, LLC Solar PV Oro Grande,
CA 61453A CAISO
Corcoran Solar LLC Solar PV Corcoran, CA 62285A CAISO
Old River One LLC Solar PV Bakersfield,
CA 60853A CAISO
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
Shafter Solar Solar PV Shafter, CA 62325A CAISO
Morelos Del Sol Solar PV Lost Hills, CA 62272A CAISO
Rising Tree Wind Farm
II LLC Wind Mojave, CA 62426A CAISO
Kekawaka Creek
Hydroelectric Facility Small Hydro Zenia, CA 60186A CAISO Woodmere Solar Farm Solar PV Bakersfield,
CA 62429A CAISO
Portal Ridge Solar C
Project Solar PV Lancaster, CA 61684A CAISO
SR Solis Oro Loma
Teresina, LLC - Project
A
Solar PV
Unincorporated
Fresno County,
CA
62841A CAISO
SR Solis Oro Loma
Teresina, LLC - Project
B
Solar PV
Unincorporated
Fresno County,
CA
62841A CAISO
Sunray - 20 Solar PV Daggett, CA 62694A CAISO
SR Solis Rocket, LLC -
Project A Solar PV Avenal, CA 62840A CAISO
SR Solis Rocket, LLC -
Project B Solar PV Avenal, CA 62840A CAISO
San Joaquin 1A Solar PV San Joaquin,
CA 61837A CAISO
Montezuma Wind
Energy Center Wind Birds Landing, CA 60543A CAISO
CalRenew-1 Solar PV Mendota, CA 60475A CAISO
Shiloh II Wind Project Wind Rio Vista, CA 60639A CAISO
High Plains Ranch II Solar PV California
Valley, CA 60603A CAISO
Topaz Solar Farm Solar PV Santa
Margarita, CA 61698A CAISO
Hatchet Ridge Wind Burney, CA 60741A CAISO
CM10 (fka Sempra El
Dorado Solar) Solar PV Boulder City, NV 60713A CAISO
Ivanpah Unit 1 Solar
Thermal Nipton, CA 62273A CAISO
Ivanpah Unit 3 Solar
Thermal Nipton, CA 62275A CAISO
AV Solar Ranch One Solar PV Lancaster, CA 60790A CAISO
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
Alpine Solar Project Solar PV Lancaster, CA 60755A CAISO CM48 (fka Sempra
Copper Mountain 1) Solar PV Boulder City, NV 60786A CAISO Mt. Poso Biomass Bakersfield,
CA 60695A CAISO
Agua Caliente Solar
Project Solar PV Roll, AZ 60894A CAISO
High Plains Ranch III Solar PV California
Valley, CA 60603A CAISO
Mojave Solar Project Solar
Thermal Hinkley, CA 60848A CAISO
Genesis Solar Energy
Project
Solar
Thermal Blythe, CA 60605A CAISO
DTE Stockton Biomass Stockton, CA 60964A CAISO
Big Creek Waterworks Small Hydro Hyampom, CA 60900A CAISO Norman Ross Burgess
- Three Forks Water
Power Project
Small Hydro Zenia, CA 60502A CAISO
Alpaugh 50 Solar PV Alpaugh, CA 60945A CAISO
Alpaugh North Solar PV Alpaugh, CA 60946A CAISO
Atwell Island Solar PV Alpaugh, CA 60947A CAISO
Corcoran Solar PV Corcoran, CA 60948A CAISO
White River Solar PV Alpaugh, CA 60949A CAISO
Avenal Park (Eurus) Solar PV Avenal, CA 60912A CAISO
Sun City Project
(Eurus) Solar PV Avenal, CA 60913A CAISO
Sand Drag (Eurus) Solar PV Avenal, CA 60914A CAISO
Desert Center Solar
Farm Solar PV Desert Center, CA 61068A CAISO
Coram Brodie Wind Tehachapi, CA 60973A CAISO
Mesquite Solar 1 Solar PV Tonopah, AZ 60875A CAISO
Shiloh III Wind Project Wind Rio Vista, CA 61069A CAISO North Star Solar 1 Solar PV Mendota, CA 61198A CAISO
Vasco Wind Energy
Center Wind Livermore, CA 61344A CAISO
Montezuma II Wind
Energy Center Wind Collinsville, CA 61345A CAISO
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
North Sky River Energy
Center Wind Tehachapi, CA 61385A CAISO
Copper Mountain Solar
2 Solar PV Boulder City, NV 60990A CAISO
Shiloh IV Wind Rio Vista, CA 61617A CAISO
NID (RPS) - Bowman Small Hydro Nevada City,
CA 60171A CAISO
NID (RPS) - Dutch Flat Small Hydro Nevada City,
CA 60264A CAISO
NID (RPS) - Rollins Small Hydro Nevada City,
CA 60265A CAISO
SPI Burney Biomass Burney, CA 60087A CAISO
SPI Lincoln Biomass Lincoln, CA 60088A CAISO
SPI Quincy Biomass Quincy, CA 60089A CAISO
SPI Sonora Biomass Sonora, CA 60576A CAISO
SPI Anderson II Biomass Anderson, CA 61146A CAISO
Kansas Solar PV Stratford, CA 61263A CAISO
Henrietta Solar Solar PV Lemoore, CA 61841A CAISO
Diablo Winds (2) Wind Livermore, CA 60030A CAISO
PGE Alta Small Hydro Placer, CA 60033A CAISO
PGE Centerville Small Hydro Butte, CA 60034A CAISO
PGE Coleman Small Hydro Shasta, CA 60037A CAISO
PGE Cow Creek Small Hydro Shasta, CA 60038A CAISO
PGE Crane Valley Small Hydro Madera, CA 60039A CAISO
PGE Deer Creek Small Hydro Nevada, CA 60040A CAISO
PGE De Sabla Small Hydro Butte, CA 60041A CAISO
PGE Dutch Flat 1 Small Hydro Placer, CA 60042A CAISO
PGE Halsey Small Hydro Placer, CA 60043A CAISO
PGE Hamilton Branch Small Hydro Lassen, CA 60044A CAISO PGE Hat 1 Small Hydro Shasta, CA 60045A CAISO
PGE Hat 2 Small Hydro Shasta, CA 60046A CAISO
PGE Inskip Small Hydro Tehama, CA 60047A CAISO
PGE Kerckhoff 1 Small Hydro Fresno, CA 62360A CAISO
PGE Kern Canyon Small Hydro Kern, CA 60048A CAISO
PGE Kilarc Small Hydro Shasta, CA 60049A CAISO
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
PGE Lime Saddle Small Hydro Butte, CA 60050A CAISO
PGE Newcastle Small Hydro Placer, CA 60053A CAISO
