Agenda Item: 2 Agenda Date: 5/8/2024
Staff issued an RFO for long-term clean resources in late 2023. Negotiations are underway for new resources and staff will return to the Board for approval(s) as necessary. Attachment 1 provides an update of SVCE’s clean energy efforts through long-term power purchase agreements.
Energy Services & Community Relations Updates
Staff was busy celebrating Earth Month. In total staff participated in more than 15 events throughout SVCE communities. Thank you for a wonderful set of events. The team has also been busy with launching the Go Electric Advisor service to customers, along with many other marketing campaigns to promote our offers and services through a variety of channels.
Please see Attachment 2 for a recap of our community engagement and marketing efforts this past month.
Regulatory & Legislative Update
On the regulatory front, staff is busy following CPUC related to Resource Adequacy, Integrated Resource Planning, Distribution Grid Planning, and Demand Flexibility. To assist with staff’s advocacy efforts with distribution grid planning, staff sent a survey out to member agencies through the MAWG Log and through the City Manager update. We are looking for feedback to inform a proposal at the CPUC to require PG&E to develop Community Engagement Plans whereby PG&E is required to engage with your cities to inform their distribution planning and energization processes. Staff is looking for responses to the survey by May 16th.
Several legislative bills are being tracked, however it’s too early to see what will make it through at this point.
Several energy bills have been introduced to focus on affordability and reliability. Staff will share with the Board as these bills develop.
Attachment 3 provides highlights of key regulatory and legislative activities. Staff will provide a brief oral update.
Look Ahead Update
Staff is busy planning for Board and committee meetings through the end of the year. To provide the Board with a preview of what’s ahead for the Board from June 2024 through October 2024, please refer to Attachment 4.
ATTACHMENTS
1. Clean Power Update, May 2024
2. Energy Services & Community Relations Update, May 2024
3. Regulatory and Legislative Update, May 2024
4. Agenda Look Ahead, June 2024 – October 2024
Item 2
Agenda Item: 2 Agenda Date: 5/8/2024
Item 2
Exhibit 1 - CEO Agreements Executed
The following agreements have been executed by the CEO, consistent with the authority delegated by the Board:
1) JD Power (Zappy Ride), Amendment: E-Mobility Market Services, not to exceed $118,410, extends term to 9/30/24
2) Reach Strategies, Agreement: Building Electrification Engagement Services, not to exceed $100,000, 4/1/24 -4/1/27
3) Kimley-Horn and Associates, Agreement: Building Electrification Engagement Services, not to exceed $100,000, 4/15/24 – 4/14/27
4) Opinion Dynamics, Task Order 1: Data Analytics Support – Dynamic Rates, not to exceed $5,000 5) Patricia LaFleur, Amendment: Mural project, not to exceed $15,700 6) ADM, Amendment: Electric Vehicle Infrastructure Plan Portfolio Evaluation, not to exceed $102,885 7) Franklin Energy Services, LLC, Agreement: Single Family Home Installation Program, not to exceed $14,000,000, 4/12/24 – 4/11/27; approved by the Board of Directors at the March 13, 2024 Board of Directors Meeting
8) Arup, Task Order: Greenhouse Gas Emissions and Decarbonized Equipment Forecast Tools, not to exceed $142,000
9) Ecology Action, Amendment: Memorandum of Understanding between Ecology Action and SVCE, not to exceed $100,000
10) EV.Energy Corp, Amendment: Software as a Service, not to exceed $650,000, extends date to 5/13/25 11) DataSpaceDigital, Agreement: Website Analytics Improvements, not to exceed $1,980, 4/24/24 – 10/21/24
12) FreeWire Technologies, Inc., Amendment: Priority Zone DC Fast Charging Incentive Program Agreement, sub vendor added
13) EVmatch, Inc., Amendment: Memorandum of Understanding between EVmatch, Inc. and SVCE, extends date to 6/30/25
14) Bellawatt, Inc., Agreement: SVCE eHub & Appliances Assistant, not to exceed $667,500, 4/11/24 – 9/30/27. Approved by the Board of Directors at the April 10, 2024 Board of Directors meeting
Exhibit 2 - CEO Power Supply Agreements Executed
Counterparty Name Execution/Effective
Date
Transaction
Type Product Start Date End Date Notional Value
Shell 4/1/2024 Purchase Resource Adequacy 6/1/2024 6/30/2024 $60,000 Dynasty Power 4/3/2024 Sale Import Allocation Rights 7/1/2024 9/30/2024 $176,580 NRG 3/22/2024 Purchase Resource Adequacy 6/1/2024 6/30/2024 $20,000 NRG 3/25/2024 Sale Resource Adequacy 11/1/2024 11/30/2024 $20,000 Southern California Edison 4/17/2024 Sale Import Allocation Rights 7/1/2024 9/30/2024 $180,000 These agreements are included in the Board packet as Appendix A.
