Staff Report – Item 3
Item 3: Budget Update, 2024 Customer Rate Setting, and Additional Budget Funding Items From: Girish Balachandran, CEO
Prepared by: Amrit Singh, CFO and Director of Administration Date: 12/13/2023
RECOMMENDATION
Adopt Resolution 2023-20:
1. Authorizing the CEO to implement SVCE generation rate changes to establish a 4% discount to PG&E’s applicable generation rates when PG&E’s updated rates are implemented, expected to be January 1, 2024, or after allocation of the sufficient time window for implementing new generation rates in SVCE’s billing system, expected to be within three weeks of PG&E’s release of the new 2024 rates.
2. Adopting the adjusted operating budget that projects depositing $73.8 million into the reserves, considering the above increase in customer discount; updated revenue, power supply, and interest-earning forecasts; and the following additional allocations to the original fiscal year 2023-2024 adopted budget:
a) $1.16 million bill credits for CARE/FERA customers,
b) $20 million towards the purchase of an SVCE office building and c) An additional $20 million to the Programs Fund, which includes grants to cities’ decarbonization programs.
3. Authorize previously budget-allocated but not explicitly approved rollover of $10.125 million to the Program Funds from reserves.
EXECUTIVE COMMITTEE AND FINANCE AND ADMINISTRATION COMMITTEE RECOMMENDATIONS At the November 27th Executive Committee meeting and the November 30th Finance and Administration Committee meeting, staff presented multiple rate discount scenarios, along with additional budget funding proposals, based upon an updated Fiscal Year 2023-2024 (FY24) budget analysis that improves SVCE’s financial projections by about $120 million from the adopted budget. In balancing priorities of supporting customer affordability, strengthening SVCE’s financial health, and promoting SVCE’s decarbonization mission, both Committees endorsed staff’s recommendation to:
1. Maintain the general customer discount level at 4% next year because doing so gives customers a meaningful discount while enabling SVCE to balance other priorities. Maintaining a 4% discount also promotes stability in messaging the rate discount. Rate messaging stability is enhanced when coupled with item #4 below, to set aside reserves to fund a 4% discount for two additional years.
2. Increasing the bill credit for low-income (CARE/FERA) customers because it aligns with the original budget intention of supporting these customers with the dollar equivalent of a 1% overall discount given the now higher projected rates.
3. Setting aside funds for an SVCE office building because it builds assets and is potentially more economical than leasing over the longer term.
4. Setting aside reserves to fund a 4% discount over the next two additional years to support rate stability and indicate the Board’s direction on future rate setting. This Board is not asked to transfer this amount from the reserves at this time because the Board will approve the discount after assessing each year’s financial forecast.
Item 3
SILICON VALLEY \3/ CLEAN ENERGY
Agenda Item: 3 Agenda Date: 12/13/2023
5. Transfer an additional $20 million to the Programs Fund, including grants provided to the cities for their decarbonization projects. Increasing funding for decarbonization programs furthers SVCE’s mission.
Both committees engaged in a robust discussion before aligning with the above recommendations. The second funding scenario that the Executive Committee considered was providing additional customer discounts such that, inclusive of Power Charge Indifference Adjustment (PCIA) 1 , the customers' generation rates remain at
the current levels, which at the projected rate levels would be about 7.2%, amounting to an additional expenditure of about $27 million. The Finance and Administration Committee strongly supported increasing decarbonization programs funding and purchasing an SVCE office building. The Committee discussed whether the purchase of the office building project was appropriately funded. Staff mentioned that preliminary analysis supports a funding request of $20 million, and staff will request adjustments if necessary. Staff also discussed with the Committee that the decarbonization programs at this point are sufficiently funded, and along with continuing to design and implement new programs, the organization is increasing efforts in marketing and promoting these programs.
BACKGROUND
In adopting the FY 2024 budget at the September 2023 Board meeting, the Board voted to maintain the current 4% customer discount rate until the CPUC makes the new PCIA and PG&E generation rates effective, which was expected to occur in January 2024. To set the budget, the Board adopted an effective discount of 2% starting January 2024. The 2 percent effective discount rate is composed of a 1 percent general discount relative to comparable PG&E generation rates for all customers and an additional 1 percent converted to dollar bill credits to the CARE and FERA customers, which amounts to $3.14 million or about $8.70 per month bill credit for 12 months. The Board also agreed to revisit the customer discount level and any additional expenditures when there would be more certainty on PCIA and PG&E generation rates.
When the budget was adopted, staff informed the Board that the budget projections were conservative because the CPUC would likely adopt higher Resource Adequacy (RA) and Renewable Portfolio Standard (RPS) prices in adopting the market price benchmarks (MPB). Higher MPB decreases the PCIA and increases PG&E’s generation charges. It was uncertain to what extent the CPUC would raise the MPB. Staff stated in the report that higher MPB could increase revenues by about $100 million.
The recently issued CPUC MPBs reflect the higher RA and RPS prices, significantly improving SVCE’s financial projections. The 2023/2024 RA prices are up 94%/79%, and RPS prices are up 140%/154%, respectively, compared to estimates staff used in generating the budget. Using the updated MPBs, in October, PG&E issued its revised ERRA2rate forecast that shows its generation rates in January increasing on average by 8 percent from current rates and then from there dropping in July by about 4.5 percent while PCIA on average increases from 0.28 to 0.55 cents per kWh. The PG&E generation rate is about 34 percent higher than those used in developing the adopted budget, while the PCIA is 53 percent lower. On average, SVCE’s margins improve by about 44 percent, which increases revenue projections by $127 million. These changes are depicted in the chart below.
1 Public Utility Code Sections 366.1 and 366.2 require the CPUC to make sure that customers leaving PG&E do not burden remaining PG&E customers with costs that were incurred to serve them. To ensure customer indifference, CCAs and Direct Access or departing load customers are required to pay a power charge indifference adjustment (PCIA).
2 ERRA, the Energy Resource Recovery Account, is a balancing account utilized by PG&E to record and recover power costs associated with PG&E’s authorized procurement plan. ERRA proceedings are used to determine fuel and purchased power costs, which can be recovered in rates.
Item 3
Agenda Item: 3 Agenda Date: 12/13/2023
ANALYSIS & DISCUSSION
Based on the updated PG&E generation and PCIA rates included in PG&E’s October ERRA update filing, which the CPUC is expected to vote on December 14, 2023, the projected net contribution to reserves is anticipated to increase from the adopted budget forecast of $7.7 million to $127.9 million as illustrated in the table below3.
The primary driver for the improved financials is the improvement to SVCE’s margins resulting from lower PCIA and higher PG&E generation rates than those used in creating the adopted budget. The above projections reflect the board-adopted assumptions of a 1 percent customer discount in 2024 and an additional 1% discount converted to dollar bill credits for low-income customers. 3 The updated budget projections are before accounting for additional expenditures. The adjusted budget, incorporating additional expenditures, is shown in Attachment 2.
Item 3
($ in thousands)
DESCRIPTION
Energy Revenues
Power Supply Expense
Operating Margin
Operating Expenses
Non-Operating Revenue (Expense)
Annual Transfers and Other Expenses
Program Fund
Nuclear Allocation
Multi Family Direct Install Program
Electrification Discount Program
Customer Bill Relief
Building Fund
Other
BALANCE AVAILABLE FOR RESERVES
FY 2023-24 FY 2023-24
ADOPTED Updated Change
BUDGET BUDGET $ %
440,404 567,585 127,181 28.9%
391,624 399,546 7,922 2.0%
48,780 168,038 119,259 244.5%
32,361 32,361 0 0.0%
5,498 6,431 932 17.0%
8,874 8,874 0 0.0%
2,188 2,188 0 0.0%
0 0 0 -
0 0 0 -
3,136 3,136 0 0.0%
0 0 0 -
50 50 0 0.0%
$7,669 $127,860 $120,191 1567,1%
Agenda Item: 3 Agenda Date: 12/13/2023
The forecast of SVCE’s reserves projection improves to 334 days of cash on hand (DCOH), above the target threshold of 300 but below the maximum level of 490 DCOH.
Uncertainty of CPUC Approval of Rates
The final 2024 PCIA and PG&E generation rates are unknown until the CPUC adopts them, which is expected at its meeting on December 14, 2023. The CPUC could adopt the rates as PG&E has proposed, modify the proposal, or deny some or all the elements in PG&E’s filing contributing to the overall rate increase. The CPUC could also delay the implementation of the rate changes, in which case SVCE’s current rates will remain in effect. These rate changes are an annual process, and the rates adopted by the CPUC are usually not materially different from PG&E’s fall ERRA updates. While certain assumptions in PG&E’s filings could differ from those adopted by the CPUC, these are not expected to have a significant impact. These elements include having one blended rate increase instead of two rate changes. In the rare event of substantial changes, staff will delay implementing the proposed changes and will return to the Board with a revised proposal in January.
Discussion of Funding Scenarios
With improved financial projections, staff proposed the following funding items for the Executive and the Finance and Administration Committees’ consideration:
• Increasing the customer discount
• Trueing up the intended dollar bill credit to amount to 1% of the overall customer discount for low-income customers because of higher rates than anticipated in the adopted budget • Setting aside funds for an SVCE office building
• Setting aside funds to maintain higher customer discounts over the next two years • Increasing funding for programs that include grants for cities to support their local decarbonization efforts
The table below summarizes the cost of each item and the impact on financial reserve projections for the end of the current fiscal year and over the next 3 to 5 years. Under all these four funding scenarios, the high-level4 reserve estimates remain at or above the target level of 300 DCOH and well below the maximum level of 490 DCOH over the next five years. Based on these projections, staff recommended funding scenario 4.
Planned Timing and Approach for 2023 Rate Updates
After the Board approves the rate changes, the applicable SVCE rate tables will be updated during the first three weeks of the month PG&E’s new rates become effective, which is expected to be January 2024. The exact timing will depend upon when PG&E’s updated rates are received and the required time window for implementing new generation rates in SVCE’s billing system. 4 The 5-year reserves projections were derived using approximations made from the last 5-year financial forecast.
$ Million
Additional Expenditures
1. General Customer Rate Discount Level 1% - 4% 12.90 4% 12.90 4% 12.90 7.2% 26.66 7.2% 26.66
2. True-up 1% Bill Credit to Reflect Higher Rates 1.16 1.16 1.16 1.16 1.16 1.16
3. Transfer to Building Fund 20.00 20.00 20.00 20.00 20.00 20.00
4. Set Aside to Fund at least 4% Discount for 2 Additional Years 34.20 34.20 34.20 34.20
5. Additional Program Expenditures Including Grant to Cities 20.00 6.24 20.00
21.16 34.06 68.26 88.26 88.26 102.02
**Resulting Financial Forecast Reserve Level (DCOH*)
- End of Fiscal Year 333 322 322 322 311 311
- High-Level Estimate*** Reserve 3 years out 350 340 312 312 300 300 - High-Level Estimate*** Reserve 5 years out 379 369 341 324 324 313 * Days cash on hand.
Funding Scenarios
A. Build
Reserves
E. Keep Rates
Unchanged
F. Rates Unchanged with
Lower 5th Yr Reserves
B. Increase
Rate Discount
C. Longer-term
Affordability
D. Add'l Set Aside
for Programs
**Not expected to have any significant impact on forecast of the current fiscal year financialreserves since expenditure is likely delayed to future years.
Item 3
Agenda Item: 3 Agenda Date: 12/13/2023
100% Renewable Energy Option
The GreenPrime rate for 2023, SVCE’s 100% renewable energy option, will reflect the January 2024 default GreenStart rates plus the premium of $0.015 per kWh adopted by the Board at the November 2023 meeting.
Accounting True-up of Program Dollars
The programs fund was created in the fiscal year 2019-2020. Before the fund's creation, the Board allocated program funds in each fiscal year’s operating budget. The purpose of the program funds was to capture program dollars allocated by the Board that span multiple fiscal years because the timing of planning, implementing, and customer’s utilization of program funds often extends beyond the fiscal year the funds are allocated. When the program's fund was created, $10.125 million was allocated after adjustments for some grants received. The intent was that this amount was to roll over into the newly developed program's fund.
Staff is now requesting the Board to explicitly authorize the rollover of these previously allocated funds of $10.125 million5to the programs fund. After the Board's approval, the accounting records and the program fund balance in the Treasurer’s report will be updated.
STRATEGIC PLAN
Rate setting is directly supported by SVCE Strategic Plan Goal 12 – “Enact and maintain competitive service offerings for SVCE customers that deliver measurable economic and environmental benefits” and Goal 19 - “Commit to maintaining a strong financial position.”
ALTERNATIVE
The table earlier in the report presents the Board of Directors with several funding scenarios. Staff is open to feedback and suggestions on any of these proposed or any other additional funding scenarios.
FISCAL IMPACT
The adjusted operating budget improves SVCE’s financial performance, reflecting a net contribution to reserves increase from the adopted budget level of $7.7 million to $73.8 million. The table in the report summarizes the financial impact of additional funding scenarios for the Board of Director's consideration. All the proposed funding scenarios are expected to leave SVCE in a healthy financial position where reserves remain at or above the target level of 300 DCOH and below the maximum reserve level of 490 DCOH.
ATTACHMENT
1. Resolution 2023-20, approving customer generation rates; additional funding for bill credits for CARE/FERA customers, SVCE office building, and decarbonization programs; and rollover of $10.125 million to the Program Funds from reserves
2. Fiscal Year 2023-2024 Adjusted Operating Budget
5 The reserve projections in the table summarizing the funding scenarios account for this rollover to programs funds.
Item 3
1 RESOLUTION 2023-20
SILICON VALLEY CLEAN ENERGY AUTHORITY
RESOLUTION NO. 2023-20
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SILICON
VALLEY CLEAN ENERGY AUTHORITY APPROVING CUSTOMER
GENERATION RATES AND ADDITIONAL FISCAL YEAR 2023-2024
BUDGET FUNDING ITEMS
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, at the June 8, 2016, Board of Directors Meeting, the Board adopted the policy that the Authority’s customer generation rates for the default service will be 1% lower than Pacific Gas & Electric’s generation rates in place as of January 2017; and the policy allows reexamination of the rates, provided significant deviations in market prices or other extraordinary circumstances mandate an adjustment to the rates; and
WHEREAS, on December 14, 2022, the Board of Directors adopted Resolution No. 2022-39, which approved the customer generation rates that are currently in effect with a discount of 4% to PG&E’s generation rates; and
WHEREAS, on September 13, 2023, the Board of Directors adopted Resolution No. 2023-16 approving the fiscal year 2023-2024 operating budget, including the reduction of the generation discount from 4% to 1% when new 2024 PG&E rates are implemented, expected to be in January 2024, and allocated $3.136 million in bill credits for CARE/FERA customers; and
WHEREAS, in December 2023, due to a new improved budget projection resulting from updated 2024 PG&E Generation and PCIA rate projections, the Board of Directors desires to maintain the generation rate discount at 4%, effective when new PG&E rates are implemented, expected to be in January 2024, and amending the fiscal year 2023-2024 budget, as set forth in Exhibit A (the Adjusted Budget), to allocate an additional $1.16 million towards bill credits for CARE/FERA customers, $20 million towards the purchase of an SVCE office building, and an additional $20 million to the Programs Fund, which also includes funding grants to cities decarbonization programs effective when new PG&E rates are implemented, expected to be in January 2024; and WHEREAS, since PG&E is expected to issue its final customer generation rates later in December 2023, the Board of Directors desires to grant the Chief Executive Officer the authority to adjust the Authority’s current electric generation rates for its customers upon receiving PG&E’s updated rates and with sufficient time window for implementing new generation rates in SVCE’s billing system, expected to be within the first 3 weeks of when PG&E finalizes its new rates; and Item 3
Attachment 1
2 RESOLUTION 2023-20
WHEREAS, when the Programs Fund was first created in the fiscal year 2019- 2020, the Board of Directors did not explicitly authorize the rollover of previously budget-allocated funds, including adjustments for grants received, of $10.125 million; the Board of Directors now desires to grant the rollover of $10.125 million to the Programs Fund from reserves.
NOW THEREFORE, the Board of Directors of the Silicon Valley Clean Energy Authority does hereby resolve, determine, and order as follows:
Section 1. Upon the release of PG&E’s final 2024 customer generation rates, the Chief Executive Officer is hereby authorized to amend the Authority’s generation rates to establish a discount of 4% from PG&E’s applicable generation rates.
Section 2. The Authority shall adopt the Adjusted Budget, as set forth in Exhibit A, as the Authority’s fiscal year 2023-2024 budget.
Section 3. The Authority shall rollover $10.125 million to Programs Fund from reserves.
Section 4. The Authority’s electric generation rates, as adjusted by the Chief Executive Officer pursuant to Section 1 above, shall become effective when PG&E’s updated rates are implemented, expected to be on January 1, 2024, or after the allocation of sufficient time window for implementing new generation rates in SVCE’s billing system, expected to be within three weeks after PG&E releases its final January 1st, 2024 customer generation rates, whichever is later.
The Authority’s adjusted electric generation rates shall be set forth in an updated 2024 Electric Generation Rates Schedule. The Chief Executive Officer shall provide a copy of the updated 2024 Electric Generation Rates Schedule to the Board of Directors at its first meeting after the 2024 SVCE electric generation rates are finalized.
PASSED AND ADOPTED this 13th day of December 2023 by the following vote:
Item 3
Attachment 1
3 RESOLUTION 2023-20
JURISDICTION NAME AYE NO ABSTAIN ABSENT
City of Campbell Director Scozzola
City of Cupertino Director Mohan
City of Gilroy Director Hilton
City of Los Altos Director Meadows
Town of Los Altos Hills Director Tyson
Town of Los Gatos Director Rennie
City of Milpitas Director Chua
City of Monte Sereno Director Mekechuk
City of Morgan Hill Director Martinez Beltran
City of Mountain View Director Abe-Koga
County of Santa Clara Director Lee
City of Saratoga Director Walia
City of Sunnyvale Director Klein
Chair
ATTEST:
Andrea Pizano, Board Secretary
Item 3
Attachment 1
Exhibit A
SILICON VALLEY CLEAN ENERGY
FY 2023-24 OPERATING BUDGET
($ in thousands)
FY 2023-24
ADJUSTED
DESCRIPTION BUDGET
ENERGY REVENUES
Energy Sales 552,667
Green Prime 1,968
Other Income 50
TOTAL ENERGY REVENUES 554,685
ENERGY EXPENSES
Power Supply 399,546
OPERATING MARGIN 155,138
OPERATING EXPENSES
Data Management 3,413
PG&E Fees 1,470
Salaries and Retirement 15,406
Professional Services 8,084
Marketing & Promotions 1,349
Notifications 21
Lease 551
General & Administrative 2,067
TOTAL OPERATING EXPENSES 32,361
OPERATING INCOME (LOSS) 122,778
NON-OPERATING REVENUES
Interest Income 6,434
Grant Income 0
TOTAL NON-OPERATING REVENUES 6,434
NON-OPERATING EXPENSES
Financing 3
Interest 0
TOTAL NON-OPERATING EXPENSES 3
TOTAL NON-OPERATING INCOME
(EXPENSES) 6,431
CHANGE IN NET POSITION 129,208
CAPITAL EXPENDITURES, INTERFUND
TRANSFERS & OTHER
Capital Outlay 50
Building Fund 20,000
Transfer to CRCR Fund 0
Program Fund 28,874
Nuclear Allocation 2,188
Multi Family Direct Install Program 0
Electrification Discount Program 0
Customer Bill Relief 4,300
Other 0
TOTAL CAPITAL EXPENDITURES, INTERFUND
TRANSFERS & OTHER $55,412
BALANCE AVAILABLE FOR RESERVES $73,796
Item 3
Attachment 1
Exhibit A
Attachment 2
SILICON VALLEY CLEAN ENERGY
FY 2023-24 OPERATING BUDGET
($ in thousands)
FY 2023-24 FY 2023-24
ADOPTED ADJUSTED
DESCRIPTION BUDGET BUDGET $ %
ENERGY REVENUES
Energy Sales 438,342 552,667 114,325 26.1%
Green Prime 2,012 1,968 (44) -2.2%
Other Income 50 50 0 0.0%
TOTAL ENERGY REVENUES 440,404 554,685 114,281 25.9%
ENERGY EXPENSES
Power Supply 391,624 399,546 7,922 2.0%
OPERATING MARGIN 48,780 155,138 106,359 218.0%
OPERATING EXPENSES
Data Management 3,413 3,413 0 0.0%
PG&E Fees 1,470 1,470 0 0.0%
Salaries and Retirement 15,406 15,406 0 0.0%
Professional Services 8,084 8,084 0 0.0%
Marketing & Promotions 1,349 1,349 0 0.0%
Notifications 21 21 0 0.0%
Lease 551 551 0 0.0%
General & Administrative 2,067 2,067 0 0.0%
TOTAL OPERATING EXPENSES 32,361 32,361 0 0.0%
OPERATING INCOME (LOSS) 16,419 122,778 106,359 647.8%
NON-OPERATING REVENUES
Interest Income 5,501 6,434 932 16.9%
Grant Income 0 0 0 -
TOTAL NON-OPERATING REVENUES 5,501 6,434 932 16.9%
NON-OPERATING EXPENSES
Financing 3 3 0 0.0%
Interest 0 0 0 -
TOTAL NON-OPERATING EXPENSES 3 3 0 0.0%
TOTAL NON-OPERATING INCOME
(EXPENSES) 5,498 6,431 932 17.0%
CHANGE IN NET POSITION 21,917 129,208 107,291 489.5%
CAPITAL EXPENDITURES, INTERFUND
TRANSFERS & OTHER
Capital Outlay 50 50 0 0.0%
Building Fund 0 20,000 20,000 0.0%
Transfer to CRCR Fund 0 0 0 -
Program Fund 8,874 28,874 20,000 225.4%
Nuclear Allocation 2,188 2,188 0 0.0%
Multi Family Direct Install Program 0 0 0 -
Electrification Discount Program 0 0 0 -
Customer Bill Relief 3,136 4,300 1,164 37.1%
Other 0 0 0 -
TOTAL CAPITAL EXPENDITURES, INTERFUND
TRANSFERS & OTHER $14,248 $55,412 $41,164 288.9%
BALANCE AVAILABLE FOR RESERVES $7,669 $73,796 $66,127 862.2% Change
Item 3
Attachment 2
Staff Report – Item 4
Item 4: Approve Formation of Transition Ad Hoc Committee To: SVCE Board of Directors
Prepared by: George Tyson, SVCE Board Chair and Girish Balachandran, CEO Date: 12/13/2023
RECOMMENDATION
Approve the formation of a Transition Ad Hoc Committee made up of Board Chair George Tyson, Board Vice Chair Tina Walia, and Director Rob Rennie, with a sunset date of December 11, 2024.
EXECUTIVE COMMITTEE RECOMMENDATION
The recommendation of the formation of an Ad Hoc Transition Committee was presented to the Executive Committee on November 27, 2023. Discussion at the meeting included Brown Act implications and whether this ad hoc committee would be addressing issues that other Board Committees would normally handle. Staff clarified that this ad hoc committee would not be discussing any policy issues, and the main role of the committee is to be available to the outgoing and incoming CEOs for process and communication needs.
The committee voted unanimously to support the recommendation to form this ad hoc committee, made up of the suggested members.
BACKGROUND
CEO Girish Balachandran publicly announced his intention to retire in August 2023, with an anticipated retirement date of March 31, 2023. Since then, the SVCE Board of Directors formed an SVCE CEO Search Committee (Chair Tyson, Vice Chair Walia, Board Member Rennie), hired a recruiter to assist in the selection process, conducted interviews, and ultimately selected Monica Padilla as SVCE’s new CEO.
As SVCE goes through this CEO transition period, it may be beneficial to have a small committee available to meet with the outgoing and incoming CEOs to keep communication channels open as the organization changes leadership.
ANALYSIS & DISCUSSION
The purpose of this ad hoc committee is to ensure a smooth transition from current CEO to future CEO. During the overlap where CEO Balachandran is CEO through March 2024, the Transition Ad Hoc Committee will focus on the exchange of best practices, stakeholder relations, information sharing, and general operations communication; after CEO Balachandran departs, the ad hoc committee’s focus will be on supporting incoming CEO Padilla in whatever areas of support she is looking for.
Proposed membership of this ad hoc committee would include the following board members: Board Chair Tyson, Board Vice Chair Walia, and Director Rennie. Being that these members participated in the hiring of the new CEO, it is suggested that these members participate in this temporary committee.
The duration of the proposed ad hoc committee would be December 13, 2023 through December 11, 2024.
Item 4
SILICON VALLEY \3/ CLEAN ENERGY
Agenda Item: 4 Agenda Date: 12/13/2023
STRATEGIC PLAN
Supporting SVCE in this transition directly supports our mission and goals of the Strategic Plan.
ALTERNATIVE
Should the Board of Directors choose not to recommend the formation of this ad hoc committee, board members and staff could develop a less structured information sharing process. The CEO could continue to meet informally with the Board Chair and Vice Chair to update them on areas of best practices related to general operations, stakeholder relations, and information sharing.
FISCAL IMPACT
There would be no fiscal impact as a result of creating a Transition Ad Hoc committee.
Item 4
Staff Report – Item 5
Item 5: Authorize the Chief Executive Officer to Execute a Five-Year Agreement with the Association for Energy Affordability Inc. for Multifamily Electrification Program Design and Implementation Support Services
From: Girish Balachandran, CEO
Prepared by: Justin Zagunis, Director of Decarbonization Programs and Policy Nupur Hiremath, Manager of Decarbonization Programs and Policy Leanna Huynh, Senior Programs Specialist
Date: 12/13/2023
RECOMMENDATION
Staff recommends the Board approve and authorize the CEO to execute an agreement with the Association for Energy Affordability Inc. (“AEA”) for program design and implementation support services for SVCE’s multifamily residential electrification program for a period of five years for an amount not to exceed $11 million.
BACKGROUND
In November 2020, the Board approved the Building Decarbonization Joint Action Plan, which identified FutureFit Homes and Buildings as one of SVCE’s cornerstone programs to support the decarbonization of existing buildings. The concept recognized that deeper support would be needed for low-income residents, affordable housing, and small businesses.
In March 2022, the Board approved the Double Down on Decarbonization Programs with a total allocation of $17 million. The Double Down allocation specifically set aside $2 million in funding for a multifamily direct installation program1 as a way of bringing electric retrofits to renters who otherwise don’t have access, and an additional $1 million in funding for a direct installation program for installing electric vehicle (EV) infrastructure at toughest sites and/or affordable housing.
In December 2022, the Board approved $9.5 million of the revenue surplus for the multifamily direct installation program, bringing the total approved program funding to $12.5 million. The Board’s approval also broadened the scope of the program to expand eligibility to the nearly 40% of multifamily buildings in SVCE territory with existing electric heating to upgrade to heat pump technology.
Staff has spent much of this year engaging stakeholders, analyzing the multifamily landscape, and working to design the program concept to deliver a multifamily direct installation program for building and transportation, and is seeking Board approval to execute an agreement with AEA for final program design and implementation of this concept.