PGE Oak Flat Small Hydro Plumas, CA 60276A CAISO
PGE Phoenix Small Hydro Tuolumne, CA 60054A CAISO
PGE Potter Valley Small Hydro Lake, CA 60055A CAISO
PGE Rock Creek RPS
Existing
Large
Incremental
Hydroelectric
Plumas, CA 62269A CAISO
PGE San Joaquin 1A Small Hydro Madera, CA 60056A CAISO
PGE San Joaquin 2 Small Hydro Madera, CA 60057A CAISO
PGE San Joaquin 3 Small Hydro Madera, CA 60058A CAISO
PGE South Small Hydro Tehama, CA 60059A CAISO
PGE Spaulding 1 Small Hydro Placer, CA 60060A CAISO
PGE Spaulding 2 Small Hydro Placer, CA 60061A CAISO
PGE Spaulding 3 Small Hydro Placer, CA 60062A CAISO
PGE Spring Gap Small Hydro Tuolumne, CA 60063A CAISO
PGE Toadtown Small Hydro Butte, CA 60064A CAISO
PGE Tule River Small Hydro Tulare, CA 60065A CAISO
PGE Volta 1 Small Hydro Tehama, CA 60066A CAISO
PGE Volta 2 Small Hydro Tehama, CA 60067A CAISO
PGE West Point Small Hydro Amador, CA 60068A CAISO
PGE Wise 1 Small Hydro Placer, CA 60069A CAISO
PGE Wise 2 Small Hydro Placer, CA 60070A CAISO
PGE A_G_Wishon Small Hydro Madera, CA 60032A CAISO
PGE Five Points Solar PV Five Points,
CA 61432A CAISO
PGE Stroud Solar PV Helm, CA 61434A CAISO
PGE Westside Solar PV Five Points,
CA 61433A CAISO
PGE Cantua Solar PV Cantua Creek,
CA 61823A CAISO
PGE Giffen Solar PV Cantua Creek,
CA 61822A CAISO
PGE Huron Solar PV Huron, CA 61821A CAISO
PGE Gates Solar PV Huron, CA 62353A CAISO
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
PGE Guernsey Solar PV Hanford, CA 62354A CAISO
PGE West Gates Solar PV Huron, CA 62352A CAISO
Vaca-Dixon Solar
(PG&E) Solar PV Vacaville, CA 60966A CAISO
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
APPENDIX B
FORM OF LETTER OF CREDIT
Issuing Bank Letterhead and Address
STANDBY LETTER OF CREDIT NO. XXXXXXXX
Date: [insert issue date]
Beneficiary: Applicant: [Insert name and address of
Applicant]
Letter of Credit Amount: [insert amount]
Expiry Date: [insert expiry date]
Ladies and Gentlemen:
By order of [insert name of Applicant]
[insert number of letter
of credit] to exceed the
aggregate sum of U.S. $ [insert amount in figures followed by (amount in words)] [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] Funds under this Letter of Credit are available to the Beneficiary against presentation of the following documents (which may be presented by physical delivery or by facsimile, e-mail or other electronic transmission):
1. 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:
[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
[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.
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 ("Applicant"), we hereby issue in favor of Pacific Gas and Electric Company (the "Beneficiary") our irrevocable standby letter of credit No. ("Letter of Credit"), for the account of Applicant, for drawings up to but not ("Letter of Credit
Amount"). This Letter of Credit is available with
(the "Expiry Date").
Beneficiary's signed and dated sight draft in the form of Exhibit A hereto, referencing this Letter of A. "Pursuant to the terms of that certain EEi Power Purchase and Sale Agreement (the "Agreement"), dated
B. "Letter of Credit No.
PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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;
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 [i drawings].
All demands for payment shall be made by presentation of copies or original documents, or by facsimile, e-mail, or other electronic transmission of documents to [Insert fax number, email or other electronic transmission], Attention: or [Insert e-mail or other
electronic transmission address]. If a demand is made by facsimile, e-mail or other electronic transmission, the originals or copies of documents must follow by overnight mail, and you may contact us at [Insert phone number(s)] 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 ter 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.
The electronic copy of this Letter of Credit shall be the operative instrument until such time as the original is received. This Letter of credit can be amended or terminated by facsimile, e-mail or other electronic transmission.
Appendix A PG&E
DocuSign Envelope ID: 1 E3546B1-0EEB-443E-BB0B-BB63079FCE94 nsert issuing bank's address for
[Insert name of bank's receiving department]
Commerce (ICC) Publication No. 600 (the "UCP 600"); provided that, if this Let PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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.]
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94 PG&E EEI Short Term Sales Confirm, as of 12/14/2021
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
Appendix A PG&E
DocuSign Envelope ID: 1 E354681-0EEB-443E-BB0B-BB63079FCE94