Item 2
0 SILICON VALLEY
CLEAN ENERGY
• Subtitle
New SV Clean Energy
PowerPoint Template
Item 2
Attachment 1
Clean Power Update, May 2024
SILICON VALLEY
CLEAN ENERGY
SVCE Board Meeting
May 8, 2024
CEO Report
Clean Power Update
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Item 2
Attachment 1
Clean Power Update, May 2024
CD Clean Long-term Power Agreements
SACRAMENTO Q g GEOTHERMAL
BATTERY STORAGE
X SOLAR + STORAGE
X. SOLAR POWER
• WIND GENERATION
$3.7B+ in commitments
21 PPAs signed
18 new build projects
896 MW of Renewable Power
1,845 MWh of Battery Storage
8 Projects now delivering to SVCE
meeting ^44% of energy needs:
COSO geothermal - January 2022
Slate Solar + Storage -January 2022
Casa Diablo geothermal-September 2022
Mountain View wind - July 2022
Rabbitbrush Solar + Storage -October 2022
Terra-Gen Wind - January 2023
Yellow Pine Solar + Storage - July 2023
Victory Pass Solar + Storage - March 2024
No changes since April 2024
Seller Project Name Technology Generation MW
Storage
MW Storage MWh
Approximate % of Annual
load in 2030
Term
(years)
Lifetime Not to
Exceed Authority
(MM$)
SVCE Board
Approval Status
1 MN8 Slate Solar + Storage 93 46.5 186 6.2% 17 $198 Oct-18 Online 2 Ormat Casa Diablo Geothermal 7 1.4% 10 $43 Feb-20 Online 3 Atlantica Coso Geothermal 43.8 6.1% 15 $331 Mar-20 Online 4 Leeward Rabbitbrush Solar + Storage 40 8 20 2.9% 15 $64 Apr-20 Online 5 NextEra Yellow Pine Solar + Storage 50 26 104 3.8% 20 $128 May-20 Online 6 Avantus Aratina Solar + Storage 80 50 200 6.3% 20 $368 Jun-20 Pre-construction 7 174 Power
Global Atlas Solar 50 3.6% 10 $32 Jan-21 Pre-construction 8 SB Energy Angela Solar + Storage 20 10 40 1.4% 15 $35 Mar-21 Pre-construction 9 AES Mountain View Wind 33.3 3.1% 20 $128 Apr-21 Online 10 Origis San Luis West Solar + Storage 62.5 15.625 62.5 3.9% 15 $132 Apr-21 Pre-construction 11 Clearway Victory Pass Solar + Storage 100 25 100 7.6% 15 $173 May-21 Online 12 Terra-Gen Cameron Crest Wind 77.7 4.6% 15 $150 May-21 Online 13 Rev Renewables Tumbleweed
Long Duration
Storage 15.9375 127.5 15 $100 Feb-22 Construction
14 Onward Goal Line
Long Duration
Storage 14.2 113.6 15 $100 Mar-22 Pre-construction
15 Ormat Geothermal Portfolio Geothermal 16.75 4.2% 20 $256 Jun-22 Pre-construction 16 OME Fish Lake Geothermal 1.82 0.4% 20 $30 Jun-22 Pre-construction 17 AES Baldy Mesa (RA-only) Storage 0 75 300 10 $81 Sep-22 Construction 18 MRP Hanford Thermal + BESS 99.4 131.4 131.4 12 $280 Apr-23 Construction 19 NextEra Grace Solar 120 0 8.3% 15 $286 Aug-23 Pre-construction 20 NextEra Yellow Pine III Storage 0 115 460 15 $420 Aug-23 Pre-construction 21 Pattern SunZia Wind 100 0 0 7.6% 15 $361 Nov-23 Construction Item 2
Attachment 1
Clean Power Update, May 2024
O SVCE Long-Term Clean Energy Contracts
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Item 2
Attachment 1
Clean Power Update, May 2024
0) Clean Energy Resources Online Progress
as of 4/29/2024
2024 -H1 Victory Pass Solar + Storage: Online and Operating in CAISO Market Baldy Mesa (RA-Only Storage): Construction mode
2024 -H2 Hanford BESS on Peaker: Construction mode
2025 -H1
2025 -H2
Goal Line Long Duration Storage: Pre-construction
Aratina Solar + Storage: Pre-construction- delayed
San Luis West Solar + Storage: Pre-construction - delayed Atlas Solar: Pre-construction- delayed
Yellow Pine III Storage: Pre-construction
2026+
Angela Solar + Storage: Pre-construction - delayed
Tumbleweed Long Duration Storage: Construction mode
Fish Lake Geothermal: Pre-construction
Ormat Geothermal Portfolio: Pre-construction
SunZia Wind: Construction mode
Grace Solar: Pre-construction
Item 2
Attachment 1
Clean Power Update, May 2024
1 1. Outreach Events & Sponsorships
Date Sponsorship Location
5/2/2024 Housing Trust of Silicon Valley Investor
Briefing
4 p.m. – 6 p.m.
Sponsorship
Hyatt Centric Mountain View
409 San Antonio Rd
Mountain View, CA 94040
5/18/2024 Morgan Hill Senior Resource Fair
11 a.m. – 2 p.m.
Tabling
Morgan Hill Community Center
17000 Monterey Rd
Morgan Hill, CA 95037
5/25/2024 Mushroom Mardi Gras
10 a.m. – 7 p.m.
Sponsorship & tabling
Downtown Morgan Hill Amphitheater Grounds & Depot Street Morgan Hill, CA 95037
5/26/2024 Mushroom Mardi Gras
10 a.m. – 6 p.m.
Sponsorship & tabling
Downtown Morgan Hill Amphitheater Grounds & Depot Street Morgan Hill, CA 95037
6/13/2024 SJ Giants Climate Night with SVCE
Time TBA
Sponsorship, staff outing, tabling
Excite Ballpark
588 E Alma Ave
San Jose, CA 95112
Item 2
Attachment 2
ESCR Update, May 2024
2 Earth Month Recap
SVCE staff attended 15 in-person community events in April ▪ Attended local events held by
member agencies, non-profits,
and schools
▪ Thousands of people attended
Earth Day weekend events,
and our staff participated at 5
different events throughout
our service territory on
Saturday 4/20
▪ Key feedback: Customers are
excited to use SVCE’s newly-launched Go Electric advisor Item 2
Attachment 2
ESCR Update, May 2024
3 Participation Rate
Overall Participation
Rate
Residential 96.14%
96.18%
Commercial 96.59%
2. Customer Participation
Item 2
Attachment 2
ESCR Update, May 2024
SILICON VALLEY
CLEAN ENERGY
4 3. Digital Ads:
Future Fit Homes Rebate Program
SVCE continues to prioritize the promotion of the FutureFit Homes Rebate Program with digital ads and a multilingual campaign coming soon: svcleanenergy.org/home-rebates/ Example Google Display Ads
Item 2
Attachment 2
ESCR Update, May 2024
Top image-based combinations
Go Electric with SVCE Rebates
Create a healthier home environment with rebates
of $8,750 for all-electric appliances.