ANALYSIS & DISCUSSION
Program Concept
1 Defined as start-to-finish installation of equipment by a program-provided contractor at no cost to the customer Item 5
SILICON VALLEY \3/ CLEAN ENERGY
Agenda Item: 5 Agenda Date: 12/13/2023
This contract will support a new program, the Clean and Healthy Affordable Multifamily Properties program (“CHAMP”). CHAMP aims to fully electrify between 300 to 1,000 dwelling units and install 125 electric vehicle charging ports at existing deed-restricted affordable multifamily properties (5+ units) at no cost to property owners or tenants. The program’s contractors and installers will be paid, at minimum, prevailing wage rates to install building and transportation electrification upgrades at selected properties. This program concept is intended to remove the financial, implementation, and workforce barriers in transitioning properties to all-electric. As the first building-focused direct installation program by SVCE and the first electrification-focused direct installation program for multifamily buildings in the nation2, CHAMP plans to demonstrate the success of an electrification- and equity-focused direct installation program while also identifying potential solutions for future scalability.
For properties that prefer to use their own prevailing wage contractors for electrification projects under design, CHAMP will provide $1.5 million in Gap Funding Grants. These grants will provide flexible, cost-capped incentives that “fill the gap” after all other third-party incentives and funding sources have been exhausted.
This $1.5 million is not included in the contract with AEA and will be directly administered by SVCE.
Prior to program launch (anticipated May 2024), CHAMP will host a minimum of three stakeholder focus group meetings to ensure stakeholders’ needs and concerns are addressed in the final program design. Staff intends to address program eligibility and requirements, energy bill impacts, and eviction protections at these stakeholder meetings.
Staff estimates that there are 95 deed-restricted multifamily properties with a total of 7,629 units in SVCE’s service territory. Given the high level of investment per dwelling unit anticipated for electrification3, this program is not designed to reach all or even a substantial portion of these affordable properties. However, with the experience and lessons learned from this program, SVCE hopes to identify key strategies for future scalability of similar programs, should substantial funding from alternate sources (e.g., state or federal funds) become available for electrification of affordable housing.
CHAMP will pursue third-party incentives (e.g., TECH Clean California, BayREN, etc.) to reduce SVCE’s level of investment per dwelling unit and thereby increase the program’s ability to serve additional properties. The amount of third-party incentives that the program can capture will vary across different properties based on the number of dwelling units at the property, type of property upgrades, program restrictions (e.g., rebate stacking), and other variables. Because of this variability, staff conservatively estimates that the program will be able to serve 300 to 1,000 multifamily dwelling units.
Consultant Selection
SVCE staff solicited a team of consultants to provide program design and implementation support through a competitive bid process as shown in the figure below. Staff issued a request for proposals (RFP) on July 21, which closed on September 15. The RFP was widely distributed to subscribers on SVCE’s Solicitations listserv, the Building Decarbonization Coalition’s listserv, and through direct outreach to existing program operators and contractors. Staff hosted a pre-proposal webinar to provide an opportunity for consultants to coordinate and form teams, which nine organizations attended. After eight weeks, the RFP garnered responses from two qualified teams with deep expertise in designing and implementing multifamily direct installation programs. 2 As far as SVCE staff and AEA have been able to discover. 3 AEA estimates the average gross cost to fully electrify a multifamily building is approximately $27,000 per dwelling unit.
Item 5
Agenda Item: 5 Agenda Date: 12/13/2023
Through this competitive bid process, the AEA team was selected. Team members will provide services as follows:
• AEA is the lead consultant and will serve as program operator for building electrification direct installation services;
• Ecology Action will lead transportation electrification direct installation services; • Rocky Mountain Institute will provide program design support and create standardized retrofit package development;
• Atium Engineering will provide electrical engineering services and support; and • Acterra will lead tenant engagement and education.
Each consultant on this team brings a unique set of tools, experience, and resources to effectively deliver the CHAMP program. The team is led by AEA, a 31-year-old non-profit technical services and training organization at the forefront of increasing energy efficiency and electrification in low-income communities. Since 1992, AEA has carried out a broad range of activities and programs benefitting low-income multifamily residences including the California Department of Community Services and Development’s Low Income Weatherization Program and BayREN’s Multifamily Program. Ecology Action is a 53-year-old non-profit consultancy and certified Women’s Business Enterprise that specializes in developing scalable solutions for hard-to-reach markets. Ecology Action has successfully partnered with SVCE on a direct install pilot program at multifamily housing in the past. Ecology Action currently operates the only two multifamily electric vehicle supply equipment direct install programs in California. Rocky Mountain Institute has been an international thought leader and disseminator of deep energy retrofits for over two decades and brings extensive communication reach. Atium Engineering provides well-engineered buildings by taking a whole-building approach to electrical systems. Acterra is a non-profit based in Palo Alto that has local experience in delivering multi-lingual workshops and community events on energy and climate. Acterra has also successfully partnered with SVCE to deliver free drop-in “Energy Clinics” across Santa Clara County. Together, the AEA team brings robust experience and skills to meet the diverse needs of SVCE’s CHAMP program.
The scope of work with AEA is included in Exhibit A of the proposed agreement (Attachment 1). Upon execution of this proposed agreement, AEA will subcontract with the team above to deliver:
• Program design and administration;
• Marketing and outreach;
• Technical assistance and support to property owners/managers; • Building and transportation electrification equipment and installation services; and • Tenant engagement and education on installed equipment & E-ELEC rate enrollment.
Item 5
design
Mar 2023 Jul 2023 Dec 2023 Jan 2024 May 2024
Informational
interviews with
experts & property
owners
Preliminary program
RFP released
Consultant selection
Contract negotiations
BOD approval of
contract
Contract executed
Host stakeholder Program launch
focus groups
Final program design
Agenda Item: 5 Agenda Date: 12/13/2023
STRATEGIC PLAN
As referenced in SVCE’s Strategic Plan Goal 14, Measure 2, this direct install program is a part of a suite of SVCE’s built environment programs. The need for a program to address existing multifamily buildings was identified in the Double Down on Decarbonization Programs Initiative approved by the Board of Directors in March 2022.
ALTERNATIVE
Staff could pursue alternative designs to address multifamily electrification, such as incentives or technical assistance. However, direct installation services provided for the first time by SVCE and supported by a third-party implementer are an opportunity to test whether we can cost effectively, conveniently, and effectively electrify existing multifamily buildings.
FISCAL IMPACT
Total program funding of $12.5 million for this program is already reflected in the total Board-approved programs allocation. Approval of this contract with AEA for $11 million, therefore, will have no incremental fiscal impact. The proposed 5-year program budget will cover: program design and administration ($1,125,000); marketing and outreach ($375,000); technical assistance ($512,000); equipment and installation services ($8,862,500); and tenant engagement and education ($125,000).
The remaining $1.5 million in program funds will be administered by SVCE to electrification grants for affordable multifamily properties.
ATTACHMENTS
1. Agreement between SVCE and AEA for Multifamily Electrification Direct Install Consultant Services Item 5
1 AGREEMENT BETWEEN THE SILICON VALLEY CLEAN ENERGY AUTHORITY AND
ASSOCIATION FOR ENERGY AFFORDABILITY INC.
FOR
Multifamily Electrification Direct Install Consultant Services THIS AGREEMENT (“Agreement”), is entered into this 13 day of December 2023, by and between the SILICON VALLEY CLEAN ENERGY AUTHORITY, an independent public agency, ("Authority"), and Association for Energy Affordability Inc., a 501 c3 non-profit corporation whose address is 5900 Hollis Street Suite R2, Emeryville, CA 94608 (hereinafter referred to as "Consultant") (collectively referred to as the “Parties” and individually as a “Party”).
RECITALS:
A. Authority is an independent public agency duly organized under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) (“Act”) with the power to conduct its business and enter into agreements.
B. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement pursuant to the terms and conditions described herein.
C. Authority and Consultant desire to enter into an agreement for building and transportation electrification direct install services for multifamily residential customers upon the terms and conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall commence on December 13, 2023, and shall terminate on December 13, 2028, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall perform each and every service set forth in Exhibit "A" pursuant to the schedule of performance set forth in Exhibit "B," both of which are attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed eleven million dollars ($11,000,000.00) based on the rates and terms set forth in Exhibit "C," which is attached hereto and incorporated herein by this reference.
Item 5
Attachment 1
DRAFT
2 4. TIME IS OF THE ESSENCE
Consultant and Authority agree that time is of the essence regarding the performance of this Agreement.
5. STANDARD OF CARE
Consultant agrees to perform all services required by this Agreement in a manner commensurate with the prevailing standards of specially trained professionals in the San Francisco Bay Area under similar circumstances and in a manner reasonably satisfactory to Authority and agrees that all services shall be performed by qualified and experienced personnel. Consultant shall be responsible to Authority for any errors or omissions in the performance of work pursuant to this Agreement. If Authority determines that the Deliverable or Service does not conform to the Deliverable or Service Requirements, Authority shall give notice to Consultant any errors.
Consultant shall provide plan of action to correct errors. Should any errors caused by Consultant be found in such services or products, Consultant shall correct the errors at no additional charge to Authority by redoing the professional work and/or revising the work product(s) called for in the Scope of Services to eliminate the errors. Should Consultant fail to make such correction in a reasonably timely manner, such correction may be made by Authority, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, Authority may deduct the cost of such correction from any retention amount held by Authority or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction.
6. INDEPENDENT PARTIES
Authority and Consultant intend that the relationship between them created by this Agreement is that of an independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by Authority to its employees, including but not limited to, unemployment insurance, workers’ compensation plans, vacation and sick leave are available from Authority to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. Consultant shall indemnify and hold harmless Authority and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of Authority officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant’s personnel practices. Authority shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to Authority from Consultant as a result of Consultant’s failure to promptly pay to Authority any reimbursement or indemnification arising under this section.
7. NO RECOURSE AGAINST CONSTITUENT MEMBERS OF
AUTHORITY
Item 5
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3 Authority is organized as a Joint Powers Authority in accordance with the Joint Powers Act of the State of California (Government Code Section 6500 et seq.) pursuant to a Joint Powers Agreement dated March 31, 2016, and is a public entity separate from its constituent members. Authority shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Consultant shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Authority’s constituent members in connection with this Agreement.
8. NON-DISCRIMINATION
In the performance of this Agreement, Consultant, and any subconsultant under the Consultant, shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation, military or veteran status, or other basis prohibited by law, except as provided in Government Code section 12940. Consultant shall have responsibility for compliance with this Section.
9. HOLD HARMLESS AND INDEMNIFICATION
A. General Indemnification. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify Authority and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those Authority agents serving as independent contractors in the role of Authority officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
B. Intellectual Property Indemnification. Consultant hereby certifies that it owns, controls, or licenses and retains all right, title, and interest in and to any intellectual property it uses in relation to this Agreement, including the design, look, feel, features, source code, content, and other technology relating to any part of the services and including all related patents, inventions, trademarks, and copyrights, all applications therefor, and all trade names, service Item 5
Attachment 1
DRAFT
4 marks, know how, and trade secrets (collectively referred to as “IP Rights”), except as otherwise expressly provided by this Agreement. IP Rights created, conceived, developed, and reduced to practice by Consultant prior to the performance of the Services remain the proprietary rights of Consultant (collectively, the “Consultant’s Pre-Existing IP Rights”). Consultant warrants that the services to be provided pursuant to this Agreement do not infringe, violate, trespass, or constitute the unauthorized use or misappropriation of any IP Rights of any third party. Consultant shall indemnify, defend, and hold Indemnitees, harmless from and against any Liabilities by a third party that the services to be provided pursuant to this Agreement infringe or violate any third-party’s IP Rights, provided any such right is enforceable in the United States. Such costs and expenses shall include reasonable attorneys’ fees of counsel of Authority’s choice, expert fees and all other costs and fees of litigation.
C. The acceptance of the services by Authority shall not operate as a waiver of these rights of indemnification. The hold harmless and indemnification provisions of this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liability.
D. Consultant’s indemnifications and obligations under this section shall survive the expiration or termination of this Agreement.
10. INSURANCE
A. General Requirements. On or before the commencement of the term of this Agreement, Consultant shall furnish Authority with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with the requirements listed in Exhibit "D," which is attached hereto and incorporated herein by this reference. Such insurance and certificates, which do not limit Consultant’s indemnification obligations under this Agreement, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the Authority by certified mail, Attention: Chief Executive Officer." Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to Authority and licensed to do insurance business in the State of California. Endorsements naming the Authority as additional insured shall be submitted with the insurance certificates.
B. Subrogation Waiver. Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her/its insurance for recovery. Consultant hereby grants to Authority, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or Authority with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of Consultant may acquire against Authority by virtue of the payment of any loss under such insurance.
Item 5
Attachment 1
DRAFT
5 C. Failure to Secure or Maintain Insurance. If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, Authority shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.
D. Additional Insured. Authority, its members, officers, employees and volunteers shall be named as additional insureds under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
E. Sufficiency of Insurance. The insurance limits required by Authority are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant.
F. Maximum Coverage and Limits. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the additional insureds. Furthermore, the requirements for coverage and limits shall be the minimum coverage and limits specified in this Agreement, or the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater.
11. CONFLICT OF INTEREST
Consultant warrants that it, its officers, employees, associates and subcontractors, presently have no interest, and will not acquire any interest, direct or indirect, financial or otherwise, that would conflict in any way with the performance of this Agreement, and that it, its officers, employees, associates and subcontractors, will not employ any person having such an interest. Consultant and its officers, employees, associates and subcontractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients, but Consultant and its officers, employees, associates and subcontractors shall not, without the Authority Representative’s prior written approval, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this section into any subcontract that Consultant executes in connection with the performance of this Agreement. Consultant understands that it may be required to fill out a conflict of interest form if the services provided under this Agreement Item 5
Attachment 1
DRAFT
6 require Consultant to make certain governmental decisions or serve in a staff Authority, as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.
12. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of Authority. Any attempt to do so without such consent shall be null and void, and any assignee, sublessee, pledgee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from Authority under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to Authority by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL
Consultant may not subcontract any of the Services it is obligated to perform under this Agreement without the prior written approval of Authority, which approval may be given at Authority sole discretion. Any approval of a subcontractor by Authority may be conditioned upon CONSULTANT contractually requiring each subcontractor to be bound by terms and conditions substantially equivalent to the terms and conditions of this Agreement. Consultant can submit a list of subcontractors throughout the term of this Agreement for approval by Authority.
In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance in substantial conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. Consultant shall, at all times, be responsible for the work, and acts and omissions, of subcontractors and persons directly or indirectly employed by them in connection with the work. Consultant will remain solely responsible to Authority for the proper completion of any Services performed by subcontractors.
Consultant agrees to include within their subcontract(s) with any and all subcontractors the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, to the extent they apply to the scope of the subcontractor’s work. Subcontractors hired by Consultant shall agree to be bound to Consultant and Authority in the same manner and to the same extent as Consultant is bound to Authority under this Agreement. Subcontractors shall agree to include these same provisions within any sub-subcontract. Consultant shall provide a copy of the Indemnity and Insurance provisions of this Agreement to any subcontractor. Consultant shall require all subcontractors to provide valid certificates of insurance and the required Item 5
Attachment 1
DRAFT
7 endorsements prior to commencement of any work and will provide proof of compliance to Authority.
Authority approves the following anticipated subconsultants and their performance of the tasks noted below:
Table 1 – Anticipated Subconsultants
Anticipated
Subconsultant
Role Exhibit “A” Scope of Services Tasks
Ecology Action Electric vehicle supply
equipment (EVSE)
direct installation
services
• Task 1 - Program design and
implementation support
• Task 3 - Education and outreach support for
EVSE Direct Install Measures
• Task 5 - Direct installation services for
EVSE Direct Install Measures
Rocky Mountain
Institute
Program design and
measure package
development
• Task 1 – Program design and
implementation support
• Task 1 – Measure package development and
selection support
Acterra Tenant outreach and
engagement support
• Task 1 – Program design and
implementation support
• Task 7 – Tenant education and outreach
support
• Task 7 – E-ELEC rate education and
outreach support
Atium
Engineering
Engineering support • Task 1 – Program design and
implementation support
• Task 1 – Measure package development and
selection support
• Task 5 – Project-based electrical engineering
support
Installation
Subcontractors
(Consultant to
submit names to
Authority prior to
commencement
of Direct Install
Services
activities.)
Direct installation
services
• Task 5 – Direct installation services
Item 5
Attachment 1
DRAFT
8 14. REPORTS
A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of Authority. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to Authority the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of Authority, and all publication rights are reserved to Authority. Consultant may retain a copy of any Report furnished to the Authority pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by Authority in execution or implementation of: (1) The original project for which Consultant was hired; (2) Completion of the original project by others; (3) Subsequent additions to the original project; and/or (4) Other Authority projects as Authority deems appropriate in its sole discretion.
C. Consultant shall, at such time and in such form as Authority may require, furnish reports concerning the status of services required under this Agreement.
D. All Reports shall also be provided in electronic format, both in the original file format (e.g., Microsoft Word) and in PDF format.
E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement that has not been publicly released shall be made available to any individual or organization by Consultant without prior approval by Authority.
F. Authority shall be the owner of and shall be entitled upon request to immediate possession of accurate reproducible copies of Reports or other pertinent data and information gathered or computed by Consultant prior to termination of this Agreement or upon completion of the work pursuant to this Agreement.
15. RECORDS
Consultant shall maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by Authority that relate to the performance of services under this Agreement, in sufficient detail to permit an evaluation of the services and costs. All such records shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of Authority or its designees at all proper times, and gives Authority the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a minimum period of five (5) years after Consultant receives final payment from Authority for all services required under this agreement
16. PARTY REPRESENTATIVES
Item 5
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9 The Chief Executive Officer (“Authority Representative”) shall represent the Authority in all matters pertaining to the services to be performed under this Agreement. Andrew Brooks, Senior Director (Consultant Representative”) shall represent Consultant in all matters pertaining to the services to be performed under this Agreement.
17. CONFIDENTIAL INFORMATION AND DOCUMENTS
A. Consultant covenants that all data, reports, documents, discussion, or other information (collectively “Data”) developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed or released by Consultant without prior written authorization by Authority. Authority shall grant such authorization if applicable law requires disclosure. Consultant, its officers, employees, agents, or subcontractors shall not without written authorization from the Authority Representative or unless requested in writing by the Authority Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the Authority. Response to a subpoena or court order shall not be considered “voluntary,” provided Consultant gives Authority notice of such court order or subpoena.
B. Consultant shall promptly notify Authority should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the Authority. Authority may, but has no obligation to, represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with Authority and to provide Authority with the opportunity to review any response to discovery requests provided by Consultant. However, Authority’s right to review any such response does not imply or mean the right by Authority to control, direct or rewrite the response.
C. In the event Authority gives Consultant written notice of a “litigation hold”, then as to all data identified in such notice, Consultant shall, at no additional cost to Authority, isolate and preserve all such data pending receipt of further direction from the Authority.
D. Consultant agrees to comply with the confidentiality and data protection provisions set forth in Exhibit “E,” attached hereto and incorporated herein by this reference.
E. Consultant’s covenants under this section shall survive the expiration or termination of this Agreement.
18. NOTICES
Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on personal delivery, (b) on confirmed delivery by courier service during Item 5
Attachment 1
DRAFT
10 Consultant’s and Authority’s regular business hours, (c) via electronic submission or communication as defined in Exhibit A, or (d) three Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
TO AUTHORITY:
333 W. El Camino Real
Suite 330
Sunnyvale CA 94087
Attention: Chief Executive Officer
TO CONSULTANT:
Andrew Brooks
Association for Energy Affordability
5900 Hollis St., Suite R2
Emeryville, CA 94608
19. MEDIATION AND ARBITRATION
Any dispute arising out of or relating to this Agreement or the breach thereof, which cannot be settled through good faith negotiations between the parties, shall be submitted to mediation before a single mediator, in accordance with the then applicable American Arbitration Association Construction Industry Mediation Procedures. If the parties fail to resolve any dispute arising out of or relating to this Agreement or the breach thereof in accordance with the foregoing mediation procedure, such dispute shall be submitted to mandatory arbitration. The arbitrator shall be appointed in accordance with the then applicable Construction Industry Rules of the American Arbitration Association. The parties shall share the procedural costs of mediation and/or arbitration equally. Each party shall pay its own attorneys' fees and costs incurred in connection with the mediation and/or arbitration.
20. TERMINATION
In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If Consultant fails to cure the default within the time specified (which shall be determined by the Authority but shall be not less than 10 days) and according to the requirements set forth in Authority’s written notice of default, and in addition to any other remedy available to the Authority by law, the Authority Representative may terminate the Agreement by giving Consultant written notice thereof, which shall be effective immediately. The Authority Representative shall also have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Consultant as provided herein. Upon receipt of any notice of termination, Consultant shall immediately discontinue performance.
In the event of Authority’s termination of this Agreement due to no fault or failure of performance by Consultant, Authority shall pay Consultant for services satisfactorily performed up to the effective date of termination. Upon termination, Consultant shall immediately deliver to Item 5
Attachment 1
DRAFT
11 the Authority any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by Consultant or given to Consultant, in connection with this Agreement. Such materials shall become the property of Authority. Consultant shall have no other claim against Authority by reason of such termination, including any claim for compensation.
21. COMPLIANCE WITH LAWS
Consultant shall keep itself informed of all applicable federal, state and local laws, ordinances, codes, regulations and requirements which may, in any manner, affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. Consultant shall, at all times, observe and comply with all such laws and regulations, including, but not limited to the Americans with Disabilities Act, the Stored Communications Act, 18 U.S.C. Section 2701, et seq., California Civil Code Sections 1798.80 through 1798.84, and the California Consumer Privacy Act, Civil Code Section 1798.100 et seq. Authority, and its officers and employees, shall not be liable at law or in equity by reason of the failure of the Consultant to comply with this paragraph.
Consultant represents and agrees that all personnel engaged by Consultant in performing services are and shall be fully qualified and are authorized or permitted under state and local law to perform such services. Consultant represents and warrants to Authority that it has all licenses, permits, certificates, qualifications, and approvals required by law to provide the services and work required to perform services under this Agreement, including a business license. Consultant further represents and warrants that it shall keep in effect all such licenses, permits, and other approvals during the term of this Agreement.
Consultant understands and agrees that the installation of equipment as described in "Exhibit A Scope of Services" is subject to the payment of prevailing wage and Consultant and any subcontractors, shall be fully responsible for complying with all California public works requirements including but not limited to payment of prevailing wage.
22. CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State of California. The Agreement and obligations of the Parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the Superior Court of the County of Santa Clara, State of California.
23. ADVERTISEMENT
Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from Authority to do otherwise.
Item 5
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12 24. WAIVER
A waiver by Authority of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
25. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by a written document signed by both Authority and Consultant.
26. AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have the legal Authority and authority to do so on behalf of their respective legal entities.
27. INSERTED PROVISIONS
Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either Party.
28. CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
29. AUTHORITY’S RIGHTS TO EMPLOY OTHER CONSULTANTS
Authority reserves the right to employ other consultants in connection with the subject matter of the Scope of Services.
30. EXHIBITS
The Exhibits referenced in this Agreement are attached hereto and incorporated herein by this reference as though set forth in full in the Agreement. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, or between a provision of this Agreement and a provision of Consultant’s proposal, the provisions of this Agreement shall control.
31. FORCE MAJEURE
Item 5
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13 Consultant shall not be liable for any failure to perform its obligations under this Agreement if Consultant presents acceptable evidence, in Authority’s sole judgment, that such failure was due to acts of God, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
32. FINAL PAYMENT ACCEPTANCE CONSTITUTES RELEASE
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of Authority from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s work or services. Acceptance of payment shall be any negotiation of Authority’s check or the failure to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by Authority shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by Authority for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
33. SEVERABILITY
If any provision in this Agreement is held by a court of competent jurisdiction to be illegal, invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
34. SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement shall be binding on the successors and assigns of the Parties to this Agreement.
35. NO THIRD PARTY BENEFICIARIES INTENDED
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
36. COUNTERPARTS; FACSIMILE/PDF/ELECTRONIC SIGNATURE
This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument. The Parties agree that a facsimile, PDF or electronic signature may substitute for and have the same legal effect as the original signature.
37. DRAFTING PARTY
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14 This Agreement shall be construed without regard to the Party that drafted it. Any ambiguity shall not be interpreted against either Party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the date set forth above.
RECOMMENDED FOR APPROVAL
_______________________________
Justin Zagunis, Director of Decarbonization Programs and Policy
RECOMMENDED FOR APPROVAL
__________________________________________________________ Amrit Singh, Chief Financial Officer/Director of Administrative Services
CONSULTANT NAME
Association for Energy Affordability Inc.
By: ________________________
Name: ________________________
Title: _________________________
Date: __________________________
SILICON VALLEY CLEAN ENERGY
AUTHORITY
A Joint Powers Authority
By: ___________________________
Name: Girish Balachandran
Title: Chief Executive Officer
Date: __________________________
APPROVED AS TO FORM:
_______________________
Counsel for Authority
ATTEST:
_____________________
Authority Clerk
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Exhibit A
Scope of Services
CONSULTANT shall provide the Services detailed in this Exhibit A, entitled “SCOPE of SERVICES.”
Silicon Valley Clean Energy Authority’s (“AUTHORITY”) mission is to provide clean, carbon-free electricity at competitive rates, and to work with its member communities to reduce GHG emissions. One key avenue for this is through customer decarbonization programs.
AUTHORITY has developed several programs roadmaps/plans and been deploying programs since 2019. A key focus of such programs is to provide incentives and technical assistance for building electrification1and transportation electrification2.
While incentives and technical assistance may assist early adopters in transitioning to all-electric buildings or vehicles, deeper assistance is needed to reach underserved customers. For many such customers, the economic, logistical, and technological barriers to electrification are significant. Therefore, Authority envisions a program that provides building and transportation electrification services at no cost to low-income or affordable housing properties (hereafter referred to by the working title “Multifamily Program”). CONSULTANT will leverage its technical expertise and local experience to deliver the Multifamily Program to eligible AUTHORITY customers.
I. Overview of Multifamily Program
The core component of the Multifamily Program will provide direct installation services3for building and transportation electrification upgrades. This will include project advising and planning, building evaluations, site visits, permitting, equipment installation, building benchmarking, and post-installation monitoring (e.g., bill impacts, equipment operation, etc.).
The intent of these direct install services is to remove financial, workforce, and implementation barriers in transitioning selected multifamily properties to all-electric equipment and appliances. hopes to demonstrate the success of such a program in the Bay Area and identify challenges and potential solutions for future scalability.
A supporting component of the Multifamily Program will provide Gap Funding Grants to select properties that meet criteria defined by AUTHORITY. Despite the many incentives provided by existing federal, state, and local programs, it can be difficult for multifamily property owners to fully offset the high upfront costs of electrification and ancillary building improvements (e.g., electric infrastructure upgrades, remediation and safety, etc.). The intent of these Grants is to provide flexible, cost-capped incentives that would “fill the gap” after all other third-party incentive sources have been exhausted. AUTHORITY intends to grant up to $1.5 million in gap funding grants to properties with projects under design. 1 Defined as the replacement of natural gas equipment for space heating, water heating, cooking, and clothes drying with efficient electric alternatives.
2 Defined as the installation of electric vehicle charging infrastructure. 3 Defined as the start-to-finish installation of equipment at no cost to the customer.
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AUTHORITY also recognizes that electrification upgrades alone do not guarantee bill savings and that utility rate design is integral to encouraging all-electric construction. In 2022, AUTHORITY established an E-ELEC (“Electric Home”) residential rate for customers that own and operate a heat pump space or water heater, an energy storage system, and/or an electric vehicle (for more information, visit https://svcleanenergy.org/E-ELEC-RATE/ ). By electrifying property owners’ and tenants’ space and/or water heating appliances, they will become eligible to participate in this new rate. Therefore, a supporting component of the Multifamily Program will be educating and enrolling participating property owners and tenants in the E-ELEC rate.
A) Multifamily Program Goals and Objectives
The intent of the Multifamily Program is to make the transition to all-electric construction as simple and easy as possible for existing deed-restricted affordable multifamily properties. The overarching goals of the Multifamily Program are to: (1) reduce greenhouse gas emissions, and (2) efficiently and cost-effectively scale building and transportation electrification at multifamily properties.
The program objectives in support of the Program goals are:
1. Provide an easily accessible, no-cost installation option for AUTHORITY multifamily customers to fully electrify wherever feasible or substantially electrify otherwise at least 300 dwelling units;
2. Lower energy bills by enrolling at least 60% of eligible property owners and tenants in AUTHORITY’s E-ELEC rate;
3. Provide safer, healthier, thermally comfortable resilient, zero-carbon buildings with improved indoor air quality;
4. Establish a workforce of trusted, experienced installers with high quality equipment capable of whole building electrification without typically needing to upgrade PG&E service lines.
B) Multifamily Program Staffing
CONSULTANT agrees to staff the Multifamily Program in accordance with the Staffing Plan set forth in Table A-1. CONSULTANT will notify AUTHORITY in writing concerning proposed changes to the staffing plan, and all such changes will require the prior written consent of AUTHORITY.
AUTHORITY may (i) request CONSULTANT conduct criminal background checks to AUTHORITY’s satisfaction on all CONSULTANT’s staff that may enter customer premises, and (ii) require that any staff of CONSULTANT that fails the background check will not be permitted to enter any customer premises.
Table A-1 Multifamily Program Staffing Plan
Staff Role & Responsibilities Estimated %
of Total
Hours
Andrew Brooks,
Senior Director of AEA West,
AEA Officer-in-Charge 5%
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Association for Energy Affordability (AEA)
[email protected]
Nick Dirr,
Senior Director of Programs,
AEA
[email protected]
Program oversight 5%
Amy Dryden,
Director of Strategic Initiatives,
AEA
[email protected]
Program design, training 2%
Kevin Miller,
Program Manager,
AEA
[email protected]
Program Manager 28%
Jack Aitchison,
Energy Engineering Manager,
AEA
[email protected]
AEA technical assistance provider
and engineer
5%
John Neal,
Director of Technical Services,
AEA
[email protected]
Support implementation/technical
specification
5%
Carrie Thomas,
Construction Manager
AEA
[email protected]
Construction & Project
Management
24%
Sherry Lee Bryan,
Director,
Ecology Action
[email protected]
Support program and incentive
design for Electric Vehicle Supply
Equipment (EVSE)
5%
Mahlon Aldridge,
Vice President of Strategy,
Ecology Action
[email protected]
Overall program design and
delivery support for EVSE
2%
Frank Denizm,
Construction Project Manager,
Ecology Action
[email protected]
EVSE technical design,
construction/contractor
management, and quality control
2.5%
Darya Oreizi,
Participant Advisor,
Ecology Action
[email protected]
EVSE customer acquisition,
engagement, education, and
commissioning.
2%
Martha Campbell,
Principle,
RMI
[email protected]
Program scaling strategy 2.5%
Brett Webster,
Manager,
Support prototype and package
design
2.5%
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RMI
[email protected]
Nicholas Jiles,
Manager,
RMI
[email protected]
Project management 2%
Dave Maino,
President,
Atium Engineering
[email protected]
Electrical engineering 2.5%
Wendy Chou
Senior Manager
Acterra
[email protected]
E-ELEC Enrollment, tenant
engagement
2%
Lauren Weston
Executive Director
Acterra
[email protected]
E-ELEC Enrollment, tenant
engagement
2%
Zack Wurtz
Director
Acterra
[email protected]
E-ELEC Enrollment, tenant
engagement
1%
Patty Christofferson
Senior Manager
Acterra
[email protected]
E-ELEC Enrollment, tenant
engagement
1%
II. Multifamily Program Implementation & Delivery
Task 1: Direct Install Program Design and Set Up
Task 1.1 Host Program Kick-Off and Ongoing Program Check-In Meetings CONSULTANT will develop an agenda for the Program Kick-off meeting and organize the meeting with AUTHORITY staff to review the program design and delivery, roles, timeline, and priorities. This meeting will also cover logistics, marketing, coordination, establishing workflow systems, invoicing requirements, reports, and any remaining implementation questions.
After the Kick-off meeting, CONSULTANT will set up check-in meetings on a recurring schedule for the duration of the period of performance, unless more frequent meetings are necessary as determined by AUTHORITY. For check-in meetings, CONSULTANT will work with the AUTHORITY project manager(s) to determine the agenda at minimum one day prior to the meeting. Meetings will focus on progress updates, reviewing deliverables, and determining expected milestones for the next meeting.
Task 1.1 Deliverable: Meeting agendas and meeting minutes Task 1.2 Design Program with Stakeholders
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CONSULTANT will incorporate stakeholder feedback into its program design to ensure that customer interests, concerns, and challenges are planned for and addressed to the extent possible.
Prior to program launch, CONSULTANT will form a stakeholder focus group and consult the group regarding key needs and considerations for final program design and implementation. The stakeholder focus group may comprise of affordable housing property owners, government agencies, community-based organizations, and other entities as directed by AUTHORITY.
CONSULTANT will provide up to $15,000 in total compensation to the stakeholder focus group for their participation.
CONSULTANT will host a minimum of three meetings with the focus group. The meetings will include a presentation and discussion of the draft program design including, but not limited to, program eligibility and prioritization criteria, program services, program processes, and marketing and outreach. CONSULTANT will collect and collate the focus group’s feedback.
Based on the focus group’s input and recommendations, the Proposer will revise the Program design and timeline, as necessary, for AUTHORITY approval.
Task 1.2 Deliverable: Stakeholder focus group meeting agendas, slide decks, and meeting minutes
Task 1.3 Develop Program Implementation Manual
CONSULTANT, in consultation with AUTHORITY, will draft a Program Implementation Manual (“Program Manual”) for use by AUTHORITY and CONSULTANT. The Program Manual will describe in greater detail the design, implementation, and policies of the Program.
The Program Manual will include, at minimum, the following:
i. overview of the Program;
ii. the terms and conditions for eligible properties to participate in the Program; iii. the process for enrolling properties in the Program, including targeted outreach, enrollment in direct install services, and enrollment in gap funding grant; iv. List of Direct Install Measures (Task 1.5);
v. List of Cost-capped Incentives (Task 2.1);
vi. the process for properties to participate in the Program; vii. the process for scheduling Program activities;
viii. the process for performing Program activities;
ix. the process for installing equipment, including a Quality Assurance and Quality Control Plan that ensures equipment are installed and working properly and customers are satisfied; x. the process for resolving customer complaints;
xi. the process for providing Program reports; and
xii. the process for completing invoicing.
CONSULTANT will submit a draft Program Implementation Manual to AUTHORITY for review and approval before finalizing. Proposer will provide written revisions and updates to the Program Implementation Manual upon AUTHORITY request. CONSULTANT will adhere to and document its compliance with applicable policies and procedures in the Program Implementation Manual as it performs the Services in this Scope of Services.
Task 1.3 Deliverable: Program Implementation Manual
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Task 1.4 Develop Direct Install Program Participation Agreement In coordination with AUTHORITY, CONSULTANT will draft Direct Install Program Participation Agreement(s) that includes terms and conditions of the Program, and grants the CONSULTANT and its subcontractor(s) permission to perform activities necessary to participate in the Program including site visits, building evaluations, equipment installation, and EM&V. The Participation Agreement is intended to be signed or acknowledged by the property owner or manager.
CONSULTANT will submit the Direct Install Program Participation Agreement to AUTHORITY for review and approval, and will revise and update as directed by AUTHORITY before use.
Task 1.4 Deliverable: Direct Install Program Participation Agreement Task 1.5 Develop List of Direct Install Measures
Building upon Table C-4 in Exhibit “C” Compensation, CONSULTANT will update and draft a list of building and transportation upgrade measures that are eligible for direct install services (“Direct Install Measures”) through the Program for inclusion in the Program Implementation Manual. The intent of the Direct Install Measures is to support the transition to all-electric construction while also minimizing the need for costly electrical service upgrades.
The list of Direct Install Measures will include, at minimum, the following:
i. Replacement of existing electric or gas-fired heating equipment with heat pumps for space heating and cooling;
ii. Replacement of existing gas-fired water heating equipment with heat pump water heaters (central or distributed systems);
iii. Replacement of existing gas-fired range or cooktops with induction or electric resistance range or cooktop;
iv. Replacement of existing gas clothes dryer with heat pump or electric resistance clothes dryer;
v. Installation of electric vehicle charging infrastructure (Level 1 or Level 2); vi. Energy and water efficiency measures that would decrease overall electric demand to reduce the need for electric service upgrades (e.g., LED lighting, occupancy sensors, low-flow water fixtures, load management or demand flexibility measures, circuit splitters or pausers, etc.);
vii. Remediation and safety (e.g., lead or asbestos abatement).
Each Direct Install Measure will also include, at minimum, the following criteria:
i. Description of the measure (e.g., measure name, unit of measure, equipment to be replaced, etc.)
ii. Minimum qualifications and equipment specifications (e.g., efficiency standards, code requirements, equipment model number, etc.).
CONSULTANT will submit the List of Direct Install Measures to AUTHORITY for review and approval before use. CONSULTANT will revise and update the List of Direct Install Measures Item 5
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with new measures proposed by CONSULTANT or AUTHORITY for AUTHORITY review and approval before use.
Task 1.5 Deliverable: List of Direct Install Measures
Task 1.6 Develop Electrification Plan Template
CONSULTANT will draft an Electrification Plan Template for AUTHORITY review and approval and will revise as directed by AUTHORITY before use. Once finalized and approved by AUTHORITY, the Electrification Plan will be provided by CONSULTANT to the property owner or manager, and will include information necessary for the property owner or manager to understand the building and transportation electrification opportunities available to them.
CONSULTANT will provide written revisions and updates to the Electrification Plan Template upon AUTHORITY request.
The Electrification Plan will include the following elements regarding equipment and appliances:
i. An inventory of physical conditions, fuel-type, age and estimated remaining lifespan(s) of existing equipment and appliances;
ii. Identification of whole building efficiency and optimization opportunities; iii. Clear and actionable energy savings and electrification recommendations for the property owner or manager;
iv. Identification of Direct Install Measures as a potential replacement for current equipment; v. Building electrical service and available capacity analysis (either meter-based or electric load calculations as needed) to ensure upgrades can be supported by existing main panels with provided service capacity;
vi. Evaluation of the condition and capacity of the existing electrical systems (panels, subpanels, wiring, etc.) and recommended upgrades that may be necessary to enable the proposed electric equipment;
vii. Recommended locations for new electrical equipment, noting any observed space or structural constraints and possible remedies;
viii. Recommended configuration and locations for new central hot water storage tanks, heat pump water heaters, and distribution equipment, if applicable; ix. Inventory of available parking spaces and existing parking site conditions (assigned and shared spaces, ADA access, garage or open lot, etc.);
x. Recommended configuration and locations of proposed electric vehicle charging ports; xi. Description of a scope of work, including planned work and timeline, that will be executed if property opts to participate in the Program; xii. Estimated energy, water, and GHG savings from proposed projects; xiii. Estimated cost of work to be performed, including applicable third-party incentives and payback periods, for AUTHORITY’s review.
Task 1.6 Deliverable: Electrification Plan Template
Task 1.7 Develop Feedback Form Template
In coordination with AUTHORITY and its EM&V consultant, CONULTANT will assist with drafting a Feedback Form that gives the property owner or manager, and tenants the opportunity Item 5
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to evaluate the Program including program services and processes, technical support, and the overall experience associated with the Program.
CONSULTANT will submit the Feedback Form Template to AUTHORITY for review and approval, and will revise and update as directed by AUTHORITY before use. CONSULTANT will provide the Feedback Forms to customers in either electronic or paper formats.
Task 1.7 Deliverable: Feedback Form Template
Task 1.8 Develop Program Invoice Template
CONSULTANT will develop a Program Invoice Template to meet AUTHORITY’s invoicing requirements, including, but not limited to:
i. Name of company providing invoice (Association for Energy Affordability, Inc.); ii. Invoice number;
iii. Invoice date;
iv. AEA’s remit-to address for invoicing
v. Description of work performed;
vi. Invoice amount, broken down as requested by AUTHORITY according to category of work performed.
CONSULTANT will submit the Program Invoice Template to AUTHORITY for review and approval, and will revise and update the Program Invoice Template as directed by AUTHORITY before use.
Task 1.8 Deliverable: Program Invoice Template
Task 1.9 Develop Program Reporting Template
CONSULTANT will develop a Program Reporting Template to meet AUTHORITY’s reporting requirements and submit to AUTHORITY for review and approval before use. The Program Report will be delivered annually. Program Reports will include program performance metrics as well as a narrative of the program implementation activities, successes and challenges, and next steps.
CONSULTANT will assist AUTHORITY in finalizing program performance metrics to include in the Program Reports. The program performance metrics, at minimum, will include:
i. Properties served via Direct Install Services including:
a. Name of property
b. Number of dwelling units (served and total)
c. Number of tenants (served and total)
d. Location in equity geographic areas (SEVI 3 or 4, Disadvantaged Communities, etc.)
e. Scale of electrification project (partial or full electrification) ii. Properties served via Gap Funding Grants including:
a. Name of property and total award
b. Number of dwelling units (served and total)
c. Number of tenants (served and total)
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d. Location in equity geographic areas (SEVI 3 or 4, Disadvantaged Communities, etc.)
e. Scale of electrification project (partial or full electrification) iii. Project costs including:
a. Category costs (labor, equipment, administrative, etc.) b. Installed Direct Install Measures (quantity, cost, model) c. Third-party incentives received (program name, total incentive, measures) d. Cost trends (average per dwelling unit, program-wide) iv. Project installation including:
a. Duration of major project phases (days for completion per project, average program-wide)
v. Environmental impacts including:
a. Energy impact (kWh and therms per project and program-wide) b. Greenhouse gas emissions savings (lbs of CO2 avoided per project and program-wide) vi. Utility cost impacts including:
a. Bill savings (dollars saved pre- and post-installation) b. Number of customers enrolled in E-ELEC rate (per property and total) CONSULTANT shall track the program performance metrics in an electronic format, such as .csv and .xls file format, or customer relationship management tool such as Salesforce, that can be easily integrated with AUTHORITY’s program portfolio tool.
CONSULTANT will submit the Program Reporting Template to AUTHORITY for review and approval, and will revise and update the Program Reporting Template as directed by AUTHORITY before use.
Task 1.9 Deliverable: Program Reporting Template
Task 2: Gap Funding Grant Design and Set Up
Task 2.1 Develop Cost-Capped Incentives for Gap Funding Grant CONSULTANT will draft a list of cost-capped incentives for projects that are seeking Gap Funding Grants for inclusion in the Program Implementation Manual. The intent of these incentives is to provide flexible funding that support all-electric construction in easy-to-understand categories.
The incentive categories, at a minimum, will include:
i. Electrification equipment;
ii. Electrical infrastructure upgrades;
iii. Remediation and safety
Each incentive category will also include, at minimum, the following criteria:
i. Description of the category (e.g., name, funding requirements, etc.) ii. Cost cap (e.g., maximum allowable total, per unit, or building, etc.) Item 5
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CONSULTANT will submit the List of cost-capped incentives to AUTHORITY for review and approval before use. CONSULTANT will revise and update the list of cost-capped incentives with new incentives proposed by CONSULTANT or AUTHORITY for AUTHORITY review and approval before use.
Task 2.1 Deliverable: List of cost-capped incentives
Task 2.2 Develop Gap Funding Grant Application
CONSULTANT will develop an application for projects seeking Gap Funding Grants. The intent of this application is for the CONSULTANT to assess how the property meets criteria for receiving funding while reducing administrative burden to the applicant. CONSULTANT will fill out these applications on the property’s behalf for AUTHORITY approval. CONSULTANT will submit the Grant Funding Grant Application to AUTHORITY for review and approval, and will revise and update the Gap Funding Grant Application as directed by AUTHORITY before use.
The Gap Funding Grant Application will, at a minimum, include:
i. Applicant information (property address, number of units, etc.); ii. Funding requested listed by cost-capped incentive category; iii. Proposer’s assessment of site opportunities for all-electric construction while reducing costs (e.g., review opportunities for energy efficiency, panel optimization, low-voltage or low-cost technologies, etc.).
iv. Funding secured for planned upgrades from other sources (e.g., community development grants, etc.)
Task 2.2 Deliverable: Gap Funding Grant Application Template Task 2.3 Develop Gap Funding Grant Program Participation Agreement In coordination with AUTHORITY, CONSULTANT will draft Grant Funding Grant Program Participation Agreement(s) that includes terms and conditions of the Program. The Participation Agreement is intended to be signed or acknowledged by the property owner or manager.
CONSULTANT will submit the Gap Funding Grant Program Participation Agreement to AUTHORITY for review and approval, and will revise and update as directed by AUTHORITY before use.
Task 2.3 Deliverable: Gap Funding Grant Program Participation Agreement Task 3: Marketing and Outreach
Task 3.1 Develop Property Ranking List
The Multifamily Program will target existing deed-restricted affordable multifamily properties with five or more units. CONSULTANT will provide input on the ranking criteria and develop a process to rank properties to ensure a diversity of buildings are eligible to participate in the Multifamily Program. CONSULTANT will develop a ranking list of eligible, prioritized properties to target for direct install services (“Ranking List”). CONSUTLANT will use this list Item 5
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to perform targeted outreach to properties as outlined in the Marketing and Communications Plan (Task 3.2).
Task 3.1 Deliverable: Ranking list of prioritized properties and final list of criteria used for prioritization
Task 3.2 Develop Marketing and Communications Plan
CONSULTANT will develop a marketing and communications strategy to engage and enroll properties on the Ranking List in the Program. AUTHORITY has in-house marketing and communications professionals. CONSULTANT is expected to work closely with the AUTHORITY staff to ensure alignment with existing marketing and communications practices, including but not limited to branding guidelines and writing styles.
AUTHORITY understands that engagement strategies may differ from property to property. The intent of this marketing plan is to provide a high-level approach for communicating the program services to the target audience. The marketing plan should include key messages, marketing activities and tactics, marketing materials, and method of delivery.
CONSULTANT will draft the marketing and communications plan and submit to AUTHORITY for review and approval before finalizing.
Task 3.2 Deliverable: Marketing and Communications Plan Task 3.3 Develop Case Studies
In collaboration with AUTHORITY, CONSULTANT will facilitate interviews, photos, and other activities to produce case studies (2-4 pages each) on participating properties. The case studies are intended for public distribution and will highlight successes, challenges, costs, and best practices with transitioning to all-electric construction.
CONSULTANT will provide case studies for each participating property within 90 days of completion of upgrades. CONSULTANT will submit draft case studies to AUTHORITY for review and approval and will revise and update as directed by AUTHORITY before public distribution.
Task 3.3 Deliverable: Case Studies on Participating Properties Task 3.4 Property owner engagement and outreach activities CONSULTANT will market the Program to property owners or managers on the Ranking List as outlined in the Marketing and Communications Plan (Task 3.2). The Proposer will screen the property for eligibility and offer the property either Direct Install Services (Task 5) or Gap Funding Grants (Task 6).
CONSULTANT will engage targeted property owners on the Ranking List and serve as the property owner’s “single point-of-contact” for accessing the Multifamily Program and third-party incentive programs such as TECH Clean California, Bay Area Regional Energy Network (BayREN), California Energy Smart Homes, and others. Although AUTHORITY intends to Item 5
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deliver the Multifamily Program at no-cost to the customer, enrolling properties in third-party incentive programs will reduce the overall cost to the Program and ensure the Multifamily Program can reach additional properties.
After engaging targeted property owners, CONSULTANT will assess whether the property is best suited for Direct Install Services or Gap Funding Grants.
Task 4: Technical Assistance
Task 4.1 Provide technical assistance to property owners CONSULTANT will provide technical assistance to support the property owner or manager throughout the Program. The goal of this task is to be the “single point of contact” for the property on all activities related to the Program. This includes but is not limited to managing communication, program enrollment, project planning and advising, complementary program referral and layering assistance.
Task 4.2 Deliver Electrification Plan
The goal of this task is to perform the necessary activities (e.g., phone/email screenings, in-person site visits, building evaluations, technical or financial analysis, etc.) to deliver a customized Electrification Plan (Task 1.6) to the property owner or manager. The Proposer will implement these activities as detailed in the Program Implementation Manual (Task 1.3).
CONSULTANT will draft the customized Electrification Plan and submit to AUTHORITY for approval. Once approved, CONSULTANT will deliver the Electrification Plan to the property owner or manager.
Task 4.2 Deliverable: Customized Electrification Plan
Task 4.3 Apply for and receive third-party incentives
The goal of this task is to reduce project costs through enrollment in complementary multifamily incentive programs such as, but not limited to: TECH Clean California, Bay Area Regional Energy Network (BayREN), Low Income Weatherization Program, California Energy Smart Homes, and others.
CONSULTANT will apply for and maximize the total amount of (i.e., stack) third-party incentives on behalf of the property owner and/or contractor. AUTHORITY will pay for total project costs less third-party incentives.
Task 4.4 Execute Direct Install Program Participation Agreement After delivering the Electrification Plan to the property owner or manager, CONSULTANT will provide an unsigned version of the Direct Install Program Participation Agreement (Task 1.4) for the property owner or manager to sign and enroll in direct install services. CONSULATNT will provide signed copies to AUTHORITY to issue a notice to proceed (NTP).
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Task 4.4 Deliverable: Signed Direct Install Program Participation Agreements Task 4.5 Provide staff education on installed equipment CONSULTANT will collaborate with AUTHORITY to develop resources, training, and education to property staff on operation and maintenance of new equipment. After installing the Direct Install measures, CONSULTANT will deliver these resources to property staff.
Task 4.5 Deliverable: Staff resources
Task 5: Direct Install Services
Task 5.1 Obtain General Contractors License and other license(s) CONSULTANT will obtain a General Contractors License and other necessary license(s) or certification(s) to perform the Services stated in this Scope of Services. If CONSULTANT is unable to obtain the General Contractors License by the time CONSULTANT is prepared to Implement Direct Install Measures, CONSULTANT will, as an interim measure, operate in the capacity of a program implementer and will not perform work that requires a General Contractors License until such license is obtained. In such a scenario, as program implementer, CONSULTANT will be responsible for developing contractor eligibility requirements, conducting screening and/or bidding processes, and selecting contractors eligible to participate in the program; However, CONSULTANT affirms full intention and commitment to obtaining the required General Contractors License.
Task 5.1 Deliverable: General Contractor License
Task 5.2 Provide training to contractors and subcontractors CONSULTANT will deliver training to contractors and subcontractors to ensure equipment is installed properly and program participants are satisfied, as detailed in Quality Assurance and Quality Control Plan of the Program Implementation Manual (Task 1.3). All contractors and subcontractors must hold the appropriate license(s) for any installation and work performed under this Scope of Services. All equipment must be installed in accordance with all applicable federal, state and local laws, building codes, manufacturer’s specifications, and permitting requirements.
Task 5.3 Install Direct Install Measures
Upon receiving AUTHORITY’s NTP, CONSULTANT will perform the necessary activities to install the Direct Install Measures in accordance with applicable federal, state and local laws, building codes, manufacturer’s specifications and permitting requirements. CONSULTANT will implement a Quality Assurance and Quality Control Plan to verify each project has been installed properly and documented accurately as specified in the Program Implementation Manual (Task 1.3).
CONSULTANT will ensure all manufacturer product warranties held by CONSULTANT will be transferred to the property owner or manager upon completed installation.
Task 6: Implement Gap Funding Grants
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Task 6.1 Assist Properties with Gap Funding Grant Applications AUTHORITY intends to grant up to $1.5 million in gap funding grants to properties with projects under design. After contacting with the property owner or manager, CONSULTANT will determine whether the property meets the AUTHORITY criteria for Gap Funding Grants. If qualified, the Proposer will:
i) develop a Gap Funding Grant Application (Task 2.2) on behalf of the property owner or manager.
ii) review the property’s scope of work for opportunities to pursue all-electric construction.
iii) submit a completed Gap Funding Grant Application to AUTHORITY for approval.
Task 6.1 Deliverable: Completed Gap Funding Grant Applications Task 6.2 Execute Gap Funding Grant Program Participation Agreement After receiving AUTHORITY’s approval, CONSULTANT will provide an unsigned version of the Program Participation Agreement (Task 2.3) for the property owner or manager to sign and receive a Gap Funding Grant. The Proposer will provide signed copies to AUTHORITY.
Task 6.2 Deliverable: Signed Gap Funding Grant Program Participation Agreement Task 7: Tenant Education and Outreach: Electrification Equipment and E-ELEC Rate Enrollment
The goal of this task is to ensure high customer acceptance of property improvements and enrollment in AUTHORITY’s E-ELEC rate. CONSULTANT shall host a minimum of the lesser of one engagement workshop per participating property or 9 engagement workshops or webinars.
CONSULTANT will engage tenants at properties receiving Direct Install Services via surveys, in-person workshops, and/or webinars. CONSULTANT will inform tenants of property improvements, provide electrification equipment education, and identify and resolve concerns. In order to facilitate greater tenant participation, CONSULTANT may provide tenants with compensation for their feedback or participation in engagement activities. CONSULTANT will recommend compensation methods and amounts for AUTHORITY approval before use.
After participating properties complete their projects, CONSULTANT will provide education (e.g., workshops, webinars, etc.) and resources to tenants on AUTHORITY’s E-ELEC rate with the goal of enrolling 60% of eligible customers in the E-ELEC rate. Tenant resources should also be available in multiple languages including English, Spanish, Chinese, and Vietnamese.
Task 7 Deliverable: List of participants for each workshop and webinar Task 8: Provide Ongoing Program Administration
Task 8.1 Provide Monthly Invoicing
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CONSULTANT will invoice AUTHORITY monthly for work performed, including all subcontractor invoices as backup documentation in accordance with the Program Invoice Template (Task 1.10) and as set forth in Exhibit “C” Compensation. Proposer will indicate if invoices are expected to be delayed or anticipated to deviate from the monthly schedule.