Upgrade Your Home Today
Go Electric with SVCE Rebates
Get up to $8,750 towards heat
pump heating/cooling, water
heaters, and induction stoves.
Upgrade Your Home Today
Go Electric with SVCE Rebates
Get up to $8,750 towards heat pump
heating/cooling, water heaters, and induction
stoves.
Upgrade Your Home Today
Create a healthier home environment with rebates
of $8,750 for all-electric appliances.
Go Electric with SVCE Rebates
Get up to $8,750 towards heat pump
heating/cooling, water heaters, and induction
stoves.
5 4. Digital Ads: GridShift
Running ads on Facebook and Instagram to promote the GridShift app Item 2
Attachment 2
ESCR Update, May 2024
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A Silicon Valley Clean Energy © kz
V^Z Sponsored k*
4g Attention EV drivers! Are you making the
most of your charging experience? Get the free
GridShift app for a cheaper, cleaner charge.
GridShift EV Charging
Join the hundreds of Silicon Valley
EV drivers earning rewards for charging
Earn rewards
for charging Learn more
Unlock exclus...
What
K
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$50 sig
bonus
Plus$1
© 2
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Q April 5
•10:18 AM
Save $100+
per year with
GridShift EV Charging
Join the hundreds of
Silicon Valley
EV drivers earning
rewards for charging
users are saying
Join free and
start saving today!
“I can set it and forget it and the
next thingIknow I’ve got bonus
points that I can use towards my
bill.” -William
0 April 5 O 10:18 AM
What GridShift
“It has zero costs and bis of
benefits, and it s
Absolutely you should
-Romesh
“Participating in low carbon events
and critical GridShift hours make
me feel like I'm making a
difference! -Dora
6 We're excited to announce the launch of our Go Electric Advisor, a FREE live service with energy experts ready to help you explore EVs, electric home appliances, solar & battery storage systems, and more: goelectric.svcleanenergy.org
5. Go Electric Advisor Launch
Launch included:
✓ Press release
✓ Social media
✓ Digital toolkit
Tactics to follow:
✓ Nextdoor
✓ Social media
✓ Digital ads
✓ SVCE emails
Item 2
Attachment 2
ESCR Update, May 2024
SILICON VALLEY
CLEAN ENERGY
Energy Advisors are available
Monday-Friday, 9am-5pm PST (excluding holidays)
Helping Silicon Valley Clean Energy Customers
Take The Guesswork Out of Going Electric.
Cail 833.243.4235
Email U«
0 Chat with an AtJvisor
*A goelectric.svcleanenergy.org 0
Your trusted partner to
go electric.
Energy Advisors are ava taele Monday-Friday. 9am-5pm PST [excluding holidays) 02^»|
GoElectric Adviser is a tree Ive service to
help SVCE customers take ihe guesswork
out of going electric.
Our team of friendly, trained professionals
can helo at every step along the way -from
simple questions to detailedplans.
Go Electric Advisor
-> X ts svcleanenefgy.org/news/liveenergyadvisor-helps-reskients-takeaction-toachievea-safe-beatthy-and-efficient-electriclifestyle/ Q. 0 © O 0 • 0 SILICON VALLEY CLEAN ENERGY ABOUT US GO ELECTRIC - REBATES 4 OFFERS RATES 4 BALING 11VO.1014 I I WRITE COMMENT
Live Energy Advisor Helps Residents Take Action to Achit a Safe, Healthy, and Efficient Electric Lifestyle
Silicon Volley Cleon Energy launches “Go Electric Advisor" Sunnyvale. CA— Silicon Valley Clean Energy (SVCE) announces the launch of the Go Electric Advisor, a free and personalized live support service to help SVCE customers transition to clean, electric equipment and appliances for their homes and transportation. The Go Electric Advisor concierge service is composed of an entire team of energy experts that are at customers’ disposal.
Latest News
Live Energy Advisor Helps
Residents Tako Aalon to
Achieve a Safe. Healthy, and
Efficient Electric Lifestyle
Ar«11.1014
Student Led Projects Address
Climate Issues Facing Local
Communities
Go Electric Advisor
Newsletter
DOWNLOAD IMAGE
SV Clean Energy's Go Electric Advisor Service
Preview: Your trusted partner to go electric
Did you know that there are various rebates and Incentives that can greatly reduce the costs to go electric? From electric vehicles to home appliances and solar & battery storage, you can save thousands of dollars through federal, state, local, and Silicon Valley Clean Energy (SVCE) programs.
Go Electric Advisor is a free live service to help SVCE customers take the guesswork out of going electric and simplify the electric transition - at every step along the way.
SVCE has a team of Energy Advisors that can help you navigate all the ways to save money on your electric upgrades to maximize your savings, and even help you apply for rebates and Incentives!
7 6. Electric Yard Care Equipment Promotion
Purpose of Promotion: Encourage customers to learn about electrification and upgrade their yard care equipment to electric.