Task 8.1 Deliverable: Monthly Invoices
Task 8.2 Manage Prevailing Wage Compliance and Documentation CONSULTANT will be responsible for all prevailing wage compliance, including for all subcontractors. This includes articulating to AUTHORITY what obligations exist, meeting said obligations, and providing all necessary documentation to the Department of Industrial Relations or other entities (to include any obligations that the property owner is nominally responsible for).
If any materials are renewed or subcontractors changed, updated documents must be provided at that time.
Task 8.2 Deliverable: Prevailing Wage Compliance Documentation Task 9: Evaluate Program Performance
Task 9.1 Collect Feedback from Program Participants
After program participant has completed their project, CONSULTANT will provide the Feedback Form Template (Task 1.7) to the program participant. CONSULTANT will collect and review responses from the Feedback Form and as necessary, propose modifications to the Program.
CONSULTANT will address and attempt to resolve all issues discovered through either Feedback Forms or other means of participant contact within five (5) business days of receiving feedback. CONSULTANT will document all such issues, actions taken to resolve them, and outcomes and report them to AUTHORITY. If CONSULTANT cannot resolve program-related issues to the participant’s satisfaction within five (5) business days, CONSULTANT will immediately provide AUTHORITY with a detailed description of each complaint, including the program participant’s name and contact information and any other information requested by AUTHORITY.
Task 9.1 Deliverable: Completed Feedback Forms
Task 9.2 Provide Program Reports
The Proposer will provide annual reports in accordance with the Program Report Template (Task
1.11). CONSULTANT will deliver the Annual Program Report within 60 days of the 12-month reporting period. Proposer will indicate if reports are expected to be delayed or anticipated to deviate from the schedule.
Task 9.2 Deliverable: Annual Program Reports
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Task 9.3 Assist EM+V Consultant with Program Evaluation The goal of this task is to evaluate the performance of the Program. AUTHORITY currently uses a third-party consultant to provide evaluation, monitoring, and verification services for AUTHORITY programs and expects that this consultant will provide EM+V service for the Program as well. CONSULTANT is expected to provide progress reports and any additional data requested by the EM+V consultant within two weeks of request. The EM+V consultant will analyze this data and correlate it, to the extent possible, with program uptake data from across other AUTHORITY programs, to assess broader programmatic impact.
Task 9.4 Develop Final Program Report
CONSULTANT will develop a Program Final Report, which will include Program achievements, challenges, goals, lessons learned, and costs. CONSULTANT will deliver the Final Report within 30 calendar days before the end of the Program. CONSULTANT will provide AUTHORITY a draft Final Report for review and approval.
Task 9.4 Deliverable: Final Program Report
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Exhibit B
Schedule of Performance
CONSULTANT shall perform the Services so as to complete each task by the due date specified below. The time to complete each task may be increased or decreased by written agreement of the project managers for CONSULTANT and AUTHORITY so long as all work is completed within the term of the Agreement. For properties receiving Direct Install Services, CONSULTANT shall provide a detailed schedule of work within two (2) weeks of receipt of the notice to proceed (NTP).
Table B-1 – Project Deliverables and Schedule
Task Deliverables
Timeline
(start to end date, or
due date)
Finalize Contract Scope Fully executed contract December 13, 2023 Task 1 – Direct Install Program Design and Set Up
1.1 Host Program Kick-off Meeting
and Ongoing Program Check In-Meetings
Meeting agendas and meeting
minutes 12/18/2023 (ongoing)
1.2 Design Program with
Stakeholders
Stakeholder Focus Group
meeting agendas, slide decks,
and meeting minutes
02/01/2024 – 04/30/2024
1.3 Develop Program
Implementation Manual
Program Implementation
Manual 12/19/2023 – 06/30/2024
1.4 Develop Direct Install Program
Participation Agreement
Direct Install Program
Participation Agreement 12/19/2023 – 05/31/2024
1.5 Develop List of Direct Install
Measures
List of Direct Install
Measures 12/19/2023 (ongoing)
1.6 Develop Electrification Plan
Template Electrification Plan Template 12/19/2023 – 05/15/2024
1.7 Develop Feedback Form
Template Feedback Form Template 12/19/2023 – 05/15/2024
1.8 Develop Program Invoice
Template Program Invoice Template 01/01/2024 (ongoing)
1.9 Develop Program Reporting
Template Program Reporting Template 06/30/2024 (ongoing) Task 2 – Gap Funding Grant Design and Set Up
2.1 Develop Cost-Capped Incentives
for Gap Funding Grant List of cost-capped incentives 04/01/2024
2.2 Develop Gap Funding Grant
Application
Gap Funding Grant
Application Template 04/30/2024
Task 3 - Marketing and Outreach
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3.1 Develop Property Ranking List
Ranking list of properties and
final criteria used for
prioritization
08/31/2024 (ongoing)
3.2 Develop Marketing and
Communications Plan
Marketing and
Communications Plan 08/31/2024
3.3 Develop Case Studies Case Studies on Participating
Properties 10/31/2025 (ongoing)
3.4 Property owner engagement and
outreach activities 07/01/2024 (ongoing)
Task 4 – Provide Technical Assistance to Property Owners
4.1 Provide Technical Assistance to
Property Owners 07/01/2024 (ongoing)
4.2 Deliver Electrification Plan Customized Electrification Plans 03/01/2025 (ongoing)
4.3 Apply for and receive third-party incentives 03/01/2025 (ongoing)
4.4 Execute Direct Install Program
Participation Agreement
Signed Direct Install Program
Participation Agreements 03/01/2025 (ongoing)
4.5 Provide staff education on
installed equipment Staff resources 03/01/2025 (ongoing) Task 5 – Implement Direct Install Services
5.1 Obtain General Contractor
License General Contractor License January 1, 2025
5.2 Provide training to contractors
and subcontractors 07/01/2024 (ongoing)
5.3 Install Direct Install Measures 03/01/2025 (ongoing) Task 6 – Implement Gap Funding Grants
6.1 Assist Properties with Gap
Funding Grant Applications
Completed Gap Funding
Grant Applications 07/01/2024 (ongoing)
6.2 Execute Gap Funding Grant
Program Participation Agreement
Signed Gap Funding Grant
Participation Agreements 08/01/2024 (ongoing)
Task 7 – Tenant Education and Outreach: Electrification Equipment and E-ELEC Rate Enrollment
7.0 Enroll Properties in E-ELEC
Rate
List of participants for each
workshop or webinar 03/01/2025 (ongoing)
Task 8 – Provide Ongoing Administration
8.1 Provide Monthly Invoicing Monthly Invoices Ongoing
8.2 Provide Prevailing Wage
Compliance Documentation
Prevailing Wage Compliance
Documentation Ongoing
Task 9 – Evaluate Program Performance
9.1 Collect Feedback from Program
Participants
Completed Feedback Forms Ongoing
9.2 Provide Program Reports Annual Program Reports Within 60 days of 12- month reporting period
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9.3 Assist EM+V Consultant with
Program Evaluation Ongoing, as requested
9.4 Develop Final Program Report Final Program Report Within 60 days before end of Program term
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Exhibit C
Compensation
AUTHORITY shall compensate CONSULTANT for professional services in accordance with the terms and conditions of this Agreement, and as set forth in this Exhibit C.
The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit “A” shall not exceed a total of eleven million dollars ($11,000,000) for the Term of the Agreement and as set forth in Table C-1. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to AUTHORITY unless previously approved in writing by AUTHORITY.
AUTHORITY will compensate CONSULTANT based on the hourly rates as set forth in Table C-2 for non-prevailing wage positions and Table C-3 for prevailing wage positions and the materials and other direct costs schedule as set forth in Table C-4, up to the NTE amounts listed in Table C-1. CONSULTANT understands that CONSULTANT’s receipt of compensation for under this Agreement will depend on the number of customers who opt to participate in the Multifamily Program by executing Program Participation Agreements, and CONSULTANT’s satisfactory completion of invoicing activities as described in Exhibit “A” Scope of Work, Task
8.1. AUTHORITY makes no guarantee, express or implied, regarding the number of customers who will participate in programs covered by this Agreement.
AUTHORITY’s Project Manager may approve in writing the transfer of budget amounts between any of the tasks and program years listed below provided the total compensation for Services, including Materials and Other Direct Costs (Table C-4), do not exceed eleven million dollars ($11,000,000) for the Term of the Agreement, as set forth in Section 3 of this Agreement.
CONSULTANT agrees to complete all Services within the amounts set forth in Section 3.
Updates to Table C-2 and Table C-3 Hourly Rates
In the event that CONSULTANT anticipates the need to add additional Position Titles to Tables C-2 or C-3, or in the event that CONSULTANT anticipates the need to increase the rates by more than 10% in Table C-2 or Table C-3, such as for increases in published prevailing wages above Table C-3 assumptions or because procured installation subcontractors have hourly rates that exceed minimum prevailing wages, CONSULTANT shall promptly notify AUTHORITY, in writing. CONSULTANT shall provide a detailed breakdown of the estimated costs, including all relevant supporting documentation. Upon receipt of this notification, AUTHORITY shall review the provided information within a reasonable timeframe, not to exceed 14 days. The AUTHORITY may, at its discretion, approve or deny the uncategorized titles or higher-than-listed rates. If AUTHORITY approves the new titles or higher rates, CONSULTANT shall proceed with the implementation of Direct Install Measures as specified. If AUTHORITY denies the higher costs, CONSULTANT shall make necessary adjustments to ensure costs remain within the program budget.
Thirty days before the start of each calendar year, CONSULTANT shall provide to AUTHORITY up-to-date titles and rates listed in Table C-2 and C-3 of this Agreement for the subsequent year.
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When agreed upon by both parties, an updated Table C-2 and C-3 will be incorporated as an amendment to this Agreement.
Updates to Table C-4 Materials and Other Direct Costs
Thirty days before the start of each calendar year, CONSULTANT shall provide to AUTHORITY up-to-date cost ranges for materials and other direct costs listed in Table C-4 of this Agreement for the subsequent year. When agreed upon by both parties, an updated Table C-4 will be incorporated as an amendment to this Agreement.
In the event that CONSULTANT anticipates that cost exceeds the predefined average cost range listed in Table C-4 by more than 10%, or the Direct Install Measure is not listed in Table C-4 of the Agreement, CONSULTANT shall promptly notify AUTHORITY, in writing.
CONSULTANT shall provide a detailed breakdown of the estimated costs, including all relevant supporting documentation. Upon receipt of this notification, AUTHORITY shall review the provided information within a reasonable timeframe, not to exceed 14 days. The AUTHORITY may, at its discretion, approve or deny the uncategorized or higher-than-average costs. If AUTHORITY approves the higher costs, CONSULTANT shall proceed with the implementation of Direct Install Measures as specified. If AUTHORITY denies the higher costs, CONSULTANT shall make necessary adjustments to ensure costs remain within the program budget.
Invoices
Monthly Invoicing: In order to request payment, CONSULTANT shall submit monthly invoices to the AUTHORITY describing the services performed and the applicable charges (including a summary of the work performed during that period, personnel who performed the services, hours worked, task(s) for which work was performed). In situations where CONSULTANT requests fund advances to facilitate expedient payment to suppliers and installation contractors for Task 5 “Direct Install Services,” CONSULTANT and AUTHORITY will develop a working capital advance invoice structure to be memorialized by amendment to the Agreement. AUTHORITY shall pay all undisputed invoice amounts within thirty (30) calendar days after receipt up to the maximum compensation set forth herein. AUTHORITY does not pay interest on past due amounts.
Reimbursable Expenses
Administrative, overhead, secretarial time or overtime, word processing, photocopying, in house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. Travel expenses must be authorized in advance in writing by AUTHORITY.
Additional Services
CONSULTANT shall provide additional services outside of the services identified in Exhibit A only by advance written authorization from AUTHORITY Representative prior to commencement of any additional services. AUTHORITY shall submit, at the Authority Representative’s request, a detailed written proposal including a description of the scope of additional services, schedule, and proposed maximum compensation. Any changes mutually agreed upon by the Parties, and Item 5
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any increase or decrease in compensation, shall be incorporated by written amendments to this Agreement.
Table C-1 – Total Compensation NTE Amounts
Year 1
NTE
Year 2
NTE
Year 3
NTE
Year 4
NTE
Year 5
NTE
Total Task(s)
NTE
Program
Design and
Set Up
(Tasks 1 & 2)
$187,500 $187,500 $0 $0 $0 $375,000
Program
Admin
(Tasks 8 & 9)
$125,000 $125,000 $125,000 $125,000 $125,000 $625,000
Marketing &
Outreach
(Task 3)
$112,500 $112,500 $75,000 $56,250 $18,750 $375,000
Technical
Assistance
(Task 4)
$51,250 $76,875 $128,125 $128,125 $128,125 $512,500
Direct Install
Services
(Task 5)1
$1,772,500 $1,772,500 $1,772,500 $1,772,500 $1,772,500 $8,862,500 Gap Funding
Grants
(Task 6) 2
$25,000 $25,000 $25,000 $25,000 $25,000 $125,000
Tenant
Education
and Outreach
(Task 7)
$6,250 $31,250 $37,500 $37,500 $12,500 $125,000
Annual NTE3 $2,268,750 $2,325,000 $2,168,750 $2,150,000 $2,087,500 $11,000,000 TABLE C-1 NOTES:
1 – 15% Contingency included
2 – Includes administration budget only.
3 – Annual NTE Amounts provided here are estimations. Actual costs for Direct Install Services, Gap Funding Grants, and other Tasks are subject to change based on realized project cost and timelines and may be moved between Program Years as needed.
Item 5
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C- 4
Table C-2 - Hourly Rate Schedule for Non-Prevailing Wage Positions Title Year 1
Hourly rate
Year 2
Hourly rate
Year 3
Hourly rate
Year 4
Hourly rate
Year 5
Hourly rate
AEA- Senior Director $288.04 $296.68 $305.58 $314.75 $324.19 AEA- Director $201.57 $209.63 $218.02 $226.74 $235.81
AEA - Associate Director $195.50 $203.32 $211.45 $219.91 $228.71 AEA - Senior Manager $169.47 $177.94 $186.84 $196.18 $205.99 AEA - Manager $158.03 $167.51 $177.56 $188.21 $199.51
AEA - Construction Manager $158.03 $167.51 $177.56 $188.21 $199.51 AEA - Site Supervisor $169.47 $177.94 $186.84 $196.18 $205.99 AEA - Senior Associate $145.21 $153.92 $163.16 $172.95 $183.33 AEA - Associate $128.14 $135.83 $143.98 $152.62 $161.77 AEA - Coordinator $105.59 $111.93 $118.64 $125.76 $133.31 Ecology Action - VP & RME $375.96 $387.24 $398.86 $410.82 $423.15 Ecology Action - Principal $344.83 $355.17 $365.83 $376.81 $388.11 Ecology Action - Sr. Vice President $300.24 $309.25 $318.52 $328.08 $337.92 Ecology Action - Vice President $239.78 $246.97 $254.38 $262.01 $269.87 Ecology Action - Senior Engineer $221.15 $227.78 $234.62 $241.66 $248.91 Ecology Action - Marketing Director 1 $198.05 $203.99 $210.11 $216.41 $222.91 Ecology Action - Marketing Director 2 $180.17 $185.58 $191.14 $196.88 $202.78 Ecology Action - Director 3 $276.68 $284.98 $293.53 $302.34 $311.41 Ecology Action - Director 2 $172.24 $177.41 $182.73 $188.21 $193.86 Ecology Action - Director 1 $150.24 $154.75 $159.39 $164.17 $169.10 Ecology Action - Program Manager 3 $150.24 $156.25 $162.50 $169.00 $175.76 Ecology Action - Program Manager 2 $124.28 $129.25 $134.42 $139.80 $145.39 Ecology Action - Program Manager 1 $93.15 $96.88 $100.75 $104.78 $108.97 Ecology Action - Project Manager 3 $172.84 $179.75 $186.94 $194.42 $202.20 Ecology Action - Project Manager 2 $141.33 $146.98 $152.86 $158.98 $165.34 Ecology Action - Project Manager 1 $110.00 $114.40 $118.98 $123.74 $128.68 Ecology Action - Energy Analyst 3 $192.30 $201.92 $212.01 $222.61 $233.74 Ecology Action - Energy Analyst 2 $168.68 $177.11 $185.97 $195.27 $205.03 Item 5
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Ecology Action - Energy Analyst 1 $113.58 $119.26 $125.22 $131.48 $138.06 Ecology Action - Associate 3 $133.89 $141.92 $150.44 $159.47 $169.03 Ecology Action - Associate 2 $112.51 $119.26 $126.42 $134.00 $142.04 Ecology Action - Associate 1 $94.55 $100.22 $106.24 $112.61 $119.37 Ecology Action - Project Assistant 2 $100.00 $106.00 $112.36 $119.10 $126.25 Ecology Action - Project Assistant 1 $90.00 $95.40 $101.12 $107.19 $113.62 RMI - Managing Director $419.00 $435.00 $451.00 $468.00 $486.00 RMI - Sr Principle $275.00 $286.00 $298.00 $310.00 $323.00 RMI - Principle/Director $243.00 $253.00 $264.00 $275.00 $287.00 RMI - Manager $162.00 $170.00 $178.00 $187.00 $196.00
RMI - Sr Associate/Lead/Analyst $132.00 $138.00 $146.00 $153.00 $162.00 RMI - Program Marketer $130.00 $137.00 $144.00 $152.00 $160.00 RMI - Program Operations Manager $127.00 $134.00 $141.00 $149.00 $157.00 RMI - Associate / Specialist $125.00 $131.00 $139.00 $146.00 $154.00 RMI - Program Operations Lead $121.00 $128.00 $134.00 $142.00 $150.00 RMI - Program Assistant / Executive Assistant $112.00 $118.00 $125.00 $132.00 $140.00 Atium Engineering - Principal $200.00 $220.00 $240.00 $260.00 $280.00 Acterra - Coalitions and Projects Senior Manager $56.88 $58.70 $60.58 $62.52 $64.52 Acterra - Equity, Access and Partnerships Senior
Manager
$63.26 $65.28 $67.37 $69.53 $71.75
Acterra - Digital Media Manager $54.11 $55.84 $57.63 $59.47 $61.38 Acterra - Beneficial Electrification and
Education Fellow
$22.89 $23.62 $24.38 $25.16 $25.96
Acterra - Beneficial Electrification Manager $51.13 $52.77 $54.45 $56.20 $58.00 Acterra - Community Engagement Associate $45.79 $47.26 $48.77 $50.33 $51.94 Acterra - Impact Analyst $65.63 $67.73 $69.90 $72.13 $74.44 Acterra - Executive Director $135.41 $139.74 $144.21 $148.83 $153.59 Acterra - Chief of Staff $71.90 $74.20 $76.58 $79.03 $81.55 Acterra - Full Charge Bookkeeper $51.13 $52.77 $54.45 $56.20 $58.00 Item 5
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Table C-3 - Hourly Rate Schedule for Prevailing Wage Positions Title Year 1
Hourly rate
Year 2
Hourly rate
Year 3
Hourly rate
Year 4
Hourly rate
Year 5
Hourly rate
Residential Electrician (Inside Wireman) $69.73 $72.17 $74.70 $77.31 $80.02 Residential Plumber $53.90 $55.79 $57.74 $59.76 $61.85
Residential Roofer $76.48 $79.16 $81.93 $84.80 $87.77
HVAC: Residential Sheet Metal Worker $95.62 $98.97 $102.43 $106.02 $109.73 HVAC: Residential Sheet Metal Worker
(Special Shift)
$101.76 $105.32 $109.01 $112.82 $116.77
HVAC: Residential Sheet Metal Worker
(Second Shift)
$100.74 $104.26 $107.91 $111.69 $115.60
HVAC: Residential Sheet Metal Worker (Third
Shift)
$103.30 $106.92 $110.66 $114.53 $118.54
HVAC: Residential A/C Professional $70.51 $72.98 $75.53 $78.18 $80.91 HVAC: Residential A/C Professional (Special
Shift)
$75.46 $78.10 $80.83 $83.66 $86.59
HVAC: Residential A/C Professional (Second
Shift)
$74.64 $77.25 $79.95 $82.75 $85.65
HVAC: Residential A/C Professional (Third
Shift)
$76.69 $79.38 $82.15 $85.03 $88.01
HVAC: Service Mechanic $75.11 $77.74 $80.46 $83.27 $86.19 HVAC: Service Mechanic (Special Shift) $79.88 $82.68 $85.57 $88.57 $91.67 HVAC: Service Mechanic (Second Shift) $79.09 $81.86 $84.72 $87.69 $90.76 HVAC: Service Mechanic (third Shift) $81.08 $83.92 $86.86 $89.90 $93.04 Residential Carpenter $97.91 $101.34 $104.88 $108.56 $112.36 TABLE C-3 NOTES:
1-All Prevailing Wage rates fixed overhead costs for Health & Welfare, Pension, Vacation/Dues, Training, and Other per DIR, plus 10% markup.
2- Assumes 3.5% annual increase for prevailing wage rate increases. 3- Assumes most projects will be low-rise residential, hence using residential classification.
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Table C-4 - Materials and Other Direct Costs Schedule
Direct Install Measure Description Year 1 Cost Range
DHW: Unitary Heat Pumps
Water Heater
50 to 80 gallon tank sizes. WiFi-enabled. Prices include 12- year manufacturer’s product warranty. No materials or
subcontractor labor markup.
$1,500 - $3,000
DHW: Central Heat Pumps
Water Heater
Based on variable capacity CO2 refrigerant based CHPWH
system cost estimates. No materials or subcontractor labor markup.
$2,000 - $4,000 per apartment
DHW: Commercial Pool
Heat Pump Water Heater
No materials or subcontractor labor markup $2,000-$4,000 HVAC: Unitary Mini-Split
Heat Pump
No materials or subcontractor labor markup $3,000-$6,000 HVAC: Unitary Packaged
Terminal Heat pump
No materials or subcontractor labor markup $2,000-$4,000 HVAC: Unitary Packaged
Heat Pump
No materials or subcontractor labor markup $2,000-$4,000 Laundry: Heat Pump Dryer No materials or subcontractor labor markup $1,000-$2,000 Cooking: Induction Range Cost range includes BASIC and ADVANCED. Advanced includes integrated battery storage, which brings a significant cost premium, but in some cases may reduce overall costs if it eliminates the need for electrical infrastructure upgrades. No materials or subcontractor labor markup
$1,000-$6,000
Building Infrastructure:
Add circuits for a new
electric appliance
No materials or subcontractor labor markup $500-$2,000
Building Infrastructure:
Upgrade Subpanels
Subpanel cost range includes BASIC and ADVANCED.
Advanced includes smart panel or smart breakers. No materials or subcontractor labor markup
$1,000-$7,000
Building Infrastructure:
Replace disconnects at meter
bank
No materials or subcontractor labor markup $1,000-$3,000 Building Infrastructure:
Upsize feeder cable
No materials or subcontractor labor markup $1,000-$10,000 Utility Infrastructure:
Service line disconnect
No materials or subcontractor labor markup $500-$5,000
Utility Infrastructure:
Overhead service connection
No materials or subcontractor labor markup $3,000-$10,000 Utility Infrastructure:
Underground service
connection
No materials or subcontractor labor markup $10,000-$50,000 Utility Infrastructure:
Pole-mount transformer
No materials or subcontractor labor markup $3,000-$5,000 Utility Infrastructure:
Pad-mount transformer
No materials or subcontractor labor markup $10,000-$30,000 EV Charging
Infrastructure: Level 1 EV
charging port or outlet3
No materials or subcontractor labor markup $300-$400
EV Charging
Infrastructure: Level 2 EV
charging port or outlet3
No materials or subcontractor labor markup $700-$2,000
Item 5
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C- 8
Tenant Engagement:
Workshop (90Min)
Virtual or in-person workshop $7,000 - $10,000
Tenant Engagement: 1:1
Consultation
Hourly rate English and non-English consultation with Acterra staff
$300/hr - $400/hr
TABLE C-4 NOTES:
1 - Costs do not include potential bulk procurement discounts as those will need to be negotiated with manufacturers/vendors based on actual quantities.
2 - As the General Contractor, AEA will not be charging any materials or subcontractor labor markup on anything.
3 - These costs do not reflect the cost of pedestals, cellular networking equipment or modems, networking fees, shipping and freight charges and taxes.
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D-1
Exhibit D
Insurance Requirements and Proof of Insurance
Consultant shall maintain the following minimum insurance coverage:
A. COVERAGE:
(1) Workers' Compensation:
Statutory coverage as required by the State of California. (2) Liability:
Commercial general liability coverage with minimum limits of $3,000,000 per occurrence and $5,000,000 aggregate for bodily injury and property damage.
ISO occurrence Form CG 0001 or equivalent is required.
(3) Automotive:
Comprehensive automotive liability coverage with minimum limits of $1,000,000 per accident for bodily injury and property damage. ISO Form CA 0001 or equivalent is required.
(4) Professional Liability
Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. (5) Privacy and Cybersecurity Liability
Privacy and cybersecurity liability (including costs arising from data destruction, hacking or intentional breaches, crisis management activity related to data breaches, and legal claims for security breach, privacy violations, and notification costs of at least $5,000,000 US per occurrence.
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E-1
Exhibit E
Confidentiality and Data Security Requirements
Subject to the terms and conditions of the Agreement, current proprietary and confidential information of Authority regarding customers of Authority (“Authority Customers”) and/or other confidential information (collectively “Confidential Information”) may be disclosed to Consultant from time to time in connection herewith solely for the purposes set forth in the Agreement. Such disclosure is subject to the following legal continuing representations and warranties by Consultant:
1. The Confidential Information disclosed to Consultant in connection herewith may include, without limitation, the following information about Authority Customers: (a) names; (b) addresses; (c) telephone numbers and email addresses; (d) service agreement numbers and account numbers; (e) meter and other identification numbers; (f) Authority-designated account numbers; (g) electricity and gas usage (including monthly usage, monthly maximum demand, electrical or gas consumption, HP load, and other data detailing electricity or gas needs and patterns of usage); (h) billing information (including rate schedule, baseline zone, CARE participation, end use code (heat source) service voltage, medical baseline, meter cycle, bill cycle, balanced payment plan and other plans); (i) payment / deposit status; (j) number of units; and (k) other similar information specific to Authority Customers individually or in the aggregate. Confidential Information shall also include specifically any copies, drafts, revisions, analyses, summaries, extracts, memoranda, reports and other materials prepared by Consultant or its representatives that are derived from or based on Confidential Information disclosed by Authority, regardless of the form of media in which it is prepared, recorded or retained.
2. Except for electric and gas usage information provided to Consultant pursuant to this Agreement, Confidential Information does not include information that Consultant proves (a) was properly in the possession of Consultant at the time of disclosure; (b) is or becomes publicly known through no fault of Consultant, its employees or representatives; or (c) was independently developed by Consultant, its employees or representatives without access to any Confidential Information.
3. From the Effective Date, no portion of the Confidential Information may be disclosed, disseminated or appropriated by Consultant, or used for any purpose other than the purposes set forth in the Agreement.
4. Consultant shall, at all times and in perpetuity, keep the Confidential Information in the strictest confidence and shall take all reasonable measures to prevent unauthorized or improper disclosure or use of Confidential Information. Consultant shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure and prohibits the use of the data for purposes not set forth in the Agreement. Specifically, Consultant shall restrict access to Confidential Information, and to materials prepared in connection therewith, to those employees or representatives of Consultant who have a “need to know” such Confidential Information in the course of their duties with respect to the Consultant program and who agree to be bound by the nondisclosure and confidentiality obligations of this Agreement. Prior to disclosing any Item 5
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Confidential Information to its employees or representatives, Consultant shall require such employees or representatives to whom Confidential Information is to be disclosed to review this Agreement and to agree to be bound by the terms of this Agreement. Consultant shall not disclose Confidential Information or otherwise make it available, in any form or manner, to any other person or entity that is not Consultant’s employee or representative (a “Third Party”), except where that Third Party has separately entered into a nondisclosure agreement with Authority. Without limiting Consultant’s obligation of confidentiality as further described herein, Consultant shall be responsible for establishing, maintaining, and providing a written description to Authority of, a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that comply with or are substantial similar to the security controls identified in the current version of NIST SP800-53, and that is designed to: (a) ensure the security and confidentiality of the Authority’s Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Data; (c) protect against unauthorized disclosure, access to, or use of the Data; (d) ensure the proper disposal of Data; and, (e) ensure that all employees, agents, and subcontractors of Consultant, if any, comply with all of the foregoing. In no case shall the safeguards of Consultant’s data privacy and information security program used to protect Data be less stringent than the safeguards used by Consultant for its own data. If the services include handling credit card information, then the Consultant shall comply at all times with all applicable Payment Card Industry Data Security Standards (PCI-DSS). Consultant agrees and warrants that it is responsible for the security of “cardholder data” that Consultant possesses, stores, processes or transmits on behalf of the Authority, and for any impact on the security of Authority’s cardholder data environment adversely affected by any failure of Company to maintain compliance with provisions of the PCI-DSS applicable to the services.
No less than annually, Consultant shall conduct a comprehensive independent third-party audit of its data privacy and information security program and provide such audit findings to Authority. The required audit shall be a SAS-70 (or successor standard) compliant audit, and Consultant shall provide the audit findings in the form of an SAS-70 Type II report.
5. Notwithstanding the above, Consultant may disclose Confidential Information to the extent required by an order, subpoena, or lawful process requiring the disclosure of such Confidential Information issued by a court or other governmental authority of competent jurisdiction, provided that Consultant notifies Authority immediately upon receipt thereof to allow Authority to seek protective treatment for such Confidential Information.
6. In the event of any act, error or omission, negligence, misconduct, or breach that permits any unauthorized access to, or that compromises or is suspected to compromise the security, confidentiality, or integrity of the Authority’s Data or the physical, technical, administrative, or organizational safeguards put in place by Consultant that relate to the protection of the security, confidentiality, or integrity of the Data, Consultant shall, as applicable: (a) notify Authority as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with Authority in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by Authority; (c) in the case of Confidential Information, at Authority’s sole election, (i) notify the affected individuals who comprise the Confidential Information as soon as practicable but no later than is required to Item 5
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comply with applicable law including, but not limited to, the provisions of California Civil Code Section 1798.82, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or, (ii) reimburse Authority for any costs in notifying the affected individuals; (d) in the case of Confidential Information, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the Confidential Information for the period required to comply with applicable law, or, in the absence of any legally required monitoring services, for no less than twelve (12) months following the date of notification to such individuals; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) without limiting Consultant’s obligations of indemnification as further described in this Agreement, indemnify, defend, and hold harmless Authority for any and all Claims (as defined herein), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Authority in connection with the occurrence; (g) be responsible for recreating lost Data in the manner and on the schedule set by Authority without charge to Authority; (h) provide to Authority a detailed plan within ten (10) calendar days of the occurrence describing the measures Consultant will undertake to prevent a future occurrence and (i) upon conclusion of the occurrence, or at Authority’s request, provide to Authority a comprehensive summary of the occurrence, including reason for occurrence, details of occurrence, how occurrence was addressed and any other information required by Authority, which shall be executed by Consultant and may be relied upon by Authority as a true and accurate account of the occurrence. Notification to affected individuals, as described above, shall comply with applicable law, be written in plain language, and contain, at a minimum: name and contact information of Consultant’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Consultant has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Consultant. This Section shall survive the termination of this Agreement.
7. It shall be considered a material breach of this Agreement if Consultant engages in a pattern or practice of accessing, storing, using, or disclosing the Confidential Information in violation of the contractual obligations described herein. Consultant understands that if Authority finds that Consultant is engaged in a pattern or practice of accessing, storing, using, or disclosing Confidential Information in violation of this Agreement Authority shall promptly cease all disclosures of Confidential Information to Consultant. Consultant further understands that if Authority receives a customer complaint about Consultant’s misuse of data or other violation of the Disclosure Provisions, Authority shall promptly cease disclosing that customer’s information to Consultant and shall notify the California Public Utilities Commission of the complaint.
8. Consultant shall be liable for the actions of, or any disclosure or use by, its employees or representatives contrary to this Agreement; however, such liability shall not limit or prevent any actions by Authority directly against such employees or representatives for improper disclosure and/or use. In no event shall Consultant or its employees or representatives take any actions related to Confidential Information that are inconsistent with holding Item 5
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Confidential Information in strict confidence. Consultant shall immediately notify Authority in writing if it becomes aware of the possibility of any misuse or misappropriation of the Confidential Information by Consultant or any of its employees or representatives. However, nothing in this Agreement shall obligate the Authority to monitor or enforce the Consultant’s compliance with the terms of this Agreement.
9. Consultant shall comply with the consumer protections concerning subsequent disclosure and use set forth in Attachment B to California Public Utilities Commission (CPUC) Decision No. 12-08-045.
10. In addition to any other requirements set forth in the Agreement, within ten (10) business days of receipt of Authority’s written request, and at Authority’s option, Consultant will either return to Authority all tangible Confidential Information, including but not limited to all electronic files, documentation, notes, plans, drawings, and copies thereof, or will provide Authority with written certification that all such tangible Confidential Information of Authority has been destroyed.
11. Consultant acknowledges that disclosure or misappropriation of any Confidential Information could cause irreparable harm to Authority and/or Authority Customers, the amount of which may be difficult to assess. Accordingly, Consultant hereby confirms that the Authority shall be entitled to apply to a court of competent jurisdiction or the California Public Utilities Commission for an injunction, specific performance or such other relief (without posting bond) as may be appropriate in the event of improper disclosure or misuse of its Confidential Information by Consultant or its employees or representatives. Such right shall, however, be construed to be in addition to any other remedies available to the Authority, in law or equity.
12. In addition to all other remedies, Consultant shall indemnify and hold harmless Authority, its officers, employees, or agents from and against and claims, actions, suits, liabilities, damages, losses, expenses and costs (including reasonable attorneys’ fees, costs and disbursements) attributable to actions or non-actions of Consultant and/or its employees and/or its representatives in connection with the use or disclosure of Confidential Information.
13. When Consultant fully performs the purposes set forth in the Agreement, or if at any time Consultant ceases performance or Authority requires Consultant cease performance of the purposes set forth in the Agreement, Consultant shall promptly return or destroy (with written notice to Authority itemizing the materials destroyed) all Confidential Information then in its possession at the direction of Authority. Notwithstanding the foregoing, the nondisclosure obligations of this Agreement shall survive any termination of this Agreement.
Item 5
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Staff Report – Item 6
Item 6: 2024 SVCE Board Elections Information
From: Girish Balachandran, CEO
Prepared by: Andrea Pizano, Sr. Executive Assistant and Board Clerk Date: 12/13/2023
RECOMMENDATION
Staff recommends the Board of Directors receive the process and timeline for SVCE’s 2024 Chair, Vice Chair, and Committee member appointments.
EXECUTIVE COMMITTEE RECOMMENDATION
The Executive Committee received a presentation on November 27, 2023 on the proposed process and timeline; the committee was supportive and did not have any requested changes.
BACKGROUND
At the October 24, 2018 meeting, the Board approved a timeline to appoint SVCE’s Chair, Vice Chair and Executive Committee members in January, with remaining committees assigned at the February Board of Directors meeting. SVCE’s Operating Rules and Regulations were then amended in November 2018 to reflect the timing of selections.
SVCE has been using a selection process for the positions of Chair, Vice Chair, and committees which includes the Board Clerk requesting letters of interest for the positions of Chair and Vice Chair prior to the board meeting to be included in the agenda packet and requesting board members inform the Board Clerk of their interest in serving on one or more of SVCE’s committees. The information is then compiled and presented at the respective board meeting for approval.
The roles of Chair, Vice Chair, and the Executive Committee are scheduled to be selected at the January 10, 2024 meeting, with remaining committee assignments made at the February 14, 2024 meeting.
ANALYSIS & DISCUSSION
Using a similar process followed in previous years, the Board Clerk will send information to the Board of Directors following the December board meeting with a call for letters of interest for the positions of Chair and Vice Chair; letters of interest received for these positions will be included in the January Board of Directors meeting agenda packet. Directors interested in serving on the Executive Committee will also be asked to notify the Board Clerk during this time and names will be included in the staff report for the January board meeting. Nominations will also be accepted from the floor for Chair, Vice Chair and Executive Committee membership.
Following the January board meeting, the Board Clerk will distribute information to board members to indicate interest in SVCE’s other committees (Finance and Administration Committee, Audit Committee, and the 2024 Legislative Ad Hoc Committee). The information will be collected prior to the February board meeting, and staff will include the names of interested directors for each committee in the February board meeting staff report. Requests to join committees will also be considered from the floor at the meeting.
Item 6
SILICON VALLEY \3/ CLEAN ENERGY
Agenda Item: 6 Agenda Date: 12/13/2023
STRATEGIC PLAN
Appointing SVCE’s representatives supports our mission and goals of the Strategic Plan.
ALTERNATIVE
Staff is open to suggestions from the Board of Directors on the process for Chair/Vice Chair and committee selections.
FISCAL IMPACT
There would be no fiscal impact as a result of making appointments.
ATTACHMENTS
1. 2024 Proposed SVCE Board Elections Timeline
2. 2023 Committee Membership Recap
Item 6
SVCE Board Elections Timeline November 21, 2023
2024 SVCE Board Elections Timeline
December 13, 2023: Staff presents item at the Board meeting outlining process for 2024 elections
December 15, 2023: Board Clerk will send a request for letters/indications of interest for the Chair/Vice Chair positions as well as interest from members looking to serve on the Executive Committee for 2024
January 3, 2024: Letters of interest for Chair/Vice Chair and expression of interest for Executive Committee membership responses due to Board Clerk January 10, 2024: Chair, Vice Chair, and Executive Committee selections made at the Board of Directors meeting
January 11, 2024: Board Clerk will distribute information to Directors with a request to indicate interest in serving/continuing to serve on remaining committees February 2, 2024: Interests due to Board Clerk
February 14, 2024: SVCE Committee assignments made at the Board of Directors meeting Item 6
Attachment 1
SILICON VALLEY
CLEAN ENERGY
2023 SVCE Committee Membership Recap
1 1. Executive Committee
Description:
Provide input and support on operational matters;
Gives feedback on staff items and recommendations to the Board of Directors Membership:
Up to six primary board members;
Typically includes the Chair and Vice Chair of the Board Meeting Frequency:
Monthly
2023 Executive Committee Roster Member Agency Notes
1. Tina Walia Saratoga Chair of 2023
2. Bryan Mekechuk Monte Sereno Vice Chair of 2023
3. George Tyson Los Altos Hills
4. Rob Rennie Los Gatos
5. Yvonne Martinez Beltran Morgan Hill
6. Larry Klein Sunnyvale
2. Finance & Administration Committee
Description:
Works with SVCE staff on items related to financial and administrative issues that impact the agency.
Membership:
No fewer than three members and no greater than six members; Can be Board members, Alternate Board members, or a Board appointed member agency staff member.
No alternate directors may attend a committee meeting on behalf of an absent primary appointed director. No more than one Committee member shall represent a particular member agency.
Meeting Frequency:
Quarterly and as-needed
2023 Finance and Administration Committee Roster Member Agency Notes
1. Hung Wei Cupertino Chair of 2023
2. Sally Meadows Los Altos Vice Chair of 2023
3. Elliot Scozzola Campbell
4. Margaret Abe-Koga Mountain View
5. Tina Walia Saratoga
Item 6
Attachment 2
©
SILICONVALLEY
CLEAN ENERGY
2023 SVCE Committee Membership Recap
2 3. Audit Committee
Description:
Works with SVCE staff on the initiation and receiving of the annual audit Membership:
No fewer than three members and no greater than six members; Can be Board members, Alternate Board members, or a Board appointed member agency staff member.
No alternate directors may attend a committee meeting on behalf of an absent primary appointed director. No more than one Committee member shall represent a particular member agency.
Meeting Frequency:
Twice yearly and as needed
2023 Audit Committee Roster Member Agency Notes
1. Bryan Mekechuk Monte Sereno Chair of 2023
2. Sheila Mohan Cupertino Vice Chair of 2023
3. Sergio Lopez Campbell
4. Murali Srinivasan Sunnyvale
5. Harjot Sangha Gilroy City of Gilroy Finance Director – Nominated by Dir. Hilton
Item 6
Attachment 2
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SILICONVALLEY
CLEAN ENERGY
Appendix A
Silicon Valley Clean Energy
Board of Directors Meeting
December 13, 2023
Appendix A
Power Resource Contracts Executed by CEO
SILICON VALLEY
CLEAN ENERGY
1 WSPP RESOURCE ADEQUACY
CONFIRMATION LETTER
BETWEEN
SILICON VALLEY CLEAN ENERGY AUTHORITY
AND
HIGH DESERT POWER PROJECT, LLC
This confirmation letter (“Confirmation”) confirms the transaction between SILICON VALLEY CLEAN ENERGY AUTHORITY, a California joint powers authority (“Seller”), and HIGH DESERT POWER PROJECT, LLC, a California limited liability company (“Buyer”), each individually a “Party” and together the “Parties”, dated as of October 16, 2023 (the “Confirmation Effective Date”), in which Seller agrees to sell and deliver and Buyer agrees to purchase and receive the right to the Product, as such term is defined in Article 3 of this Confirmation (the “Transaction”). This Transaction is governed by the WSPP Agreement effective as of August 12, 2021 (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 shall 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 (as defined herein).
1. DEFINITIONS
1.1 “Alternate Capacity” means any replacement Product which Seller has elected to provide to Buyer in accordance with the terms of Section 4.5.
1.2 “Annual Supply Plan” has the meaning set forth in the Tariff.
1.3 “Applicable Laws” means any law, rule, regulation, order, decision, judgment, or other legal or regulatory determination by any Governmental Body having jurisdiction over one or both Parties or this Transaction, including without limitation, the Tariff.
1.4 “Availability Incentive Payments” has the meaning set forth in the Tariff.
1.5 “Availability Standards” shall mean Availability Standards as defined in Section 40.9 of the Tariff or otherwise applicable to CAISO.
1.6 “Buyer” as used herein shall have the same meaning as “Purchaser” under the WSPP Agreement.
1.7 “CAISO” means the California Independent System Operator or its successor.
1.8 “Capacity Replacement Price” means (a) the price actually paid for any Replacement Capacity purchased by Buyer pursuant to Section 4.7 hereof, plus costs reasonably incurred by Buyer in purchasing such Replacement Capacity, or (b) absent a purchase of any Replacement Capacity, the market price for such Designated RA Capacity not provided at the Delivery Point. The Buyer shall determine such market prices in a commercially reasonable manner. For purposes of Sections 4 and 21.3(2) of the WSPP Agreement, “Capacity Replacement Price” shall be deemed to be the “Replacement Price.”
1.9 “CIRA Tool” means the CAISO Customer Interface for Resource Adequacy application, or its successor platform.
1.10 “Compliance Showings” means the Flexible RAR Showings, LAR Showings, and RAR Showings, as applicable to the Product.
1.11 “Confirmation” has the meaning specified in the introductory paragraph hereof.
1.12 “Confirmation Effective Date” has the meaning specified in the introductory paragraph hereof.
1.13 “Contingent Firm RA Product” has the meaning specified in Section 3.4 hereof.
1.14 “Contract Price” means, for any Monthly Delivery Period, the price specified under the RA Capacity Price Table in Section 4.9.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
2 1.15 “Contract Quantity” means, with respect to any particular Showing Month of the Delivery Period, the amount of Product (in MW) set forth in the “Contract Quantity (MW)” table in Section 4.3 which Seller has agreed to provide to Buyer from the Unit for such Showing Month.
1.16 “Control Area” has the meaning set forth in the Tariff.
1.17 “CPUC Decisions” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-06-064, 06-07- 031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024, 14-06-050, 15-06-063, 16-06-045, 17-06-027, 19-02-022 and 19-06-026, and subsequent decisions related to resource adequacy issued from time to time by the CPUC.
1.18 “CPUC Filing Guide” means the annual document issued by the CPUC which sets forth the guidelines, requirements and instructions for LSE’s to demonstrate compliance with the CPUC’s resource adequacy program.
1.19 “Delivery Period” has the meaning specified in Section 4.1 hereof.
1.20 “Delivery Point” has the meaning specified in Section 4.2 hereof.
1.21 “Designated RA Capacity” shall be equal to, with respect to any particular Showing Month of the Delivery Period, the Contract Quantity of Product for such Showing Month including the amount of Contract Quantity that Seller has elected to provide Alternate Capacity with respect to, minus (i) any reductions to Contract Quantity made in accordance with Section 4.4 with respect to which Seller has not elected to provide Alternate Capacity, and (ii) any reductions resulting from events described under an event described at Section B-3.9 of Service Schedule B in the WSPP Agreement that excuse Seller’s performance.
1.22 “Effective Flexible Capacity” means the flexible capacity of a resource that can be counted towards an LSE’s FCR obligation, as identified from time to time by the Tariff, the CPUC Decisions, LRA, or other Governmental Body having jurisdiction.
1.23 “FCR Attributes” means, with respect to a Unit, any and all FCR attributes that can be counted toward an LSE’s FCR, as they are identified from time to time by the CPUC Decisions, the Tariff, an LRA, or other Governmental Body having jurisdiction that can be counted toward FCR and are consistent with the operational limitations and physical characteristics of such Unit. For clarity, it should be understood that if the CAISO, LRA, or other Governmental Body, defines new or re-defines the FCR Attributes of a Unit, then such change will not result in a change in obligations or payments made pursuant to this Transaction.
1.24 “FCR Showings” means the FCR compliance showings (or similar or successor showings) an LSE is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO) pursuant to the CPUC Decisions and the Tariff, or to an LRA having jurisdiction over the LSE.
1.25 “Firm RA Product” has the meaning specified in the Section 3.3 hereof.
1.26 “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.
1.27 “Flexible Capacity Requirements” or “FCR” means the flexible capacity requirements established for LSEs by the CPUC pursuant to the CPUC Decisions, or by an LRA or other Governmental Body having jurisdiction.
1.28 “Flexible RA Product” has the meaning specified in the Section 3.2 hereof.
1.29 “GADS” means the Generating Availability Data System or its successor.
1.30 “Generic RA Product” means Designated RA Capacity consisting of RAR Attributes and, if applicable, LAR Attributes, which does not include FCR Attributes.
1.31 “Governmental Body” means (i) any federal, state, local, municipal or other government; (ii) 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 (iii) any court or governmental tribunal.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
3 1.32 “LAR” means local area reliability, which is any program of localized resource adequacy requirements established for jurisdictional LSEs by the CPUC pursuant to the CPUC Decisions, or by another LRA having jurisdiction over the LSE, as implemented in the Tariff. LAR may also be known as local resource adequacy, local RAR, or local capacity requirement in other regulatory proceedings or legislative actions.
1.33 “LAR Attributes” means, with respect to a Unit, any and all resource adequacy attributes (or other locational attributes related to system reliability), as may be identified from time to time by the CPUC Decisions, CAISO, LRA, or other Governmental Body having jurisdiction, associated with the physical location or point of electrical interconnection of the Unit within the CAISO Control Area, that can be counted toward LAR and are consistent with the operational limitations and physical characteristics of such Unit, but exclusive of any RAR Attributes which are not associated with where in the CAISO Control Area the Unit is physically located or electrically interconnected. For clarity, it should be understood that if the CAISO, LRA, or other Governmental Body, defines new or re-defines existing local areas, then such change will not result in a change in obligations or payments made pursuant to this Transaction.
1.34 “LAR Showings” means the LAR compliance showings (or similar or successor showings) an LSE is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO) pursuant to the CPUC Decisions, or to an LRA having jurisdiction over the LSE.
1.35 “LRA” has the meaning set forth in the Tariff.
1.36 “LSE” means load-serving entity. LSEs may be an investor-owned utility, an electric service provider, a community aggregator or community choice aggregator, or a municipality serving load in the CAISO Control Area (excluding exports).
1.37 “Maximum Cumulative Capacity” or “MCC” shall have the meaning specified in Section 2.1 hereof.
1.38 “Monthly Delivery Period” means each calendar month during the Delivery Period and shall correspond to each Showing Month.
1.39 “Monthly RA Capacity Payment” has the meaning specified in Section 4.9 hereof.
1.40 “Monthly Supply Plan” has the meaning set forth in the Tariff.
1.41 “NERC” means the North American Electric Reliability Council, or its successor.
1.42 “NERC/GADS Protocols” means the GADS protocols established by NERC, as may be updated from time to time.
1.43 “Net Qualifying Capacity” has the meaning set forth in the Tariff.
1.44 “Non-Availability Charges” has the meaning set forth in the Tariff.
1.45 “Notification Deadline” means in respect of a Showing Month the day that is fifteen (15) Business Days before the Compliance Showing deadlines. For illustrative purposes only, as of the Confirmation Effective Date, the applicable Compliance Showing deadlines are as follows: (A) forty-five (45) days prior to the Showing Month covered by the Supply Plan for the Monthly Supply Plan; and (B) the last Business Day of October that is prior to commencement of the year for the Annual Supply Plan. The Parties acknowledge and agree that such dates may be modified by the CAISO or CPUC from time to time throughout the Delivery Period
1.46 “Outage” means disconnection, separation, or reduction in the capacity of any Unit that relieves all or part of the offer obligations of the Unit consistent with the Tariff. For the avoidance of doubt, Outage shall be deemed to include Planned Outage (defined below).
1.47 “Planned Outage” means, subject to and as further described in the CPUC Decisions and the Tariff (Planned Outage referred to as “Approved Maintenance Outage” under the Tariff), 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.
1.48 “Product” has the meaning specified in Article 3 hereof.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
4 1.49 “RA Capacity” means the qualifying and deliverable capacity of the Unit for RAR, LAR, and FCR purposes for the Delivery Period, as determined by the CAISO, or other Governmental Body authorized to make such determination under Applicable Laws. RA Capacity encompasses the RAR Attributes, LAR Attributes and FCR Attributes of the capacity provided by a Unit, as applicable pursuant to this Confirmation.
1.50 “RA Capacity Price” means the price specified in the RA Capacity Price Table in Section 4.9 hereof.
1.51 “RAR” or “Resource Adequacy Requirements” means the resource adequacy requirements, exclusive of LAR and FCR, established for LSEs by the CPUC pursuant to the CPUC Decisions, by the CAISO under the Tariff, or by an LRA or other Governmental Body having jurisdiction.
1.52 “RAR Attributes” means, with respect to a Unit, any and all resource adequacy attributes, as may be identified from time to time by the Tariff, the CPUC Decisions, LRA, or any Governmental Body having jurisdiction, that can be counted toward RAR and are consistent with the operational limitations and physical characteristics of such Unit, exclusive of any LAR Attributes or FCR Attributes. If the CPUC adopts a Slice of Day reform, or another similar type of reform that results in a change in the RA capacity product, these additional attributes shall be included within the definition of “RAR Attributes”.
1.53 “RAR Showings” means the RAR compliance showings (or similar or successor showings) an LSE is required to make to the CPUC (and/or, to the extent authorized by the CPUC, to the CAISO), pursuant to the Tariff, the CPUC Decisions or LRA having jurisdiction.
1.54 “Replacement Capacity” has the meaning specified in Section 4.7 hereof.
1.55 “Replacement Unit” means a generating unit meeting the requirements specified in Section 4.5.
1.56 “Resource Adequacy Plan” has the meaning set forth in the Tariff.
1.57 “Resource Category” shall be as described in the CPUC Filing Guide, as such may be modified, amended, supplemented or updated from time to time.
1.58 “Scheduling Coordinator” or “SC” has the same meaning as in the Tariff.
1.59 “Seller” has the meaning specified in the introductory paragraph hereof.
1.60 “Showing Month” is the calendar month during the Delivery Period that is the subject of the Compliance Showing. For illustrative purposes only, pursuant to the CPUC Decisions in effect as of the Confirmation Effective Date, the monthly Compliance Showing made in June is for the Showing Month of August.
1.61 “Shown Unit” means a Unit, or any Replacement Unit meeting the requirements of Section 4.5 of this Confirmation from which RA Capacity will be provided by Seller to Buyer and that Seller identifies annually pursuant to Article 2.
1.62 “Subsequent Buyer” means the purchaser of Product from Buyer in a re-sale of Product by Buyer.
1.63 “Substitute Capacity” has the meaning set forth in the Tariff for “RA Substitute Capacity.”
1.64 “Supply Plan” has the meaning set forth in the Tariff.
1.65 “Tariff” means the tariff and protocol provisions of the CAISO, including associated rules, procedures and business practice manuals, as amended or supplemented from time to time.
1.66 “Transaction” has the meaning specified in the introductory paragraph hereof.
1.67 “Unit” or “Units” shall mean the generation assets described in Article 2 hereof (including any Replacement Units), from which RA Capacity is provided by Seller to Buyer.
1.68 “Unit EFC” means the Effective Flexible Capacity set by the CAISO for the applicable Unit. If the CAISO adjusts the Effective Flexible Capacity of a Unit after the Confirmation Effective Date, then for the period in which the adjustment is effective, the Unit EFC shall be deemed the lesser of (i) the Unit EFC as of the Confirmation Effective Date, and (ii) the CAISO-adjusted Effective Flexible Capacity. To the extent the Confirmation Effective Date of this Confirmation occurs prior to the DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
5 CAISO’s setting of a Unit EFC for the applicable Unit, the Unit EFC shall be as agreed to by the Parties and specified in Article 2, and Seller represents that, to the best of its knowledge, this Unit EFC is consistent with the CAISO’s methodology for determining Unit EFC as of the Confirmation Effective Date. To the extent the CAISO creates new categories of flexible capacity during the term of this Transaction and a Unit can count toward such new categories of flexible capacity while operating consistent with the operational limitation and physical characteristics of such Unit, any and all such new categories of flexible capacity shall be deemed to be part of the Effective Flexible Capacity of that Unit. The above notwithstanding, to the extent the CAISO decides to reduce the applicable Unit EFC, Seller shall not be liable for any costs or damages related to such reduction and the Unit EFC shall be reduced per Section 4.4 of this Confirmation.