Promotion Details: Customers can get $50 off electric lawn mowers, leaf blowers, trimmers, and chainsaws through the Appliances Assistant.
Launched April 8, closes July 31
Item 2
Attachment 2
ESCR Update, May 2024
Let’s transition
from
If your old gas-powered yard care
gas to electric
equipment is causing you trouble, transition
to electric for minimal maintenance, easy
start-up, and reduced noise and emissions.
Visit appliances.svcleanenergy.org 0
©
SILICONVALLEY
CLEAN ENERGY
Two Ways to Claim
$50 Off Electric Yard
Care Equipment:
Purchase directly through
the Appliances Assistant
for an instant discount.
Purchase from any online or
brick and mortar retailer,
visit product page on
Appliances Assistant, click
the "claim reward" button.
F appliances.svcleanenergy.org
Did You Know:
Gas-powered yard care equipment can
generate noise levels of 80 to 100 decibels,
comparable to the sound of a motorcycle?
Switch to electric yard care equipment
and keep your noise to a minimum.
Visit appliances.svcleanenergy.org SILICON VALLEY
CLEAN ENERGY
8 7. Introducing the Digital Media Asset
Webpage
Improving our promotion resources for you and your community staff Want to share about SVCE offers and
services in your community
newsletters or social media? Visit the
Digital Media Assets webpage to see
all the current offers and services
SVCE is promoting!
Join the email list to receive
notifications when new content is
added. Join List
Item 2
Attachment 2
ESCR Update, May 2024
/T\ SILICON VALLEY
CLEAN ENERGY ABOUT US xz GO ELECTRIC - REBATES & OFFERS xz RATES & BILLING xz Digital Media Assets
Collaboration is a powerful way to increase awareness and access tothe offers and services we provide our customers -your residents and businesses. The graphics and sample content below are designedfor your useand can be downloaded and copied directly from this page.
To receive notifications when new resources are added, please join our email list.
Join Email List
If you have questions or specific asset requests, please contact emily.munizasvcleanenergy.org.
Video Competition Rebates Contractor Training 2023 Community Impact EmPower Silicon Valley Video Competition
Newsletter
Newsletter Content Silicon Valley Clean Energy Calls for Entries in Spring EmPowerSV Student Video Scholarship Calling all middle and high school students! Silicon Valley Clean Energy (SVCE), your local electricity provider, presents the 2024 EmPower Silicon Valley scholarship short video competition. Unleash your creativity and explore the world of clean, efficient all-electric technologies. With prizes of up to $3,000, students from SVCE's 13 member communities’ have the chance to shine. Registration is open until May 3rd, and participants can choose from three exciting prompts to showcase their talent Learn more at svcleanenergy.org/empower-sv/
9 SVCE was recognized by CalCCA at their annual conference in the decarbonization awards category for our Decarbonization Demonstration grants program.
8. CalCCA Impact Award
Board members and staff in attendance accept the award from California Energy Commission Chair David Hochschild
Item 2
Attachment 2
ESCR Update, May 2024
10 9. Save the Date: EmpowerSV Film Fest!
You are invited to join us on June 12, from 4:30 – 6:30 p.m. for a film festival and special awards ceremony to recognize the winners of the EmpowerSV Student Short-Film Scholarship Competition.
The event will be an opportunity to hand out scholarship prizes to the winning teams and engage with local
students.
Where: Cupertino Community Hall
When: June 12, 4:30 – 6:30 p.m. ahead of the board
meeting
Light refreshments will be served
Item 2
Attachment 2
ESCR Update, May 2024
$3,000
EMPOWER
SILICON VALLEY
tarn up to
For your
Clean Energy
short video
SILICON VALLEY
CLEAN ENERGY
STUDENT
SHORT VIDEO
COMPETITION
Apply today
svcleanenergy.org/empower-sv/
11 The most recent MAWG meeting was held on April 25, 2024 and was attended by 9 different agencies and organizations with a total of 27 participants.
The following agenda items were presented and discussed:
• FutureFit Fundamentals Contractor Training Program Update • SVCE’s Workforce Efforts
• SVCE’s Support for BAAQMD Activities
• Reach Code Redos
• Standing Item: Policy & Permitting Updates
10. Member Agency Working Group –
April Update
Item 2
Attachment 2
ESCR Update, May 2024
12 11. Press Releases & Media
Press Releases
• Student-Led Projects Address Climate Issues Facing Local Communities, Press Release, 04-03-24 • Live Energy Advisor Helps Residents Take Action to Achieve a Safe, Healthy, and Efficient Electric Lifestyle, Press Release, 04-22-24
• Michael Callahan Joins Silicon Valley Clean Energy as General Counsel, Press Release, 04-25-24 Media Mentions
• Stem forges ahead with its move into SaaS, Latitude Media, 03-29-24 • Mountain View proposes to reverse ban on gas appliances for new construction, Mountain View Voice, 04-08-24
• Community briefs: No Menlo Park Caltrain service this weekend, $43K in Rotary Club grants and more, The Almanac, 04-11-24
Item 2
Attachment 2
ESCR Update, May 2024
13 11. Press & Media (continued)
• Clearway Brings Online Large Solar +
Storage Energy Complex in Riverside
County, California, Utility Dive, 04-17-24
• Letter: Take advantage of rebates for clean
appliances, Gilroy Dispatch, 04-26-24
• Data Insights are Illuminating the Future of the Power Sector, insideBIGDATA, 04-11-24 • Silicon Valley Clean Energy on Comunidad Del Valle, NBC Bay Area, 04-14-2024 • English interview, Spanish interview
Item 2
Attachment 2
ESCR Update, May 2024
• Subtitle
New SV Clean Energy
PowerPoint Template
Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
CD Policy Updates
Regulatory Update:
1. Demand Flexibility: Income Graduated Fixed
Charge
2. Integrated Resource Planning
Legislative Update:
1. Early State Budget Actions
2. SVCE and CaICCA Bill Positions
3. 2024 Legislative Calendar
2 Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
Regulatory
Update
Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
Key Regulatory Activities
procurement entity) will be discussed and decided upon in the spring and summer of 2024.
Activity Purpose Status
Demand
Flexibility Proceeding
(R. 22-07-005)
Income Graduated Fixed
Charge Track
To advance demand
flexibility through electric rates.
The CPUC issued a Proposed Decision that would authorize investor owned utilities in California (e.g., PG&E) to implement income graduated fixed charges on residential bills. The Proposed Decision proposes to adopt a three-tiered income graduated fixed charge structure. Tier 1 customers must be enrolled in California Alternative Rates for Energy and would pay a $6 monthly charge. Tier 2 customers must be enrolled in Family Electric Rate Assistance or be living in affordable housing restricted to residents with incomes at or below 80 percent of Area Median Income and will pay a $12.08 monthly charge. Tier 3 customers will be all other customers not eligible for Tiers 1 and 2 and will pay a $24.15 monthly charge. PG&E would implement the fixed charges during the first quarter of 2026. Stakeholders have filed comments in response to the Proposed Decision arguing that the CPUC should expand the definition of low-income and eligibility for the Tier 1 and 2 fixed charge beyond just CARE/FERA or living in affordable housing.
Other stakeholders argued for higher fixed charges, in order to reduce volumetric rates on electrification tariffs. No revision to the Proposed Decision has yet been issued. The Proposed Decision is expected to be voted out by the CPUC on May 9th at the earliest.
Integrated Resource
Planning (R.20-05-003)
Electric Integrated Resource
Planning and Related
Procurement Processes.
On April 18, 2024 a scoping memo was issued which clarifies and updates the timeline and workstreams for the next IRP cycle. The scoping memo includes three major updates:
1) Implementation of AB 1373 (allowing Department of Water Resources to act as a central 2) Implementation of a new procurement framework ("Reliable Clean Power Procurement Program") will be considered throughout the remainder of 2024, with a decision targeted for early in Q1 of 2025.
3) Individual LSE IRP filings will be delayed 12 months -to November of 2025 -to allow the above processes to be completed prior to LSE plan development.
Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
Legislative
Update
5 Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
Early State Budget Actions
Gov/Legislature adopted package of early budget actions to reduce deficit that largely follows the January Budget proposal. More cuts may come in June.
Program Funding Amount
Drayage Trucks and Infrastructure Grants and
ZEV manufacturing grants
$30M cut
Regional Climate Collaboratives and Climate
Adaptation/Resilience Planning Grants
$14.6M cut
Electricity Supply Reliability Reserve Program $55M delay Distributed Energy Backup Assets Program $55M delay
Clean Energy Reliability Investment Plan $100M delay
6 Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
0 SVCE and CaICCA Bill Positions
Bill Summary CaICCA or SVCE
Position
SB 1130 (Bradford) Allows households with less than 3
people to enroll in the FERA low-income
bill assistance program.
CaICCA Support
SB 1095 (Becker) Prohibits mobile home parks and
homeowner associations from instituting
barriers to electric appliances.
SVCE Support
AB 817 (Pacheco) Would allow Board Committees that are
purely advisory to use pandemic-era
teleconferencing rules.
CaICCA Support
AB 2779 (Petrie-Norris) Requires CAISO to report on any use of grid enhancing technologies to the CPUC
and legislature.
CaICCA Support
SB 1165 (Padilla) Allows transmission projects to go
through the permitting process at the CEC
instead of the CPUC.
CaICCA Support
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Item 2
Attachment 3
SVCE Leg/Reg Update, May 2024
1 Key 2024 State Legislative Milestones
January 3—Legislature Reconvenes
January 12—Last day for policy committees to hoar fiscal bills from their house last year January 19—Last day to submit bill requests to Legislative Counsel; last day for committees to hoar and report to the floor bills introduced last year
January 31—Last day for each house to pass bills introduced last year February 16—Last day for bills to bo introduced
April 26—Last day for policy committees to vote on fiscal bills May 17 - Last day for fiscal committees to hear bills introduced in that house May 24- Last day for each house to pass bills introduced in that house June 15 -Budget bill must pass by midnight
July 3 - Last day for policy committees to vote on bills August 16 - Last day for fiscal committees to vote on bills August 31- Last day for each house to pass bills
September 30 - Last day for Governor to sign bills
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Item 2
Attachment 4
Agenda Look Ahead: June -October 2024
June
12th: BOD Meeting
FY 24-25 Budget
Framework - Info
Stress Test Analyses - Info
Intro to FY 24-25 Strategic
Plan -Strategic Focus
Areas -Info
2025 Clean Power Supply
Recommendation Offerings
- Action
Study Session: Clean
Pathways and 24x7 study
4:30pm to 6:30pm:
Pre-Board meeting -
Student Scholarship
Short-Film Festival
August
14th: BOD Meeting
Workforce Policy & Strategy -
Action
FY 24-25 Budget - Discussion
FY 24-25 Strategic Plan &
Focus Areas - Discussion
September
11th: BOD Meeting
FY 24-25 Budget- Adopt
FY 24-25 Strategic Focus
Areas -Adopt
FY25 Programs Budget -
Action
Agency Policies Streamlining
Project Update
& Recommendation Parti-Action (tentative)
Study Session: Affordability
October
9th: BOD Meeting
FY 24-25 Strategic Plan
and Workplan - Adopt
Agency
Policies Streamlining
Project Update &
Recommendation Part 2 -
Action (tentative)
Clean Pathways Update &
Recommendation - Action
Study Session:
Regionalization
*Please note the items on this
schedule may change depending on
priorities
1
Staff Report – Item 3
Item 3: Adopt Resolution Approving the Hanford Hybrid Plant Emissions Mitigation Guidelines
From: Monica V. Padilla, CEO
Prepared by: Citlalli Sandoval, Senior Regulatory Advisor Date: 5/8/2024
RECOMMENDATION
Staff recommends that the Silicon Valley Clean Energy (“SVCE”) Board of Directors (“Board”) adopt Resolution 2024-09 approving the Hanford Hybrid Plant Emissions Mitigation Guidelines (“Guidelines”), which provides for the following:
• Specifies the types of programs and projects that will be funded to help to mitigate the emissions associated with energy produced by the Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System during the 12-year term of the power purchase agreement; • Establishes a fund of no less than $750,000 and no more than $1.8 million; • Authorizes the Chief Executive Officer to disburse the funds; and • Requires staff to report back to the SVCE Board of Directors on the effectiveness of the fund one year after the first disbursement and on an annual basis thereafter, if necessary.