1.69 “Unit NQC” means the Net Qualifying Capacity set by the CAISO for the applicable Unit. If the CAISO adjusts the Net Qualifying Capacity of a Unit after the Confirmation Effective Date, then for the period in which the adjustment is effective, the Unit NQC shall be deemed the lesser of (i) the Unit NQC as of the Confirmation Effective Date, and (ii) the CAISO-adjusted Net Qualifying Capacity.
2. UNIT DESIGNATION
2.1 Seller to Annually Designate Shown Unit
(a) On an annual basis during the term of this Transaction, Seller shall designate the Shown Unit(s) from which RA Capacity will be provided to Buyer for the following calendar year by providing Buyer with the specific Unit information contained in Appendix A by no later than five business days after execution of this contract.
(b) The Shown Unit shall meet the Product characteristics and Contract Quantity specified in Sections 3 and 4 and the Resource Category requirements set forth in Section 2.1(c).
Under no circumstances shall the Shown Unit be a coal-fired generating facility. (c) The Shown Unit shall qualify as a Maximum Cumulative Capacity (“MCC”) Resource Category 4 resource, which is described in the CPUC’s 2024 Filing Guide as being able to run or operate in “All Hours (planned availability is unrestricted)” and which is available all 24 hours of each day.
(d) Nothing in this Section 2.1 shall be construed to limit the applicability of Sections 4.4 (Adjustment to Contract Quantity) or 4.5 (Alternate Capacity and Replacement Units) of this Confirmation.
(e) Seller’s designation of the Shown Unit each year shall not in any way (i) convert the Contingent Firm RA Product being sold under this Confirmation into Firm RA Product, or (ii) cause any change to the Monthly RA Capacity Payment.
3. RESOURCE ADEQUACY CAPACITY PRODUCT
During the Delivery Period, Seller shall provide to Buyer, pursuant to the terms of this Confirmation, the Contract Quantity of (i) RAR Attributes and, if applicable, LAR Attributes, and (ii) FCR Attributes, if Flexible RA Product is specified in Section 3.2, and the Contract Quantity shall be either a Firm RA Product or a Contingent Firm RA Product, as specified in either Section 3.3 or 3.4 (the “Product”). The Product does not confer to Buyer any right to the electrical output from the Units, other than the right to include the Designated RA Capacity associated with the Contract Quantity in RAR Showings, LAR Showings, and FCR Showings, as applicable, and any other capacity or resource adequacy markets or proceedings as specified in this Confirmation. Specifically, no energy or ancillary services associated with any Unit is required to be made available to Buyer as part of this Transaction and Buyer shall not be responsible for compensating DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
6 Seller for Seller's commitments to the CAISO required by this Confirmation. Seller retains the right to sell pursuant to the Tariff any RA Capacity from a Unit that is in excess of that Unit’s Contract Quantity and any RAR Attributes, LAR Attributes or FCR Attributes not otherwise transferred, conveyed, or sold to Buyer under this Confirmation.
3.1 RAR and LAR Attributes
Seller shall provide Buyer with the Designated RA Capacity of RAR Attributes and, if applicable, LAR Attributes from each Unit, as measured in MWs, in accordance with the terms and conditions of this Agreement.
3.2 Flexible RA Product
Seller shall provide Buyer with Designated RA Capacity of FCR Attributes from the Units in the amount of the applicable Contract Quantity.
3.3 Firm RA Product
Seller shall provide Buyer with Designated RA Capacity from the Units in the amount of the Contract Quantity. If the Units are not available to provide the full amount of the Contract Quantity for any reason other than an Uncontrollable Force, including without limitation any Outage or any adjustment of the RA Capacity of any Unit, pursuant to Section 4.4, then, Seller shall provide Buyer with Designated RA Capacity from one or more Replacement Units pursuant to Section 4.5 hereof. If Seller fails to provide Buyer with replacement Designated RA Capacity from Replacement Units pursuant to Section 4.5, then Seller shall be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof.
3.4 Contingent Firm RA Product
Seller shall provide Buyer with Product from the Unit in the amount of the applicable Contract Quantity; provided, however, that if, and to the extent that the Unit is not available to provide the full amount of the Contract Quantity due to any reduction in Contract Quantity in accordance with Section 4.4, Seller shall have the option to notify Buyer 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 4.5. If Seller fails to provide Buyer with the Designated RA Capacity from the Unit and has failed to supply Alternate Capacity to fulfill the remainder of the Designated RA Capacity during such period, Seller shall be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Section 4.7 and 4.8.
4. DELIVERY AND PAYMENT
4.1 Delivery Period
The Delivery Period shall be inclusive.
4.2 Delivery Point
The Delivery Point for each Unit shall be the CAISO Control Area, and if applicable, the LAR region in which the Unit is electrically interconnected.
4.3 Contract Quantity
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
Q
7 The Contract Quantity of each Unit for each Monthly Delivery Period shall be:
Contract Quantity (MW)
Month/Year Contract Quantity (MW)
4.4 Adjustments to Contract Quantity
(a) Planned Outages: If Seller is providing Contingent Firm RA Product and is unable to provide the applicable Contract Quantity for a portion of a Showing Month due to a Planned Outage of the Unit, then Seller shall have the option, but not the obligation, upon written notice to Buyer by the Notification Deadline, to either (i) reduce the Contract Quantity in accordance with the Planned Outage for such portion of the Showing Month, provided such reduction is able to be reflected on the Supply Plans in accordance with the Tariff; or (ii) provide Alternate Capacity in accordance with Section 4.5 up to the Contract Quantity for the applicable portion of such Showing Month.
(b) Reductions in Unit NQC: If Product is both (i) Generic RA Product, and (ii) Contingent Firm RA Product specified under Section 3.4, then Seller’s obligation to deliver the applicable Contract Quantity for any Showing Month may also be reduced if the Unit experiences a reduction in Unit NQC after the Confirmation Effective Date as determined by the CAISO.
Seller’s potential reduction in Contract Quantity for each remaining Showing Month shall equal the product of (A) the applicable Showing Month Contract Quantity and (B) the total amount (in MW) Unit NQC was reduced since Confirmation Effective Date, divided by (C) Unit NQC as of the Confirmation Effective Date. If the Unit experiences such a reduction in Unit NQC, then Seller has the option, but not the obligation, subject to written notice to Buyer by the Notification Deadline, to provide the applicable Contract Quantity for such Showing Month from (x) the same Unit, provided the Unit has sufficient remaining and available Product and/or (y) from Replacement Units, provided, that in each case Seller provides and identifies such Replacement Units in accordance with Section 4.5. (c) Reductions in Unit EFC: If Product is both (i) Flexible RA Product specified under Section
3.2, and (ii) Contingent Firm RA Product specified under Section 3.4, then Seller’s obligation to deliver the applicable Contract Quantity of Product for any Showing Month may also be reduced if the Unit experiences a reduction in Unit EFC as determined by the CAISO. Seller’s potential reduction in Contract Quantity for each remaining Showing Month shall equal the product of (A) the applicable Showing Month Contract Quantity and (B) the total amount (in MW) Unit EFC was reduced since Confirmation Effective Date, divided by (C) Unit EFC as of the Confirmation Effective Date. If the Unit experiences such a reduction in Unit EFC, then Seller has the option, but not the obligation, to provide the applicable Contract Quantity for such Showing Month from (x) the same Unit, provided the Unit has sufficient remaining and available Product and/or (y) from Replacement Units, provided, that in each case Seller provides and identifies such Replacement Units in accordance with Section 4.5.
(d) UCAP: If during the Delivery Period the CAISO or the CPUC either replaces Unit NQC as the value utilized to measure the qualifying capacity of a Unit with a successor value such as unforced capacity (UCAP) or utilizes such successor value as a supplemental means of measuring the qualifying capacity of a Unit together with Unit NQC, Seller shall have the right, but not the obligation, to send written notice to Buyer of such change (“Notice of Successor Value”). Following receipt of such notice from Seller, the Parties shall negotiate an amendment to this Confirmation so that from and after such replacement Seller shall convey to Buyer an amount of qualifying capacity of such Unit of (i) no less than the amount DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
8 obtained by calculating the Buyer’s share of such qualifying capacity but (ii) no more than the Contract Quantity. Under such amendment, Seller’s pro-rata delivery obligation shall be equal to the product of (A) the Contract Quantity divided by the Unit NQC, multiplied by (B) the Unit’s overall qualifying capacity (in MW) as measured by such new method of measuring a Unit’s qualifying capacity).
4.5 Alternate Capacity and Replacement Units
(a) If Seller is unable to provide the full Contract Quantity for any Showing Month for any reason, including, without limitation, due to one of the reasons specified in Section 4.4, or Seller desires to provide the Contract Quantity for any Showing Month from a different generating unit other than the Unit, then Seller may, at no cost to Buyer, provide Buyer with Alternate Capacity from one or more Replacement Units, with the total amount of Product provided to Buyer from the Unit and Replacement Units up to an amount equal to the Contract Quantity for the applicable Showing Month; provided that in each case, Seller shall notify Buyer of its intent (i) not to provide or (ii) to provide Alternate Capacity and identify Replacement Units meeting the above requirements and the Resource Category requirements set forth in Section 2.1(c), no later than the Notification Deadline. If Seller notifies Buyer in writing as to the particular Replacement Units and such Units meet the requirements of this Section 4.5, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for that Showing Month. (b) With respect to a Contingent Firm RA Product, if Seller does not provide Alternate Capacity in an amount equal to the Contract Quantity for that Showing Month, then Buyer may, but shall not be required to, purchase replacement Product. Seller shall not be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if (i) the failure to deliver the full Contract Quantity is due to a reduction in Contract Quantity in accordance with Section 4.4 and (ii) Seller has notified Buyer, no later than the Notification Deadline, of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month.
4.6 Delivery of Product
Seller shall provide Buyer with the Designated RA Capacity of Product for each Showing Month consistent with the following:
(a) Seller shall submit, or cause the Unit’s Scheduling Coordinator to submit, by the Notification Deadline (i) Monthly Supply Plans and (ii) Annual Supply Plans if the Confirmation Effective Date is prior to the year-ahead Compliance Showing deadline applicable for the Showing Months as specified in Section 4.1, in accordance with the Tariff, identifying and confirming the transfer of the Designated RA Capacity to Buyer for each Showing Month, unless Buyer specifically requests in writing that Seller not do so (it being understood that any Designated RA Capacity subject to such a request from Buyer will be deemed to have been provided to Buyer for all purposes under this Confirmation). (b) The Product is delivered and received when the CIRA Tool shows the Supply Plan accepted for the Product from the Unit by CAISO or Seller complies with Buyer’s instruction to withhold all or part of the Contract Quantity from Seller’s Supply Plan for any Showing Month during the Delivery Period. Seller has failed to deliver the Product if (i) Buyer has elected to submit the Product from the 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 due solely to a Seller error, and are rejected by CAISO, or (ii) Seller fails to submit the volume of Designated RA Capacity for any Showing Month pursuant to this Confirmation. Buyer will have received the Contract Quantity if (x) Seller’s Supply Plan is accepted by the CAISO for the applicable Showing Month, (y) Seller correctly submits the Supply Plan and the Supply Plan and/or Resource DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
9 Adequacy Plan are not matched in the CIRA Tool due solely to a Buyer error or (z) Seller complies with Buyer’s instruction to withhold all or part of the Contract Quantity from Seller’s Supply Plan for the applicable Showing Month. Seller will not have failed to deliver the Contract Quantity if Buyer fails or chooses not to submit the Unit and the Product in its Resource Adequacy Plan with the CPUC or CAISO.
4.7 Damages for Failure to Provide Designated RA Capacity If Seller fails to provide Buyer with the Designated RA Capacity of Product for any Showing Month and such failure is not excused under the terms of this Confirmation, then the following shall apply:
(a) Buyer may, but shall not be required to, replace any portion of the Designated RA Capacity not provided by Seller with capacity having equivalent RAR Attributes, LAR Attributes and/or FCR Attributes as the Designated RA Capacity not provided by Seller, provided, that, if any portion of the Designated RA Capacity that Buyer is seeking to replace is Designated RA Capacity having RAR Attributes and no LAR Attributes (such capacity shall also include FCR Attributes if this is a Flexible Capacity Product) and no such RAR capacity is available, then Buyer may replace such portion of the Designated RA Capacity with other capacity having RAR Attributes and LAR Attributes (as well as FCR Attributes if this is a Flexible Capacity Product) (“Replacement Capacity”). Such Replacement Capacity may be provided by CAISO to Buyer pursuant to the Tariff. Buyer may enter into purchase transactions with one or more parties to replace any portion of Designated RA Capacity not provided by Seller. Additionally, Buyer may enter into one or more arrangements to repurchase its obligation to sell and deliver capacity to another party and, to the extent such transactions are done at prevailing market prices, such arrangements shall be considered equivalent to the procurement of Replacement Capacity. Buyer shall use commercially reasonable efforts to minimize damages when procuring any Replacement Capacity.
(b) Seller shall pay to Buyer at the time set forth in Section 9 of the WSPP Agreement, the following damages in lieu of damages specified in Section 9, 21.3 and 22 of the WSPP Agreement: an amount equal to the positive difference, if any, between (i) the sum of (A) the actual cost paid by Buyer for any Replacement Capacity, plus (B) each Capacity Replacement Price (excluding amounts included in Section 4.7(a)) times the amount of the Designated RA Capacity neither provided by Seller nor purchased by Buyer pursuant to Section 4.7(a), and (ii) the Designated RA Capacity not provided for the applicable Showing Month times the Contract Price for that month. If Seller fails to pay these damages, then Buyer may offset those damages owed it against any future amounts it may owe to Seller under this Confirmation pursuant to the WSPP Agreement.
4.8 Indemnities for Failure to Deliver Contract Quantity Subject to any adjustments made pursuant to Section 4.4 and requests from Buyer pursuant to Section
4.6(b)(i), Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b), resulting from any of the following:
(a) Seller’s failure to provide any portion of the Designated RA Capacity; (b) Seller’s failure to provide notice of the non-availability of any portion of Designated RA Capacity as required under Sections 4.4 and 4.5;
(c) A Unit Scheduling Coordinator’s failure to timely submit Supply Plans that identify Buyer’s right to the Designated RA Capacity purchased hereunder; or DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
10 (d) A Unit Scheduling Coordinator’s failure to submit accurate Supply Plans that identify Buyer’s right to the Designated RA Capacity purchased hereunder.
With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or costs, or fails to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation.
4.9 Monthly RA Capacity Payment
In accordance with the terms of Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears after the applicable Showing Month. Each Unit's Monthly RA Capacity Payment shall be equal to the product of (a) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity actually delivered by Seller to Buyer for the Monthly Delivery Period, and (c) 1,000; provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.6 at the time of the CAISO filing for the respective Showing Month. The final product of this Monthly RA Capacity Payment calculation shall be rounded to the nearest penny (i.e., two decimal places). Seller shall deliver invoices to the address(es) specified herein; provided, however, that changes to invoice, payment, wire transfer and other banking information must be made in writing and delivered via certified mail and shall include contact information for an authorized person who is available by telephone to verify the authenticity of such requested changes.
RA CAPACITY PRICE TABLE
Contract
Year/Month
RA Capacity Price
($/kW-month)
4.10 Allocation of Other Payments and Costs
Seller may retain any revenues it may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) capacity revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, FCR Showing, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Buyer acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. The Parties acknowledge and agree that any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (c) above). In accordance with Section 4.9 of this Confirmation DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
11 and Section 9 of the WSPP Agreement, all such revenues received by Seller, or a Unit’s SC, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Buyer does not receive, and Seller shall pay such revenues to Buyer if the Unit’s SC, owner, or operator fails to remit those revenues to Buyer. If Seller fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to Section 9 of the WSPP Agreement against any future amounts it may owe to Seller under this Confirmation.
5. CAISO OFFER REQUIREMENTS
During the Delivery Period, except to the extent any Unit is in an Outage, or is affected by an Uncontrollable Force that results in a partial or full Outage of that Unit, Seller shall either schedule or cause the Unit’s Scheduling Coordinator to schedule with, or make available to, the CAISO each Unit’s Designated RA Capacity in compliance with the Tariff, and shall perform all, or cause the Unit’s Scheduling Coordinator, owner, or operator, as applicable, to perform all obligations under the Tariff that are associated with the sale of Designated RA Capacity hereunder. Buyer shall have no liability for the failure of Seller or the failure of any Unit’s Scheduling Coordinator, owner, or operator to comply with such Tariff provisions, including any penalties or fines imposed on Seller or the Unit’s Scheduling Coordinator, owner, or operator for such noncompliance.
6. RESERVED CAPACITY AND SUBSTITUTE CAPACITY
6.1 For any Showing Month, no later than three (3) Business Days before the applicable Compliance Showing deadline, Buyer may designate 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 that Showing Month (“Reserved Capacity”).
6.2 Subject to Section 6.3, all Reserved Capacity shall be treated as Designated RA Capacity actually delivered under Section 4.6(b) for purposes of calculating the Monthly RA Capacity Payment.
6.3 In any Showing Month in which Buyer has designated Reserved Capacity, Buyer may request, in writing, that Seller make the Reserved Capacity available for Buyer’s use as Substitute Capacity within the respective Showing Month (“Substitute Capacity Request”) with the following schedule. (a) For Buyer’s Substitute Capacity Requests that are to be scheduled with CAISO prior to the Showing Month (e.g., through the CAISO RA Substitute Capacity Assessment), the Substitute Capacity Request shall be received by Seller at least two (2) Business Days prior to the applicable CAISO scheduling deadline. Seller shall, or shall cause the Unit’s Scheduling Coordinator to, comply with Buyer’s request under this Section 6.3, provided that to the extent Seller is unable to provide the requested Substitute Capacity from the Unit due to a forced outage of the Unit, including as a result of an Uncontrollable Force, Seller shall not be liable for any amounts under Sections 4.7 and 4.8.
(b) For Buyer’s Substitute Capacity Requests that are to be scheduled with CAISO after the commencement of the Showing Month, the Substitute Capacity Request shall be received by Seller at least five (5) Business Days before Buyer submits its Substitute Capacity in CIRA. Seller shall, or shall cause the Unit’s Scheduling Coordinator to, comply with Buyer’s request under this Section 6.3, provided that to the extent Seller is unable to provide the requested Substitute Capacity from the Unit due to a forced outage of the Unit, including as a result of an Uncontrollable Force, Seller shall not be liable for any amounts under Sections 4.7 and 4.8.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
12 6.4 Nothing in this Article 6 changes any of Seller or Buyer’s rights or obligations under this Confirmation with respect to Contract Quantity not designated as Reserved Capacity.
7. OTHER BUYER AND SELLER COVENANTS
7.1 Buyer and Seller shall, throughout the Delivery Period, take all commercially reasonable actions and execute any and all documents or instruments reasonably necessary to ensure Buyer's right to the use of the Contract Quantity for the sole benefit of Buyer's RAR, LAR and/or FCR, as applicable, or that of a Subsequent Buyer under Article 10. Such commercially reasonable actions (neither Party shall be required to spend more than $10,000 in total under the Agreement in support of such actions) shall include, without limitation:
(a) Cooperating with and providing, and in the case of Seller causing each Unit’s Scheduling Coordinator, owner, or operator to cooperate with and provide requested supporting documentation to the CAISO, the CPUC, or any other Governmental Body responsible for administering RAR, LAR and/or FCR under Applicable Laws, to certify or qualify the Contract Quantity as RA Capacity and Designated RA Capacity. Such actions shall include, without limitation, providing information requested by the CAISO, the CPUC, or by an LRA having jurisdiction, to demonstrate for each month of the Delivery Period the ability to deliver the Contract Quantity from each Unit to the CAISO Controlled Grid for the minimum hours required to qualify as RA Capacity, and providing information requested by the CPUC, the CAISO or other Governmental Body having jurisdiction to administer RAR, LAR or FCR to demonstrate that the Contract Quantity can be delivered to the CAISO Controlled Grid, pursuant to “deliverability” standards established by the CAISO, or other Governmental Body having jurisdiction to administer RAR, LAR and/or FCR; and (b) Subject to Section 4.4, negotiating in good faith to make necessary amendments, if any, to this Confirmation to conform this Transaction to subsequent clarifications, revisions, or decisions rendered by the CPUC, CAISO, FERC, or other Governmental Body having jurisdiction to administer RAR, LAR and FCR, in each case occurring after the Confirmation Effective Date, so as to maintain the benefits of the bargain struck by the Parties on the Confirmation Effective Date.
7.2 Seller represents, warrants and covenants to Buyer that, throughout the Delivery Period:
(a) Seller owns or has the exclusive right to the RA Capacity sold under this Confirmation from each Unit, and shall furnish Buyer, CAISO, CPUC or other jurisdictional LRA, or other Governmental Body with such evidence as may reasonably be requested to demonstrate such ownership or exclusive right;
(b) No portion of the Contract Quantity has been committed by Seller to any third party in order to satisfy RAR, LAR, FCR or such analogous capacity obligations in CAISO markets, other than pursuant to an RMR Agreement between the CAISO and either Seller or the Unit’s owner or operator;
(c) No portion of the Contract Quantity has been committed by Seller in order to satisfy RAR, LAR, FCR, or analogous capacity obligations in any non-CAISO market; (d) Each Unit is connected to the CAISO Controlled Grid, is within the CAISO Control Area, or is under the control of CAISO;
(e) The owner or operator of each Unit is obligated to maintain and operate each Unit using Good Utility Practice and, if applicable, General Order 167 as outlined by the CPUC in the Enforcement of Maintenance and Operation Standards for Electric Generating Facilities DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
13 Adopted May 6, 2004, and is obligated to abide by all Applicable Laws in operating such Unit; provided, that the owner or operator of any Unit is not required to undertake capital improvements, facility enhancements, or the construction of new facilities; (f) The owner or operator of each Unit is obligated to comply with Applicable Laws, including the Tariff, relating to RA Capacity and, as applicable, RAR, LAR and/or FCR; (g) If Seller is the owner of any Unit, the respective cumulative sums of LAR Attributes, RAR Attributes, and FCR Attributes that Seller has sold, assigned or transferred for any Unit does not exceed that Unit’s RA Capacity;
(h) With respect to the RA Capacity provided under this Confirmation, Seller shall, and each Unit’s SC is obligated to, comply with Applicable Laws, including the Tariff, relating to RA Capacity, and RAR, LAR and FCR;
(i) Seller shall notify the SC of each Unit that Seller has transferred the Designated RA Capacity to Buyer, and the SC is obligated to deliver the Supply Plans in accordance with the Tariff;
(j) Seller shall notify the SC of each Unit that Seller is obligated to cause each Unit’s SC to provide to the Buyer, by the Notification Deadline, the Designated RA Capacity of each Unit that is to be submitted in the Supply Plan associated with this Agreement for the applicable period; and
(k) Seller shall notify each Unit’s SC that Buyer is entitled to the revenues set forth in Section
4.10 of this Confirmation, and such SC is obligated to promptly deliver those revenues to Buyer, along with appropriate documentation supporting the amount of those revenues.
8. ASSIGNMENT
Neither Party may voluntarily assign its rights under this Transaction without the prior written consent of the other Party; provided, however, that notwithstanding anything in the WSPP Agreement to the contrary, such consent shall not be unreasonably withheld, conditioned, or delayed if the proposed assignee has a Credit Rating that is at least investment grade or its creditworthiness is otherwise reasonably satisfactory.
9. CONFIDENTIALITY
The Parties agree that Buyer may disclose information regarding this Transaction to any Governmental Body, the CPUC, the CAISO or any LRA having jurisdiction as necessary to support its LAR Showings, RAR Showings, and/or FCR Showings, as applicable, and Seller may disclose information regarding this Transaction to the SC of each Unit in order for such SC to timely submit accurate Supply Plans. Buyer may also disclose to any Subsequent Buyer whatever information regarding this Transaction is commercially reasonable for such party to evaluate the re-sale; provided that any Subsequent Buyer agrees in writing to maintain the confidentiality of such information consistent with this Section 9. Upon request or demand of any third person or entity not a Party hereto to Buyer pursuant to the California Public Records Act for production, inspection and/or copying of confidential information regarding this Transaction, Buyer will as soon as practical notify Seller in writing via email that such request has been made. Seller will be responsible for taking whatever legal steps are necessary to prevent Buyer’s release of such information to the third party. Seller acknowledges that Buyer is a public agency subject to the requirements of the California Public Records Act (Cal. Gov. Code section 6250 et seq.).
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14 10.
BUYER’S RE-SALE OF PRODUCT
(a) Buyer may re-sell all or a portion of the Contract Quantity of Product hereunder; provided, however, that (i) any Subsequent Buyer assumes all of Buyer’s obligations and liabilities hereunder, and (ii) any such re-sale does not increase Seller’s obligations or liabilities hereunder. Seller will, or will cause the Unit’s SC, to follow Buyer’s instructions with respect to providing such resold Product to Subsequent Buyers, to the extent such instructions are consistent with Seller’s obligations under this Confirmation. Seller will, and will cause the Unit’s SC, to take all commercially reasonable actions and execute all documents or instruments reasonably necessary to allow such Subsequent Buyers to use such resold Product in a manner consistent with Buyer’s rights under this Confirmation. If Buyer incurs any liability to a Subsequent Buyer due to the failure of Seller or the Unit’s SC to comply with this Confirmation, Seller will be liable to Buyer for the same amounts Seller would have owed Buyer under this Confirmation if Buyer had not resold the Product. If Seller incurs any liability to a Subsequent Buyer due to the failure of Buyer or the Subsequent Buyer to comply with this Confirmation, Buyer will be liable to Seller for the same amounts Buyer would have owed Supplier under this Confirmation if Buyer had not resold the Product.
(b) Buyer will notify Seller in writing of any resale of Product and the Subsequent Buyer no later than two (2) Business Days before the Notification Deadline for the Showing Month.
Buyer will notify Seller of any subsequent changes or further resales no later than two (2) Business Days before the Notification Deadline for the Showing Month. Seller agrees, and agrees to cause the Unit’s SC, to: (i) follow Buyer’s reasonable instructions with respect to providing such resold Product to Subsequent Buyers of such resold Product; and (ii) take all commercially reasonable actions and execute any and all documents or instruments reasonably necessary to allow such Subsequent Buyers to use such resold Product. (c) If CAISO or CPUC develops a centralized capacity market, Buyer will have exclusive rights to direct Seller to offer, bid, or otherwise submit the applicable Contract Quantity of Product for each day during the Delivery Period provided to Buyer pursuant to this Confirmation for re-sale in such market, and Seller and the Unit’s SC shall comply with Buyer’s direction and Buyer shall retain and receive all revenues from such re-sale. Seller agrees to take all commercially reasonable actions to assist Buyer with such re-sale, provided that Seller’s obligation to assist shall not require modification of any of the commercial terms of this Confirmation.
11. MARKET BASED RATE AUTHORITY
Seller agrees, in accordance with Federal Energy Regulatory Commission (FERC) Order No. 697, to, upon request of Buyer, submit a letter of concurrence in support of any affirmative statement by Buyer that this contractual arrangement does not transfer “ownership or control of generation capacity” from Seller to Buyer as the term “ownership or control of generation capacity” is used in 18 CFR Section 35.42. Seller also agrees that it will 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 Buyer.