EXECUTIVE COMMITTEE RECOMMENDATION
Staff presented the Guidelines at the April 26, 2024 Executive Committee meeting. The Executive Committee expressed unanimous support for the guidelines and provided input and recommendations including the requirement for feedback from the Kings County community to be gathered and for updates on the disbursements to be added to the Guidelines prior to the request for approval of the Guidelines at the May 8, 2024 board meeting.
BACKGROUND
During the April 12, 2023 board meeting, the board approved Resolution Number 2023-06, which delegated authority to SVCE’s Chief Executive Officer to execute a Power Purchase Agreement (“PPA”) for the Hanford Hybrid Power Plant. The Hanford plant is a hybrid natural gas peaker power plant (“peaker”) and battery energy storage system that SVCE contracted with for twelve years to ensure that SVCE can meet its Resource Adequacy program obligations as mandated by California and to assist with meeting SVCE’s procurement obligations under the California Public Utilities Commission’s Mid-term Reliability procurement order.
California’s Resource Adequacy program ensures load serving entities in California have contracted with enough capacity for the grid to be able to meet peak demand conditions. However, this capacity has been in short supply in recent years, which has resulted in California facing reliability challenges, especially during heatwaves. The Hanford Hybrid Power Plant will help to alleviate some of the supply shortage.
Dispatch of the peaker portion of the Hanford Hybrid Power Plant is expected to result in carbon emissions.
For this reason, the board directed staff to develop a policy and/or guidelines to set aside funds to be used for programs and/or projects to mitigate emissions associated with energy produced by the plant.
Item 3
SILICON VALLEY \3/ CLEAN ENERGY
Agenda Item: 3 Agenda Date: 5/8/2024
ANALYSIS & DISCUSSION
The Hanford Hybrid Power Plant is located in Kings County and will allow SVCE to make more capacity available to the grid to meet demand. SVCE expects to only dispatch the natural gas peaking facility portion of the hybrid plant when the California Independent System Operator market signals it is needed. The projected dispatch is expected to result in 5,000 MT of CO2 being emitted per year at the start of the plant’s contract period. SVCE staff has examined the utilization rates of the peaker portion of the hybrid plant and found that run hours will decline over the contract period. Staff expect that this could result in the yearly emissions emitted decreasing over time, especially as the battery energy storage system displaces the gas plant.
The board has previously approved funding allocations for community programs as a direct response to SVCE’s portfolio management activities.1 These programs serve to counterbalance any concerns about the impacts of the portfolio, as temporary as they may be, and have been recommended in the past because SVCE is both proactive and responsive about ensuring its portfolio management activities leave a net positive impact on communities. SVCE has run several electrification programs and has used this experience funding and operating new programs to develop the Guidelines that are being recommended for approval.
The Guidelines specify that staff shall seek approval for a one-time funding allocation to be used for programs during the twelve years of the Hanford plant’s operations under its contract with SVCE. This funding allocation will be used to establish the Hanford Hybrid Plant Emissions Mitigation Fund, from which SVCE will support emissions mitigation programs and activities. Additionally, the Guidelines recommend staff seek approval for a funding allocation range of $750,000 to $1.8 million and authorize the CEO to disburse up to $1.8 million.
The funding allocation range recommendation is based on staff’s review of previous funding approvals related to SVCE’s portfolio management activities and assessment of an appropriate amount of funding most likely to make a meaningful impact in the community. The recommended funding cap (i.e., the maximum of the recommended range) represents 1.5% of SVCE’s total programs budget allocation.
The Guidelines specify that the funds are to be deployed to benefit low-income or disadvantaged communities in the geographical region where the Hanford Hybrid Power Plant is located, Kings County. This will ensure that emissions due to the operation of the hybrid power plant are being mitigated through the offering of emissions reduction programs where the project is located (i.e., near the emissions source).
After the adoption of the Guidelines, staff will be required to seek the collection of stakeholder input to determine the community’s preferences for emissions mitigation programs. Disbursements from the Hanford Hybrid Plant Emissions Mitigation Fund will be used to pay for existing electrification programs or activities that help to reduce the emissions resulting from the use of electricity or transportation in the community.
The Guidelines require staff to report progress and the effectiveness of the fund disbursements one year after the first disbursement and annually thereafter until the fund is exhausted. Staff will report on whether funding was able to be disbursed, the programs the funding was used for, and whether disbursements from the fund are still pertinent to accomplishing the goal of the fund: mitigating the emissions from the plant. This information will be reported to the Board of Directors in the Board Information Packet.
STRATEGIC PLAN
The proposed programs align with the board-adopted strategic plan for the following goals:
• Goal #11: Support communication and engagement with public, private and nonprofit stakeholders to leverage our decarbonization efforts
1 See for example, the November 10, 2021 approval of program funding recommendations from 2020 PG&E carbon-free allocation savings and the June 8, 2022 approval authorizing a funding allocation for community electrification engagement and demonstration programs.
Item 3
Agenda Item: 3 Agenda Date: 5/8/2024
ALTERNATIVE
If the Guidelines for Hanford emissions mitigation are not adopted, staff can return to the Board with alternative policy proposals or guidelines for an emissions mitigation fund. Alternatively, the Board may elect not to develop a fund and/or guidelines.
FISCAL IMPACT
Should the Board elect to adopt the resolution and corresponding Guidelines, staff will include an estimate of the funding to be deployed as part of the Fiscal Year 2024-2025 operating budget.
ATTACHMENT
1. Resolution No. 2024-09 approving the Hanford Hybrid Plant Emissions Mitigation Guidelines Item 3
Resolution 2024-09
-1-
SILICON VALLEY CLEAN ENERGY AUTHORITY
RESOLUTION NO. 2024-09
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SILICON VALLEY
CLEAN ENERGY AUTHORITY APPROVING THE HANFORD HYBRID PLANT
EMISSIONS MITIGATION GUIDELINES ESTABLISHING A FUND OF NO LESS THAN $750,000 AND NO MORE THAN $1.8 MILLION TO FUND PROGRAMS
FOR LOW-INCOME AND DISADVANTAGED COMMUNITIES TO HELP REDUCE
EMISSIONS FROM GREENHOUSE GASES THROUGH ELECTRIFICATION
ACTIVITIES IN KINGS COUNTY AND AUTHORIZING THE CHIEF EXECUTIVE
OFFICER TO DISBURSE THE FUNDS
THE BOARD OF DIRECTORS OF THE SILICON VALLEY CLEAN ENERGY AUTHORITY HEREBY RESOLVES AS FOLLOWS:
WHEREAS, the Silicon Valley Clean Energy Authority (“SVCE”) was formed on March 31, 2016, pursuant to a Joint Powers Agreement to promote, develop, conduct, operate, and manage energy programs in Santa Clara County; WHEREAS, the Board adopted Resolution No. 2023-06 directing staff to develop a policy and/or guidelines to set aside funds to be used for programs and/or projects to help mitigate impacts of emissions associated with the Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System; WHEREAS, Staff brought a proposal for establishing the Hanford Hybrid Plant Emissions Mitigation Guidelines to the Executive Committee in April 2024 to receive feedback;
WHEREAS, Staff has incorporated direction from the Executive Committee into the Hanford Hybrid Plant Emissions Mitigation Guidelines and has prepared an adjusted set of guidelines, set forth in Exhibit A;
WHEREAS, the Hanford Hybrid Plant Emissions Mitigation Guidelines establish the Hanford Hybrid Plant Emissions Mitigation Fund of no less than $750,000 and no more than $1.8 million;
WHEREAS, the SVCE Board of Directors wishes to delegate authority to the Chief Executive Officer (“CEO”) to disburse up to $1.8 million from the Hanford Hybrid Plant Emissions Mitigation Fund;
NOW, THEREFORE, the Board of Directors of the Silicon Valley Clean Energy Authority does hereby approve and adopt the Hanford Hybrid Plant Emissions Mitigation Guidelines, as set forth in Exhibit A.
Item 3
Attachment 1
Resolution 2024-09
-2-
PASSED AND ADOPTED this 8
th day of May 2024, by the following vote:
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 Alternate Director Ristow
City of Milpitas Director Chua
City of Monte Sereno Director Mekechuk
City of Morgan Hill Director Martinez Beltran
City of Mountain View Director Showalter
County of Santa Clara Director Lee
City of Saratoga Director Walia
City of Sunnyvale Director Klein
________________________________
Chair
ATTEST:
__________________________________
Andrea Pizano, Board Clerk
Item 3
Attachment 1
Resolution 2024-09
-3-
Exhibit A - Hanford Hybrid Plant Emissions Mitigation Guidelines I. SVCE staff shall seek approval for a one-time funding allocation to establish the Hanford Hybrid Plant Emissions Mitigation Fund (“Hanford Fund”).
II. The Hanford Fund’s goal is to fund programs for low-income and disadvantaged communities to help reduce emissions from greenhouse gases through electrification activities in Kings County.
III. SVCE staff shall seek approval for a one-time funding allocation of $750,000 to $1.8 million after the approval of the Hanford Hybrid Plant Emissions Mitigation Guidelines.
IV. A stakeholder engagement process to receive feedback directly from Kings County community members about the types of emission reduction programs that would be most beneficial to Kings County residents shall be conducted.
V. SVCE staff shall use the feedback collected as part of the stakeholder engagement process to determine the best course of action for spending Hanford Hybrid Plant Emissions Mitigation funds.
VI. Hanford Hybrid Plant Emissions Mitigation funds shall be used to pay for programs to help reduce emissions from greenhouse gases through electrification activities in disadvantaged and/or low-income communities in Kings County.
VII. One year after the first disbursement from the Hanford Fund, staff must report on progress to the Board of Directors in the Board Information Packet and annually thereafter until the Hanford Fund has been completely disbursed.