12. COLLATERAL REQUIREMENTS
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.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
15 13.
OTHER WSPP AGREEMENT CHANGES
13.1 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:
“(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 DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
16 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
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:
“34.5LIMITATION 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 DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
17 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), 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.”
13.2 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.
13.3 No Recourse to Members of Buyer
Buyer is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) and is a public entity separate from its constituent members. Buyer will solely be responsible for all debts, obligations and liabilities accruing and arising out of this Confirmation. Seller will have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer's constituent members, or the officers, directors, advisors, contractors, consultants or employees of Buyer or Buyer’s constituent members, in connection with this Confirmation.
13.4 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.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
18 13.5 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.
ACKNOWLEDGED AND AGREED TO AS OF THE CONFIRMATION EFFECTIVE DATE
SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California joint powers
authority
HIGH DESERT POWER PROJECT, LLC
a California limited liability company
By: ___________________________
Name: _________________________
Title: __________________________
By: ____________________________
Name: _________________________
Title: ___________________________
Jim Suehr
Vice President & Secretary
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E Girish Balachandran
CEO
DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
x DocuSigned by:
'
5CA64B9AC4C24C3...
19 Appendix A
Shown Unit Information
Name: Middle Fork and Ralston PRP
Location:
CAISO Resource ID: MDFKRL_2_PROJCT
Unit SCID: MFP1
Unit NQC: 210
Unit EFC: NA
Resource Type: Natural Gas
Resource Category (MCC 1, 2, 3 or
4): 4
Flexible Capacity Category (1, 2 or
3): NA
Path 26 (North or South): North
Local Capacity Area (if any, as of
Confirmation Effective Date): n/a
Deliverability restrictions, if any, as
described in most recent CAISO
deliverability assessment:
none
Run Hour Restrictions: None.
DocuSign Envelope ID: 83371B4E-DAF9-49C4-9B85-0FC751F0355E DocuSign Envelope ID: 391A8226-41F9-4E7C-8F09-64001347BCF6 Appendix A High Desert Power Project, LLC
20 Appendix B
Notice Information
Seller: Silicon Valley Clean Energy
Authority
Buyer: High Desert Power Project, LLC
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1 MASTER POWER PURCHASE AND SALE AGREEMENT
CONFIRMATION LETTER – RESOURCE ADEQUACY
BETWEEN
SHELL ENERGY NORTH AMERICA (US), L.P.
AND
SILICON VALLEY CLEAN ENERGY AUTHORITY
This Confirmation Letter ("Confirmation") confirms the Transaction between Shell Energy North America (US), L.P., a Delaware limited partnership (“Buyer”) and Silicon Valley Clean Energy Authority, a California joint powers authority (“Seller”), and each individually a “Party” and together the “Parties”, dated as of November 15, 2023 (the “Confirmation Effective Date”) in which Seller agrees to provide to Buyer the right to the Product, as such term is defined in Article 3 of this Confirmation.
This Transaction is governed by the Edison Electric Institute Master Power Purchase and Sale Agreement between the Parties, effective as of November 28, 2016, along with any annexes (including Paragraph 10 of the Collateral Annex, as applicable) and amendments thereto (collectively, the “Master Agreement”).
The Master Agreement and this Confirmation shall be collectively referred to herein as the “Agreement”.
Capitalized terms used but not otherwise defined in this Confirmation have the meanings ascribed to them in the Master Agreement or the Tariff (defined herein below).
ARTICLE 1. DEFINITIONS
1.1 “Alternate Capacity” means any replacement Product which Seller has elected to provide to Buyer in accordance with the terms of Section 4.5.
1.2 “Applicable Laws” means any law, rule, regulation, order, decision, judgment, or other legal or regulatory determination by any Governmental Body having jurisdiction over one or both Parties or this Transaction, including without limitation, the Tariff.
1.3 “Availability Incentive Payments” shall mean Availability Incentive Payments as defined in FERC filing ER09-1064 or such other similar term as modified and approved by FERC thereafter to be incorporated in the Tariff or otherwise applicable to CAISO.
1.4 “Availability Standards” shall mean the availability standards set forth in Section 40.9 of the Tariff.
1.5 “Buyer” has the meaning specified in the introductory paragraph hereof.
1.6 “CAISO” means the California Independent System Operator Corporation or its successor.
1.7 “Capacity Replacement Price” means (a) the price actually paid for any Replacement Capacity purchased by Buyer pursuant to Section 4.7 hereof, plus costs reasonably incurred by Buyer in purchasing such Replacement Capacity, or (b) absent a purchase of any Replacement Capacity, the market price for such Designated RA Capacity not provided at the Delivery Point. Buyer shall determine such market prices in a commercially reasonable manner. For purposes of Section 1.51 of the Master Agreement, “Capacity Replacement Price” shall be deemed to be the “Replacement Price” as used in the Master Agreement.
1.8 “Confirmation” has the meaning specified in the introductory paragraph hereof.
1.9 “Confirmation Effective Date” has the meaning specified in the introductory paragraph hereof.
1.10 “Contingent Firm RA Product” has the meaning specified in Section 3.2 hereof.
1.11 “Contract Price” means, for any Monthly Delivery Period, the price for such Monthly Delivery Period as specified in the “RA Capacity Price Table” set forth in Section 4.9.
1.12 “Contract Quantity” means, with respect to any particular Showing Month of the Delivery Period, the amount of Product (in MWs) set forth in the “Contract Quantity Table” in Section 4.3 which Seller has agreed to provide to Buyer from the Unit for such Showing Month.
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2 1.13 “CPUC Decisions” means, CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-06-064, 06-07- 031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024, 14-06-050 and subsequent decisions related to resource adequacy, as may be amended from time to time by the CPUC.
1.14 “CPUC Filing Guide” means the annual document issued by the CPUC which sets forth the guidelines, requirements and instructions for LSE’s to demonstrate compliance with the CPUC’s resource adequacy program.
1.15 “Delivery Period” has the meaning specified in Section 4.1 hereof.
1.16 “Delivery Point” has the meaning specified in Section 4.2 hereof.
1.17 “Designated RA Capacity” shall be equal to, for each day during any particular Showing Month of the Delivery Period, the Contract Quantity of Product for such Showing Month, including the amount of Contract Quantity that Seller has elected to provide Alternate Capacity with respect to, minus any reductions to Contract Quantity specified in Section 4.4 with respect to which Seller has not elected to provide Alternate Capacity.
1.18 “Effective Flexible Capacity” has the meaning specified for such term in the Tariff.
1.19 “Flexible Capacity Requirements” or “FCR” means the flexible capacity requirements established for LSEs by the CPUC pursuant to the CPUC Decisions, or by an LRA or other Governmental Body having jurisdiction.
1.20 “Flexible RA Product” means Designated RA Capacity consisting of FCR Attributes, and, if applicable, LAR Attributes and/or RAR Attributes.
1.21 “FCR Attributes” means, with respect to a Unit, any and all flexible resource adequacy attributes, that can be counted toward an LSE’s FCR, as they are identified from time to time by the CPUC Decisions, the Tariff, an LRA or other Governmental Body having jurisdiction, exclusive of any LAR Attributes and RAR Attributes.
1.22 “FCR Showing” means the FCR compliance showings (or similar or successor showings) an LSE is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO) pursuant to the CPUC Decisions and the Tariff, or to an LRA having jurisdiction over the LSE.
1.23 “Generic RA Product” means Designated RA Capacity consisting of RAR Attributes and, if applicable, LAR Attributes, but not FCR Attributes.
1.24 “Governmental Body” means (i) any federal, state, local, municipal or other government; (ii) 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 (iii) any court or governmental tribunal.
1.25 “LAR” means local area reliability, which is any program of localized resource adequacy requirements established for jurisdictional LSEs by the CPUC pursuant to the CPUC Decisions, or by another LRA having jurisdiction over the LSE, as implemented in the Tariff. LAR may also be known as local resource adequacy, local RAR, or local capacity requirement in other regulatory proceedings or legislative actions.
1.26 “LAR Attributes” means, with respect to a Unit, any and all resource adequacy attributes (or other locational attributes related to system reliability), as they are identified from time to time by the CPUC Decisions, CAISO, LRA, or other Governmental Body having jurisdiction, associated with the physical location or point of electrical interconnection of such Unit within the CAISO Control Area, that can be counted toward LAR, exclusive of any RA Attributes which are not associated with where in the CAISO Control Area the Unit is physically located or electrically interconnected.
For clarity, it should be understood that if the CAISO, LRA, or other Governmental Body, defines new or re-defines existing local areas, then such change will not result in a change in payments made pursuant to this Transaction.
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3 1.27 “LAR Showings” means the LAR compliance showings (or similar or successor showings) an LSE is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO) pursuant to the CPUC Decisions, or to an LRA having jurisdiction over the LSE.
1.28 “LRA” has the meaning set for in the Tariff for the term “Local Regulatory Authority”.
1.29 “LSE” has the meaning specified in the Tariff for the term “Load Serving Entity”.
1.30 “Master Agreement” has the meaning specified in the introductory paragraph hereof.
1.31 “Monthly Delivery Period” means each calendar month during the Delivery Period and shall correspond to each Showing Month.
1.32 “Net Qualifying Capacity” has the meaning set forth in the Tariff.
1.33 “Non-Excusable Event” means any event, other than a Planned Outage and those events described under the definition of "Unit Firm" in the Master Agreement that excuse Seller's performance, that causes Seller to fail to perform its obligations under this Confirmation, including, without limitation, any such event resulting from (a) the negligence of the owner, operator or Scheduling Coordinator of a Unit, or (b) Seller’s failure to comply, or failure to cause the owner, operator or Scheduling Coordinator of the Units to comply, with the terms of the Tariff with respect to the Units providing RA Attributes, Flexible RA Attributes or LAR Attributes, as applicable.
1.34 “Non-Availability Charges” are as defined in the Tariff.
1.35 “Notification Deadline” means, for each Showing Month, the date that is fifteen (15) Business Days before the earlier of the relevant deadlines for (a) the corresponding RAR Showings, FCR Showings and/or LAR Showings for such Showing Month, and (b) the Supply Plan filings applicable to that Showing Month.
1.36 “Outage” means any CAISO approved disconnection, separation, or reduction in the capacity of any Unit that relieves all or part of the offer obligations of the Unit consistent with the Tariff. For the avoidance of doubt, Outage shall be deemed to include Planned Outage (defined below).
1.37 “Planned Outage” means, subject to and as further described in the Tariff, 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.
1.38 “Product” has the meaning specified in Article 3 hereof.
1.39 “RA Capacity” means the qualifying and deliverable capacity of the Unit for RAR and, if applicable, LAR, and FCR purposes for the Delivery Period, as determined by the CAISO or other Governmental Body authorized to make such determination under Applicable Laws. RA Capacity encompasses the applicable RA Attributes, and if applicable, LAR Attributes and FCR Attributes of the capacity provided by a Unit.
1.40 “RA Capacity Payment” has the meaning specified in Section 4.9 hereof.
1.41 “RAR” means the resource adequacy requirements, exclusive of LAR established for LSEs by the CPUC pursuant to the CPUC Decisions, or by an LRA or other Governmental Body having jurisdiction.
1.42 “RAR Attributes” means, with respect to a Unit, any and all resource adequacy attributes, as identified and existing as of the Confirmation Date by the Tariff, CPUC Decisions, LRA, or any Governmental Body having jurisdiction that can be counted toward RAR, exclusive of any LAR Attributes and FCR Attributes.
1.43 “RAR Showings” means the RAR compliance showings (or similar or successor showings) an LSE is required to make to the CPUC (and/or, to the extent authorized by the CPUC, to the CAISO), pursuant to the Tariff or CPUC Decisions, or to an LRA having jurisdiction.
1.44 “Replacement Capacity” has the meaning specified in Section 4.7 hereof.
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4 1.45 “Replacement Unit” means any generating unit having comparable RAR Attributes, LAR Attributes and, if applicable, FCR Attributes to the Unit(s), meeting the requirements for a Unit specified herein and meeting the requirements specified in Section 4.5.
1.46 “Resource Category” shall be as described in the CPUC Filing Guide, as such may be modified, amended, supplemented or updated from time to time.
1.47 “Scheduling Coordinator” has the same meaning as in the Tariff.
1.48 “Seller” has the meaning specified in the introductory paragraph hereof.
1.49 “Showing Month” shall be the calendar month during the Delivery Period that is the subject of the RAR Showing, LAR Showing, and/or FCR Showing, as applicable, as set forth in the CPUC Decisions or Tariff. For illustrative purposes only, the monthly RAR Showing made in June is for the Showing Month of August.
1.50 “Supply Plan” has the meaning specified in the Tariff.
1.51 “Tariff” means the tariff and protocol provisions of the CAISO, as amended or supplemented from time to time. For purposes of Article 5, the Tariff refers to the tariff and protocol provisions of the CAISO as they exist on the Confirmation Effective Date.
1.52 “Transaction” has the meaning specified in the introductory paragraph hereof.
1.53 “Unit” or “Units” shall mean the generation assets described in Article 2 hereof (including any Replacement Units), from which RA Capacity is provided by Seller to Buyer.
1.54 “Unit EFC” means the Effective Flexible Capacity set by the CAISO for the applicable Unit. If the CAISO adjusts the Unit EFC after the Confirmation Effective Date, then for the period in which the adjustment is effective, the Unit EFC shall be deemed the lessor of (i) the Unit EFC as of the Confirmation Effective Date, or (ii) the CAISO-adjusted Effective Flexible Capacity.
1.55 “Unit NQC” means the Net Qualifying Capacity set by the CAISO for the applicable Unit. If the CAISO adjusts the Net Qualifying Capacity of a Unit after the Confirmation Effective Date, then for the period in which the adjustment is effective, the Unit NQC shall be deemed the lesser of (i) the Unit NQC as of the Confirmation Effective Date, or (ii) the CAISO-adjusted Net Qualifying Capacity.
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5 ARTICLE 2. UNIT INFORMATION
Name Elk Hills Power
Location 4026 Skyline Road, Tupman,
CA
CAISO Resource ID ELKHIL_2_PL1X3
Unit SCID EMM2
Unit NQC 380 MWs
Unit EFC NA
Resource Type Natural Gas Fired
Resource Category (1, 2, 3 or 4) 4
Flexible RAR Category (1, 2 or 3) NA
Path 26 (North or South) North
Local Capacity Area (if any, as of
Confirmation Effective Date) NA
Deliverability restrictions, if any, as
described in most recent CAISO
deliverability assessment
None
Run Hour Restrictions None
ARTICLE 3. RESOURCE ADEQUACY CAPACITY PRODUCT
3.1 During the Delivery Period, Seller shall provide to Buyer, pursuant to the terms of this Confirmation, the Designated RA Capacity in accordance with the product types selected in Section 3.2 (the “Product”) and the Contract Quantity set forth in Section 4.3. The Product does not confer to Buyer any right to the electrical output from the Units, other than the right to include the Designated RA Capacity associated with the Contract Quantity in RAR Showings, LAR Showings, and/or FCR Showings, as applicable, and any other capacity or resource adequacy markets or proceedings as specified in this Confirmation. Specifically, no energy or ancillary services associated with any Unit is required to be made available to Buyer as part of this Transaction and Buyer shall not be responsible for compensating Seller for Seller’s commitments to the CAISO required by this Confirmation. Seller retains the right to sell any pursuant to the Tariff any RA Capacity from a Unit in excess of that Unit’s Contract Quantity and any RA Attributes, LAR Attributes or FCR Attributes not otherwise transferred, conveyed, or sold to Buyer under this Confirmation.
3.2 Product Type
Flexible RA Product
The Designated RA Capacity is a Flexible RA Product. For avoidance of doubt, the Flexible RA Product to be delivered by Seller to Buyer hereunder shall include the following Product attributes:
[ ] FCR Attributes with LAR Attributes
[ ] FCR Attributes with RAR Attributes
Generic RA Product
The Designated RA Capacity is a Generic RA Product. For avoidance of doubt, the Generic RA Product to be delivered by Seller to Buyer hereunder shall include the following Product attributes:
[X] RAR Attributes
[ ] LAR Attributes
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6 3.3 Delivery Obligation
Contingent Firm RA Product
Seller shall provide Buyer with Designated RA Capacity from the Units. If those Units are not able to provide the full amount of the Contract Quantity as a result of a Non-Excusable Event, then, subject to Section 4.4, Seller shall have the option to notify Buyer in writing by the Notification Deadline that either (a) Seller will not provide the full Contract Quantity 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. If Seller fails to provide Buyer with the Contract Quantity as a result of a Non-Excusable Event and has failed to notify Buyer in writing by the Notification Deadline that it will not provide the full Contract Quantity during the period of such non availability as provided in Section 4.4, then Seller shall be liable for damages and/or required to indemnify Buyer for any resulting penalties or fines pursuant to the terms of Sections 4.7 and
4.8 hereof. Notwithstanding anything herein to the contrary, if Seller provides less than the full amount of the Contract Quantity for any reason other than a Non-Excusable Event or in accordance with Section 4.4, and Seller provides notice of such by the Notification Deadline, Seller is not obligated to provide Buyer with Alternate Capacity or to indemnify Buyer for any resulting penalties or fines. The Product is a Contingent Firm RA Product, and with respect to this Contingent Firm RA Product, “Contingent Firm” shall have the same meaning as “Unit Firm” in the Master Agreement.
Firm RA Product
Seller shall provide Buyer with Designated RA Capacity from the Unit(s) in the amount of the Contract Quantity. If the Units are not available to provide the full amount of the Contract Quantity for any reason other than Force Majeure, including without limitation any Outage or any adjustment of the RA Capacity of any Unit, pursuant to Section 4.4, then, Seller shall provide Buyer with Designated RA Capacity from one or more Replacement Units pursuant to Section 4.5 hereof. If Seller fails to provide Buyer with replacement Designated RA Capacity from Replacement Units pursuant to Section 4.5, then Seller shall be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof.
ARTICLE 4. DELIVERY AND PAYMENT
4.1 Delivery Period
The Delivery Period shall be:
4.2 Delivery Point
The Delivery Point for each Unit shall be the CAISO Control Area, and if applicable, the LAR region in which the Unit is electrically interconnected.
4.3 Contract Quantity
The Contract Quantity for each Monthly Delivery Period shall be:
Contract Quantity Table
Contract Month / Year
Contract Quantity
(MWs)
4.4 Adjustments to Contract Quantity
(a) Planned Outages: If Seller is unable to provide the applicable Contract Quantity for all or a portion of a Showing Month due to a Planned Outage of a Unit, then Seller shall have the option, but not the obligation, upon written notice to Buyer by the Notification Deadline, to either (a) reduce the Contract Quantity in accordance with the Planned Outage for such portion of the Showing Month; or (b) provide Alternate Capacity up to the Contract Quantity for the applicable portion of such Showing Month.
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7 (b) Reductions in Unit NQC: If the Product is both (i) Generic RA Product, and (ii) Contingent Firm RA Product, then Seller’s obligation to deliver the applicable Contract Quantity for any Showing Month may also be reduced by Seller if the Unit experiences a reduction in Unit NQC as determined by the CAISO. If the Unit experiences such a reduction in Unit NQC then Seller has the option, but not the obligation, upon written notice to Buyer by the Notification Deadline, to provide the applicable Contract Quantity for such Showing Month from (i) the same Unit, provided the Unit has sufficient remaining and available Product, and/or (ii) from Replacement Units, provided, that in each case Seller provides and identifies such Replacement Units in accordance with Section 4.5. (c) If Product is both (i) Flexible RA Product specified under Section 3.2, and (ii) Contingent Firm RA Product specified under Section 3.3, then Seller’s obligation to deliver the applicable Contract Quantity for any Showing Month may also be reduced if the Unit experiences a reduction in Unit EFC or Unit NQC as determined by the CAISO. If the Unit experiences such a reduction in Unit EFC or Unit NQC, then Seller has the option, but not the obligation, to provide the applicable Contract Quantity for such Showing Month from (i) the same Unit, provided the Unit has sufficient remaining and available Product and/or (ii) Alternate Capacity up to the Contract Quantity.
4.5 Alternative Capacity and Replacement Units
(a) If Seller elects or is unable to provide the full Contract Quantity for any Showing Month for any reason, including, without limitation, due to one of the reasons specified in Section 4.4, or Seller desires to provide the Contract Quantity for any Showing Month from a different generating unit other than the Unit, then Seller, at no additional cost to Buyer, may provide Buyer with Alternate Capacity from one or more Replacement Units, with the total amount of Product provided to Buyer from the Unit and Replacement Units up to an amount equal to the Contract Quantity for the applicable Showing Month; provided that in each case, Seller shall notify Buyer in writing of such Replacement Units no later than the Notification Deadline. If Seller notifies Buyer in writing as to the particular Replacement Units and such Units meet the requirements of this Section 4.5, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for the remaining portion of that Showing Month. that Showing Month and Seller shall not be liable to Buyer or any other party for damages, including any cover costs, and/or required to indemnify Buyer for costs, penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if and only if Seller has provided Buyer with timely notice pursuant to this Section 4.5(a) of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month.
(b) If Seller is unable to provide the full Contract Quantity for any Showing Month for any reason, including, without limitation, due to one of the reasons specified in Section 4.4 and Seller does not provide Alternate Capacity in an amount equal to that which allows Seller to provide the full Contract Quantity for that Showing Month, then Buyer may, but shall not be required to, purchase Replacement Capacity.
4.6 Delivery of Product
Seller shall provide Buyer with the Designated RA Capacity of Product for each Showing Month consistent with the following:
Seller shall, on a timely basis, submit, or cause the Unit’s Scheduling Coordinator to submit, Supply Plans to identity and confirm the Designated RA Capacity provided to Buyer for each Showing Month so that the total amount of Designated RA Capacity identified and confirmed for such Showing Month equals the Designated RA Capacity, unless specifically requested not to do so by Buyer.
4.7 Damages for Failure to Provide Designated RA Capacity If Seller fails to provide Buyer with the Designated RA Capacity of Product for any Showing Month, and such failure is not excused under the terms of the Confirmation, then the following shall apply:
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8 (a) Buyer may, but shall not be required to, replace any portion of the Designated RA Capacity not provided by Seller with capacity having equivalent RA Attributes, LAR Attributes and/or FCR Attributes as the Designated RA Capacity not provided by Seller; provided, however, that if any portion of the Designated RA Capacity that Buyer is seeking to replace is Designated RA Capacity having solely RAR Attributes and no LAR Attributes or FCR Attributes, and no such RA Capacity is available, then Buyer may replace such portion of the Designated RA Capacity with capacity having any applicable FCR Attributes and/or LAR Attributes (“Replacement Capacity”). Buyer may enter into purchase transactions with one or more parties to replace any portion of Designated RA Capacity not provided by Seller so long as such transactions are done at prevailing market prices. Additionally, Buyer may enter into one or more arrangements to repurchase its obligation to sell and deliver capacity to another party, and, to the extent such transactions are done at prevailing market prices, such arrangements shall be considered equivalent to the procurement of Replacement Capacity. Buyer shall use commercially reasonable efforts to minimize damages when procuring any Replacement Capacity.
(b) Seller shall pay to Buyer an amount equal to the positive difference, if any, between (i) the sum of (A) the Replacement Capacity times the Capacity Replacement Price, and (B) the Designated RA Capacity not provided by Seller (less any Replacement Capacity) times the Capacity Replacement Price; and (ii) the Designated RA Capacity not provided by Seller times the Contract Price for that month. If Seller fails to pay these damages, then Buyer may in addition to any other remedies that may be available to Buyer, offset those damages owed it against any future amounts it may owe to Seller under this Confirmation pursuant to Article 6 of the Master Agreement. Seller will not be in breach of this Confirmation for any failure to provide any Designated RA Capacity so long as Seller complies with the provisions of this Section 4.7.
4.8 Indemnities for Failure to Deliver Contract Quantity Subject to any adjustments made pursuant to Section 4.4, Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CAISO, resulting from any of the following:
(a) Seller’s failure to provide any portion of the Designated RA Capacity if such failure is not excused under the terms of the Product or by Buyer’s failure to perform; (b) Seller’s failure to provide notice of the non-availability of any portion of Designated RA Capacity as required under Sections 4.5; or
(c) A Unit Scheduling Coordinator’s failure to timely submit accurate Supply Plans that identify Buyer’s right to the Designated RA Capacity purchased hereunder.
With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or costs, or fails to reimburse Buyer for those penalties, fines or costs, then Buyer may, in addition to any other remedies that may be available to Buyer, offset those penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation.
4.9 RA Capacity Payment
In accordance with the terms of Article 6 of the Master Agreement, Buyer shall make an RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. The RA Capacity Payment shall be equal to the sum for each day during the Showing Month of the product of (a) the applicable Contract Price for such Showing Month, multiplied by (b) the Designated RA Capacity for the Monthly Delivery Period, multiplied by (c) 1,000. The final product of this RA Capacity Payment calculation shall be rounded to the nearest penny (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month.
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9 RA Capacity Price Table
Contract
Month / Year Contract Price
4.10 Allocation of Other Payments and Costs
Seller shall be entitled to receive and retain all revenues that Buyer is not expressly entitled to receive pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, FCR Showing, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Buyer acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. The Parties acknowledge and agree that any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues.
ARTICLE 5. CAISO OFFER REQUIREMENTS
During the Delivery Period, except to the extent any Unit is in an Outage, or is affected by an event of Force Majeure that results in a partial or full outage of that Unit, Seller is responsible for either scheduling or causing the Unit’s Scheduling Coordinator to schedule with, or make available to, the CAISO each Unit’s Designated RA Capacity in compliance with the Tariff, and performing, or causing the Unit’s Scheduling Coordinator, owner, or operator, as applicable, to perform all obligations under the Tariff that are associated with the sale of Designated RA Capacity hereunder. Buyer shall have no liability for the failure of Seller or the failure of any Unit’s Scheduling Coordinator, owner, or operator to comply with such Tariff provisions, including any penalties or fines imposed on Seller or the Unit’s Scheduling Coordinator, owner, or operator for such noncompliance.
ARTICLE 6. CHANGE IN LAW
If any statutes, rules, regulations, permits or authorizations are enacted, amended, granted or revoked which have the effect of changing the transfer and sale procedure for Product set forth in this Confirmation so that the implementation of this Confirmation becomes impossible or impracticable, or if a new product that is a derivative of the Product(s) contracted for herein is created, the Parties hereto agree to negotiate in good faith to amend this Confirmation, to conform with such new statutes, regulations, or rules in order to maintain the original intent of the Parties under this Confirmation or to provide Buyer with Product pursuant to another program if possible; provided, however, that neither Party shall be obligated to enter into any such amendment except in its sole discretion.
ARTICLE 7. OTHER BUYER AND SELLER COVENANTS
7.1 Further Assurances
Buyer and Seller shall, throughout the Delivery Period, take all commercially reasonable actions and execute any and all documents or instruments reasonably necessary to ensure Buyer’s right to the use of DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A DocuSign Envelope ID: FE086D13-C422-4291-A9DD-C5A2933123DB Appendix A Shell - Sale
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10 the Contract Quantity for the sole benefit of Buyer’s applicable RAR, LAR and/or FCR, as applicable, including, without limitation:
(a) Cooperating with and providing, and in the case of Seller causing each Unit’s Scheduling Coordinator, owner, or operator to cooperate with and provide requested supporting documentation to the CAISO, the CPUC, or any other Governmental Body responsible for administering RAR, LAR, and/or FCR under Applicable Laws, to certify or qualify the Contract Quantity as RA Capacity and Designated RA Capacity. Such actions shall include, without limitation, providing information requested by the CAISO, CPUC, or by an LRA having jurisdiction, to demonstrate for each month of the Delivery Period the ability to deliver the Contract Quantity from each Unit to the CAISO Controlled Grid for the minimum hours required to qualify as RA Capacity, and providing information requested by the CPUC, the CAISO or other Governmental Body having jurisdiction to administer the applicable RAR, LAR and FCR to demonstrate that the Contract Quantity can be delivered to the CAISO Controlled Grid pursuant to the “deliverability” standards established by the CAISO or other Governmental Body having jurisdiction to administer RAR, LAR and/or FCR; and
(b) Negotiating in good faith to make necessary amendments, if any, to this Confirmation, which remain subject to agreement of such Parties, in each Party’s sole discretion, to conform this Transaction to subsequent clarifications, revisions, or decisions rendered by the CPUC, FERC, or other Governmental Body having jurisdiction to administer the applicable RAR or FCR so as to maintain the purpose and intent of the Transaction agreed to by the Parties on the Confirmation Effective Date.
7.2 Seller Representations and Warranties
Seller represents, warrants and covenants to Buyer that, throughout the Delivery Period:
(a) Seller owns or has the exclusive right to the RA Capacity sold under this Confirmation from each Unit, and shall furnish Buyer, the CAISO, CPUC, or other jurisdictional LRA of or other Governmental Body with such evidence as may reasonably be requested to demonstrate such ownership or exclusive right;
(b) No portion of the Contract Quantity has been committed by Seller to any third party in order to satisfy RAR, LAR, FCR or analogous obligations in CAISO markets, other than pursuant to an RMR Agreement between the CAISO and either Seller or the Unit’s owner or operator;
(c) No portion of the Contract Quantity has been committed by Seller in order to satisfy RAR, LAR, FCR, or analogous obligations in any non-CAISO market; (d) Each Unit is connected to the CAISO Controlled Grid, is within the CAISO Control Area, or is under the control of CAISO;
(e) The owner or operator of each Unit is obligated to comply with Applicable Laws, including the Tariff, relating to RA Capacity, RAR, LAR and FCR;
(f) If Seller is the owner of any Unit, the cumulative amounts of LAR Attributes, RAR Attributes and FCR Attributes that Seller has sold, assigned or transferred for any Unit does not exceed that Unit’s RA Capacity;
(g) With respect to the RA Capacity provided under this Confirmation, Seller shall, and each Unit’s Scheduling Coordinator is obligated to, comply with Applicable Laws, including the Tariff, relating to RA Capacity, RAR, LAR and FCR;
(h) Seller has notified the Scheduling Coordinator of each Unit that Seller has transferred the Designated RA Capacity to Buyer, and the Scheduling Coordinator is obligated to deliver the Supply Plans in accordance with the Tariff;
(i) Seller has notified the Scheduling Coordinator of each Unit that Seller is obligated to cause each Unit’s Scheduling Coordinator to provide to Buyer, no later than the Notification DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A DocuSign Envelope ID: FE086D13-C422-4291-A9DD-C5A2933123DB Appendix A Shell - Sale
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11 Deadline, of the Designated RA Capacity of each Unit that is to be submitted in the Supply Plan associated with this Agreement for the applicable period; and (j) Seller has notified each Unit’s Scheduling Coordinator that Buyer is entitled to the revenues set forth in Section 4.10 of this Confirmation, and such Scheduling Coordinator is obligated to promptly deliver those revenues to Buyer, along with appropriate documentation supporting the amount of those revenues.
ARTICLE 8. CONFIDENTIALITY
Notwithstanding any agreement or obligation of confidentiality or non-disclosure between Buyer and Seller, the Parties agree that Buyer may disclose the Designated RA Capacity under this Transaction to any Governmental Body, the CPUC, the CAISO or any LRA having jurisdiction in order to support its LAR Showings, RAR Showings and/or FCR Showings, as applicable, and Seller may disclose the transfer of the Designated RA Capacity under this Transaction to the SC of each Unit in order for such SC to timely submit accurate Supply Plans. In addition, If Buyer becomes legally compelled (by interrogatories, requests for information or documents, subpoenas, summons, civil investigative demands, or similar processes or otherwise in connection with any litigation or to comply with any applicable law, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator rule, or a request to Buyer under the California Public Records Act (California Government Code Section 6250 et seq.)) to disclose any confidential information of Seller, Buyer may do so after providing Seller with prompt notice so that Seller, at its sole expense, may seek an appropriate protective order or other appropriate remedy against disclosure. Notwithstanding anything to the contrary in Section
10.11 of the Master Agreement, Buyer may make portions of this Confirmation available to the public as part of Buyer’s process of seeking approval from its Board of Directors for this Transaction.
ARTICLE 9. BUYER’S RE-SALE OF PRODUCT
Buyer may re-sell all or a portion of the Product hereunder. In the event of any such re-sale, Seller shall cause its Scheduling Coordinator to cooperate reasonably with Buyer and Buyer’s transferee (and their respective Scheduling Coordinators) to allow such transferee to utilize the re-sold Product.
ARTICLE 10. MARKET BASED RATE AUTHORITY
Upon Buyer’s written request, Seller shall, in accordance with Federal Energy Regulatory Commission (FERC) Order No. 697, submit a letter of concurrence in support of any affirmative statement by Buyer that this contractual arrangement does not transfer “ownership or control of generation capacity” from Seller to Buyer 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 Buyer.
ARTICLE 11. COLLATERAL REQUIREMENTS
The Parties further agree that for the purposes of calculating the Collateral Requirement pursuant to Paragraph 3 of the Collateral Annex, the Current Mark-to-Market Value for this Transaction is deemed to be zero.
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12 ACKNOWLEDGED AND AGREED TO AS OF THE CONFIRMATION EFFECTIVE DATE.
SHELL ENERGY NORTH AMERICA (US), L.P. SILICON VALLEY CLEAN ENERGY AUTHORITY By: By:
Name: Name:
Title: Title:
Date: Date:
Michael J. Yen
Confirmations Team Lead
November 15, 2023
DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A 11/15/2023
Girish Balachandran
CEO
DocuSign Envelope ID: FE086D13-C422-4291-A9DD-C5A2933123DB Appendix A Shell - Sale
x DocuSigned by:
5CA64B9AC4C24C3...
Confirmation for Bilateral Import Capability Transfer
This confirmation letter (“Confirmation”) confirms the transaction between Shell Energy North America (US), L.P., a Delaware limited partnership (“Seller”), and Silicon Valley Clean Energy Authority, a Pennsylvania limited liability company (“Buyer”), each individually a “Party” and together the “Parties”, effective as of November 15, 2023 (the “Confirmation Effective Date”) in which Seller agrees to sell and deliver, and Buyer agrees to purchase and receive, the Product, as such term is defined in Section 3 of this Confirmation (the “Transaction”).
This Transaction is governed by the Edison Electric Institute Master Power Purchase and Sale Agreement between the Parties, effective as of November 28, 2016, along with any annexes (including Paragraph 10 of the Collateral Annex, as applicable) and amendments thereto (collectively, the “Master Agreement”). The Master Agreement and this Confirmation shall be collectively referred to herein as the “Agreement”. Capitalized terms used but not otherwise defined in this Confirmation have the meanings ascribed to them in the Master Agreement or the Tariff (defined herein below).
1. Definitions
1.1 “Bilateral Import Capability Transfer” is the transfer of Remaining Import Capability from one Market Participant to another, as described in the Tariff.
1.2 “CAISO” means the California Independent System Operator Corporation, or any or any successor entity performing the same functions.
1.3 “CIRA” has the meaning in Section 3.3.
1.4 “CIRA System Failure” means a disruption in transfer of Product caused solely by the CIRA System that is not within the control of, or the result of the negligence of, either Party and which could not have been avoided by the exercise of due diligence.
1.5 “Confirmation” has the meaning specified in the introductory paragraph.
1.6 “Confirmation Effective Date” has the meaning specified in the introductory paragraph.
1.7 “Contract Price” has the meaning set forth in Section 4.2.
1.8 “Contract Quantity” has the meaning set forth in Section 3.4.
1.9 “CPUC” means the California Public Utilities Commission.
1.10 “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.
1.11 “Master Agreement” has the meaning specified in the introductory paragraph.
1.12 “Net Qualifying Capacity” has the meaning set forth in the Tariff.
1.13 “Period of Delivery” means the months defined in Section 2.1, inclusive.
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1.14 “Product” has the meaning specified in Section 3.1.
1.15 “Seller” has the meaning specified in the introductory paragraph.
1.16 “Tariff” means the tariff and protocol provisions, including any current CAISO-published “Operating Procedures” and “Business Practice Manuals,” as amended or supplemented from time to time, of the CAISO.
1.17 “Transaction” has the meaning specified in the introductory paragraph.
2. Term
2.1 Period of Delivery
The “Period of Delivery” shall be
.
2.2 Binding Nature
This Agreement shall be effective and binding as of the Confirmation Effective Date.
3. Transaction
3.1 Product
Seller shall transfer in the manner set forth in Section 3.3, to Buyer the Remaining Import Capability, as such term is defined by the Tariff (the “Product”) in the Contract Quantity, for the Period of Delivery, and at the applicable Contract Price.
3.2 Delivery Point
Name Bilateral Import Capability Transfer
CAISO BG/MSL Name NOB_ITC
3.3 Performance
Within three (3) Business Days of the Confirmation Effective Date, Seller shall transfer to Buyer the Product in the amount of the Contract Quantity by registering the transfer with the CAISO as a Bilateral Import Transfer Capability as such terms is defined by the Tariff, and completing any other action of documentation required by the CAISO to effect such transfer, including registering such transfer in the CAISO Customer Interface for Resource Adequacy (CIRA) system. Upon Seller registering transfer with CAISO, Buyer shall immediately confirm the transfer with CAISO by e-mail or by confirming such transfer is registered in the CIRA system.
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3.4 Contract Quantity
For the Period of Delivery, Seller shall transfer the Product in the total amount (“Contract Quantity”), as follows:
Contract Quantity Table
Month - Year Quantity (MW)
4. Payment
4.1 One-Time Payment
Buyer shall make a payment to Seller for the Product within ten (10) Business Days after the later of (a) Seller’s performance and CAISO’s email indicating successful transfer, or confirmation that such transfer is registered in the CIRA system, as described in Section
3.3 or (b) receipt of Seller’s invoice. This payment is calculated as follows:
Payment = (A X B X C) Error! Digit expected.
where:
A= Contract Price (in $/kW-month)
B= Contract Quantity (in MW) transferred by Seller
C= 1000kW/MW
The payment shall be rounded to two decimal places.
4.2 Contract Price
CONTRACT PRICE TABLE
Month - Year
Contract Price
($/kW-month)
DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A DocuSign Envelope ID: 7BF02B34-64B6-4B87-ACE0-38E7CF1D5B38 Appendix A Shell
5. CIRA System Failure
5.1 If a Party is unable to transfer or receive Product due to a CIRA System Failure, the affected Party shall, within two (2) Business Days from its discovery of the CIRA System Failure, provide the other Party with Notice and full details identifying the cause of the CIRA System Failure. Each Party shall use reasonable efforts to cause transfer or receipt of the Product.
5.2 Neither Party’s failure to transfer or receive Product due solely to a CIRA System Failure constitutes an Event of Default or failure to deliver Product.
6. Confidentiality
The Parties agree that Buyer and Seller may disclose this Agreement to the CPUC, CAISO and any Governmental Body, as required by Applicable Law; provided, that each disclosing Party shall use reasonable efforts to limit, to the extent possible, the ability of any such applicable Governmental Body, CAISO, or SC to further disclose such information.
Notwithstanding the foregoing, the Parties may disclose the relevant terms of this Transaction to the CAISO to effectuate Seller’s performance and the transfer of the Product and the CAISO may publicly disclose the transfer of the Product from Seller to Buyer as indicated in the Tariff promptly following Seller’s performance. In addition, in the event Buyer resells all or any portion of the Product, Buyer shall be permitted to disclose to the other party to such resale transaction all such information necessary to effect such resale transaction, other than the Contract Price. Buyer acknowledges that Seller is a public entity subject to the requirements of the California Public Records Act (Cal. Gov. Code section 6250 et seq.). Buyer acknowledges that Seller may submit information to Buyer that Seller considers confidential, proprietary, or trade secret information pursuant 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). Upon request or demand of any third person or entity not a party to this Agreement (“Requestor”) to Buyer pursuant to the California Public Records Act for production, inspection and/or copying of this Agreement or any information designated as confidential by Seller (“Requested Confidential Information”), Buyer as soon practical shall notify Seller in writing that such request has been made. Parties agree that pricing information contained in the Confirmation is confidential information. Buyer agrees to redact such pricing information in any disclosure, in accordance with the statutory exemption for proprietary information in Section 6254.15 of the Act.
7. 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. 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.
DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A DocuSign Envelope ID: 7BF02B34-64B6-4B87-ACE0-38E7CF1D5B38 Appendix A Shell
[Signature page follows]
DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A DocuSign Envelope ID: 7BF02B34-64B6-4B87-ACE0-38E7CF1D5B38 Appendix A Shell
IN WITNESS WHEREOF, the Parties have caused this Confirmation to be executed by their authorized representative effective as of the Confirmation Effective Date.
BUYER SELLER
Silicon Valley Clean Energy Authority,
A California joint powers authority Shell Energy North America (US), L.P.
By: ________________________________ By:_______________________________ Name:______________________________ Name:_____________________________ Title:________________________________ Title:______________________________ Michael J. Yen
Confirmations Team Lead
DocuSign Envelope ID: 707E6ECC-7E2A-43FE-A9C8-A5107A34DE4A CEO
Girish Balachandran
DocuSign Envelope ID: 7BF02B34-64B6-4B87-ACE0-38E7CF1D5B38 Appendix A Shell
x DocuSigned by:
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5CA64B9AC4C24C3...
Joint CCA (Sells) WSPP Standard RA Confirmation
06 November 2023
1 WSPP RESOURCE ADEQUACY CONFIRMATION
This Confirmation confirms the transaction between Silicon Valley Clean Energy, a California joint powers authority (“Seller”) and Central Coast Community Energy (“Purchaser”), and each individually a “Party” and together the “Parties”, dated as of the last dated signature on the signature page hereto (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 August 26, 2022 (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 from 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 all or a portion of the affected 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 all or a portion of the affected Contract Quantity during such period. If Seller fails to provide Purchaser with the Expected Contract Quantity from the Unit during any Showing Month 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.
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Joint CCA (Sells) WSPP Standard RA Confirmation
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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. 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.
(b) Seller shall deliver the Expected Contract Quantity by submitting or causing to be submitted to CAISO Seller’s Supply Plans, identifying in each case the Shown Unit(s) and the characteristics of the Shown Unit(s) and Product for the relevant period, 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, (i) monthly Supply Plans and (ii) annual Supply Plans if the Effective Date is prior to the year-ahead Compliance Showing Deadline applicable for the Showing Months specified in Appendix B, in accordance with the Tariff and CPUC requirements and no later than the initial Compliance Showing Deadline for such Showing Month, identifying and confirming the transfer of the Expected Contract Quantity of Product to Purchaser for each Showing Month. The total amount of Product identified and confirmed for such Showing Month shall equal the Expected Contract Quantity.
(d) 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.
(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 this Confirmation, including Purchaser’s instructions to withhold all or part of the Expected Contract Quantity from Seller’s Supply Plan pursuant to Section 2.7, has been accepted for the Product from the Shown Unit(s) by CAISO. Seller has failed to deliver the Product if (i) Purchaser DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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3 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) 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 respectto any portion of the Unit generating capacity 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 Section 2.3.
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 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 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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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4 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) Seller shall, or shall cause the Unit’s SC to submit a Supply Plan that includes the Replacement Units for each applicable Showing Month and, if applicable, annual filing, no later than the Compliance Showing Deadline for Purchaser’s Compliance Showings; and
(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.
Subject to the satisfaction of the conditions contained in subsections (a) – (c) of this Section 2.3, once Seller has identified in writing any Replacement Units that meetthe requirements of this Section 2.3, then any such Replacement Units shall be deemed a Unit for purposes of this Confirmation for that Showing Month.
2.4 Planned Outages
As of the 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. Within ten (10) Business Days after Purchaser’sreceipt 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, 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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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5 of its owned or controlled assets or market positions to minimize these penalties, fines or costs.
(c) If Seller fails to pay the foregoing damages, penalties, fines or costs, or fails to reimburse Purchaser for those damages, penalties, fines or costs, then, without prejudice to its other rights and remedies, Purchaser may setoff and recoup those damages, 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.
(b) Purchaser shall notify Seller in writing of any resale of Product and the Subsequent Purchaser no later than three (3) Business Days before the Compliance Showing Deadline for each Showing Month for which Purchaser has resold the Product. (c) If CAISO or CPUC develops a centralized capacity market, Purchaser will have exclusive rights to offer, bid, or otherwise submit, or if necessary to direct the Seller or the Unit’s SC to offer, bid, or otherwise submit the Expected Contract Quantity of Product for each Showing Month for re-sale into such market, and Seller and the Unit’s SC shall comply with the 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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Joint CCA (Sells) WSPP Standard RA Confirmation
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6 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.
2.7 Self-Showing Obligation; Hold-Back Capacity
(a) If the Product includes Local RAR Attributes, and Seller has self-shown the Expected Contract Quantity associated with the Shown Unit to the Central Procurement Entity (CPE), Purchaser agrees to assume Seller’s self-showing obligations by showing the Expected Contract Quantity in Purchaser’s Resource Adequacy Plan, or causing the Subsequent Purchaser to show such Expected Contract Quantity in its Resource Adequacy Plan, for each applicable Showing Month of the Delivery Period.
ARTICLE 3
PAYMENTS
3.1 Payment
Purchaser shall make a monthly payment to Seller for the Product by the later of (i) ten (10) calendar days after Purchaser’s receipt of Seller’s invoice and (ii) the twentieth (20th) day of the Showing Month, and if such day 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.
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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Joint CCA (Sells) WSPP Standard RA Confirmation
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7 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.
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.
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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8 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.
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 FERC Order Nos. 652 and 697, claim that this contractual arrangement conveys ownership or control of generation capacity from Seller to Purchaser.
ARTICLE 5
RESERVED
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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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9 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 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 to the CAISO, the CPUC or a Governmental Body of competent jurisdiction as necessary in order to support its Compliance Showings or otherwise show it has met its Compliance Obligations; (ii) Seller may disclose information as necessary to a Shown Unit’s SC or as necessary for its 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 as necessary for such Subsequent Purchaser to benefit from the Product and meet its Compliance Obligations.
(b) Purchaser acknowledges that Seller is a public agency subject to the requirements of the California Public Records Act (Cal. Gov. Code section 7920 et seq.) and that Seller may be required to make public this Confirmation (which may be partially redacted by Seller) in connection with the process of seeking approval from its board of directors for the execution of this Confirmation. Seller may submit information to Purchaser that Seller considers confidential, proprietary, or trade secret information pursuant 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. Seller acknowledges that Purchaser may submit to Seller information that Purchaser considers confidential or proprietary or protected from disclosure pursuant to exemptions to the California Public Records Act. Upon request or demand of any third person or entity not a party to this Confirmation (“Requestor”) pursuant to the California Public Records Act for production, inspection and/or copying of this Confirmation or any information designated by a disclosing Party as confidential, the receiving Party as soon as practical shall notify the disclosing Party that such request has been made, by telephone call, letter sent via electronic mail, and/or by overnight carrier to the address, or email address listed at the end of this Confirmation. 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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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10 release of information to the Requestor by the receiving Party. If the disclosing Party takes no such action within ten (10) days, 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. Notwithstanding the foregoing, Purchaser may release confidential information without notice to or over the objection of Seller if Purchaser’s legal counsel advises Purchaser that Purchaser is required by law to release such confidential information.
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 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.
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 Section 27 of the WSPP Agreement, neither Party shall be required to post collateral or other form of financial security in connection with this Agreement.
6.7 No Recourse to Members of Either Party
The Parties are each organized as a Joint Powers Authority in accordance with the Join Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) and are public entities separate from their constituent members. Each Parties will solely be responsible for all its debts, obligations and liabilities accruing and arising out of this Confirmation. Neither Party will have any rights and shall not make any claims, take any actions or assert any remedies against any DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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11 of the other Party’s constituent members, or the officers, directors, advisors, contractors, consultants or employees of such Party or such 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:
“(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 pay its debts generally 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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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12 Transactions shall be zero, notwithstanding any provision in this Section or Agreement to the contrary.”
(e) Section 22.3(e) is deleted in its entirety and replaced with the following:
“[Intentionally omitted]”
(f) Section 22.3(f) is deleted in its entirety and replaced 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 Effective Date. (h) Section 30.1(4) is amended by inserting “or requested” after the word “required” 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 DISPUTE RESOLUTION
IN THE EVENT OF ANY DISPUTE ARISING UNDER THE AGREEMENT WITH RESPECT TO 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 THE AGREEMENT.”
“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
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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13 OBJECTION IT MAY HAVE TO SUCH JURISDICTION OR THE
CONVENIENCE OF SUCH FORUM.”
(j) In Section 34.4, the phrase “arbitration or” is deleted from the first line. (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 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 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), WARRANTY, STRICT LIABILITY, CONTRACT OR STATUTE, UNDER ANY INDEMNITY PROVISION, OR OTHERWISE.” (l) Section 37 is amended by inserting the following in the beginning thereof: “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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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14 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 as a PDF attachment to an email 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 or modification to this Transaction shall be enforceable except through a Documentary Writing executed by both Parties.
[Signatures appear on the following page.]
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
15 AGREED AS OF THE EFFECTIVE DATE:
SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California joint powers
authority.
CENTRAL COAST COMMUNITY
ENERGY, a California joint powers
authority.
By:
Name:
Title:
Date:
By:
Name:
Title: _____________________________
Date:
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A Robert M. Shaw
11/11/2023
Chief Executive Officer
DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B CEO
Girish Balachandran
11/14/2023
DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
x DocuSigned by:
5OA04B9AO4C24C3...
x DocuSigned by:
At
'
398728BE39B342A...
Appendix A - 1
APPENDIX A
DEFINED TERMS
“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 Showing Deadline” means, for each Showing Month, the Compliance Showing plan submission due date for such Showing Month. For illustrative purposes only, as of the Effective Date, the applicable Compliance Showing plan submission due dates are as follows: (A) forty-five (45) days prior to the Showing Month covered by the Supply Plan for the monthly Supply Plan; and (B) the last Business Day of October that is prior to commencement of the year for the annual Supply Plan, such dates may be modified by the CAISO from time to time throughout the Delivery Period.
“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, as such may be modified, amended, supplemented or updated from time to time.
“Effective Flexible Capacity” has the meaning given in CAISO’s FERC-approved Tariff. “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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Appendix A - 2
reductions to Contract Quantity consistent with Section 2.2 with respect to which Seller has not elected to provide Alternate Capacity.
“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.
“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 five (5) Business Days before the Compliance Showing Deadline. “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 DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Appendix A - 3
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” means a generating unit having the same capacity attributes as the Unit(s) originally identified in Appendix B hereof, including the same Resource Category, RAR Attributes, and, as applicable, LAR Attributes, FCR Attributes, and Flexible Capacity Category, and otherwise meeting the requirements specified Section 2.3 hereof. A Replacement Unit shall not utilize coal or coal materials as a source of fuel, must be a specific resource that is connected directly to the CAISO controlled grid, or be under the operational control of CAISO, and may not be an unspecified import.
“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” means the calendar month of the Delivery Period that is the subject of the related Compliance Showing.
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Appendix A - 4
“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(s) described in Appendix B. “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.
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Appendix B - 1
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:
Resource Category (MCC Bucket): MCC 4
CPUC Local Area (if applicable):
Flexible Capacity Category (if applicable):N/A
24/7 Dispatchable: No
Delivery Period: .
Contract Quantity and Contract Price:
Showing
Month and
Year
Unit
RAR
Contract
Quantity (MW)
Local RAR
Contract
Quantity (MW)
Flexible Capacity
Contract Quantity
(MW)
Contract Price
($/kW-mo.)
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
1 1
1 Appendix B - 2
Unit 1
Unit Specific Information
Resource Name Kern River Cogen Facility
Physical Location Bakersfield, CA
CAISO Resource ID OMAR_2_UNIT 2
SCID of Resource
Unit NQC by month (e.g., Jan=50,Feb=65): 75
Unit EFC by month (e.g., Jan=30, Feb=50) NA
Resource Type (e.g., gas, hydro, solar, etc.) Gas Cogen Minimum Qualified Flexible Capacity
Category (Flex 1, 2 or 3)
NA
TAC Area (e.g., PG&E, SCE) SCE
Prorated Percentage of Unit Factor NA
Prorated Percentage of Unit Flexible Factor NA
Capacity Area (CAISO System, Fresno,
Sierra, Kern, LA Basin, Bay Area,
Stockton, Big Creek-Ventura, NCNB, San
Diego-IV or Humboldt)
CAISO System
Resource Category as defined by the CPUC
(DR, 1, 2, 3, 4)
4 Unit 2
Unit Specific Information
Resource Name Kern River Cogen Facility
Physical Location Bakersfield, CA
CAISO Resource ID OMAR_2_UNIT 4
SCID of Resource
Unit NQC by month (e.g., Jan=50,Feb=65): 75
Unit EFC by month (e.g., Jan=30, Feb=50) NA
Resource Type (e.g., gas, hydro, solar, etc.) Gas Cogen Minimum Qualified Flexible Capacity
Category (Flex 1, 2 or 3)
NA
TAC Area (e.g., PG&E, SCE) SCE
Prorated Percentage of Unit Factor NA
Prorated Percentage of Unit Flexible Factor NA
Capacity Area (CAISO System, Fresno,
Sierra, Kern, LA Basin, Bay Area,
Stockton, Big Creek-Ventura, NCNB, San
Diego-IV or Humboldt)
CAISO System
Resource Category as defined by the CPUC
(DR, 1, 2, 3, 4)
4 (Repeat for additional Units)
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Appendix B - 3
[Information for specific Shown Units may be provided after the Effective Date pursuant to the Confirmation.]
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
Appendix C - 1
APPENDIX C
NOTICE INFORMATION
Seller: Silicon Valley Clean Energy
Authority
Purchaser: Central Coast Community
Energy
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
1 Appendix C - 2
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE
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
DocuSign Envelope ID: CE81DA27-BE3B-4964-B6AA-514F0200376A DocuSign Envelope ID: BF5AB2D2-9395-4CE4-98B5-9D98D3A4595B DocuSign Envelope ID: 42D7B0DF-E495-46DC-8690-32C783B0142E Appendix A 3CE