VIII. All funds in the Hanford Fund must be disbursed by June 1, 2036.
Item 3
Attachment 1
Staff Report – Item 4
Item 4: Authorize the Chief Executive Officer to Execute an Agreement with CLEAResult for the SVCE Commercial and Industrial Decarbonization Program with a Not to Exceed Limit of $2,489,087 through December 31, 2027
From: Monica Padilla, CEO
Prepared by: Justin Zagunis, Director of Decarbonization Programs and Policy Joey Lande, Energy Services Principal
Date: 5/8/2024
RECOMMENDATION
Staff recommends the Board authorize the CEO to execute the proposed agreement with CLEAResult for the SVCE Commercial and Industrial (C&I) Decarbonization Program, from the date of contract execution through December 31st, 2027 and for an amount not to exceed $2,489,087.
BACKGROUND
Since 2018, SVCE’s decarbonization program offerings have been growing in number and expanding their reach. The C&I Decarbonization Program represents an important addition to SVCE’s decarbonization program portfolio, serving an entirely new customer segment.
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. SVCE has launched programs targeting residential and small business customers under this umbrella, and is now looking to expand offerings to larger, C&I customers.
SVCE allocated a portion of the FutureFit Homes and Building funds to operate a small-scale C&I decarbonization pilot in 2023. Due to strong customer interest in this program model, SVCE issued a solicitation in February 2024 for a full-scale program.
In March 2024, the Board approved a resolution allocating $2 million in additional funding for this forthcoming C&I decarbonization program. The goal of this program is to support energy and sustainability goals of C&I customers while strengthening relationships with SVCE. The C&I Decarb Program will provide tailored support to SVCE’s C&I customers, in support of their energy and carbon reduction goals. The core value proposition to customers is no-cost technical and project management support, with a focus on no and low-cost savings opportunities stemming from behavioral, retro-commissioning and operational (BRO) measures. The program seeks results from projects that are feasible to implement, while providing coaching and technical support to implement more complex, capital projects.
While decarbonization measures are often envisioned as electrification, this is not always possible for C&I customers due to specialized equipment with no or few viable electrification opportunities. For these customers, BRO measures represent the optimal pathway for decarbonizing. However, in addition to BRO measures, the program will support cost-effective electrification projects wherever possible. All projects will be incentivized on an avoided emissions basis, to ensure that program expenditures align with the program’s goals.
Item 4
SILICON VALLEY \3/ CLEAN ENERGY
Agenda Item: 4 Agenda Date: 5/8/2024
ANALYSIS & DISCUSSION
Program Concept
The core concepts behind the C&I program are grounded in a program concept known as Strategic Energy Management (SEM). SEM is a well-understood energy efficiency program model tailored specifically to C&I customers. SVCE’s program will draw core components of the SEM program model, but focus efforts and funding on decarbonization projects rather than energy efficiency. The program will use carbon impacts as the guiding metric to prioritize, assess and incentivize projects with customers. While this is a new approach among C&I customers, many of SVCE’s key accounts have meaningful carbon goals of their own, which can play a strong role in their approach to energy and facilities management.
SVCE launched a limited pilot of the Program in the fall of 2023. While the available budget and timeline restricted service to one SVCE key account, the pilot program conducted outreach to eight SVCE C&I customer accounts. Every customer contacted was interested in the program and indicated their intent to enroll in the full-scale program.
Consultant Selection
SVCE solicited for a vendor with experience in Strategic Energy Management program design and implementation and demonstrated experience in decarbonization with C&I customers. This solicitation was posted on SVCE’s website and distributed to subscribers on SVCE’s listserv and through direct outreach to known program operators. After 4 weeks, seven responses were received from qualified teams with relevant expertise. The overall timeline for the program to-date is below.
The vendor selected through this competitive process was CLEAResult. CLEAResult brings a wealth of experience in Strategic Energy Management, having designed and implemented numerous utility and CCA SEM programs, and having supported the establishment of the program model in California.
The contract and scope of work with CLEAResult is included as Attachment 1. Upon execution of the proposed agreement, CLEAResult will work with SVCE on carbon and energy management training, feasibility assessments, measurement and verification and incentives to SVCE’s C&I customers.
STRATEGIC PLAN
The SVCE C&I Decarbonization Program aligns with SVCE’s Strategic Plan, Goal 12, Measure 7: Develop and implement program(s) for commercial building decarbonization. Broadly, the Program supports Goal 3: to expand SVCE clean energy service with strategic commercial, industrial and institutional customers.
ALTERNATIVE
Do not approve the proposed agreement with CLEAResult. Staff can instead continue efforts to strengthen relationships with C&I customers through continued outreach and SVCE’s generation service, and refer customers to other program administrators who can support customers’ carbon goals through the Item 4
October 2023 February 2024 May 2024 June 2024
SVCE launches C&l
Decarbonization Pilot
Solicitation released
for scaled program
BOD authorizes
CEO to execute
contract
Expanded Program
launch
Agenda Item: 4 Agenda Date: 5/8/2024
implementation of energy efficiency and other demand-side projects. This, however, would limit SVCE’s ability to support decarbonization and drive acceptance of novel electrification concepts in the important C&I sector.
FISCAL IMPACT
The proposed agreement with CLEAResult includes a contract value of $2,489,087, with nearly 75% of expense to be paid on performance, for emission reduction results. The program also includes a customer incentive budget of $2,370,981. The total program budget over the contract duration, including the proposed agreement with CLEAResult as well as customer incentives, is $4,860,068. The C&I program concept already has $2.5 million in funding allocated towards it, as previously approved by the Board. To fully fund the work in this contract, additional funding will be recommended for incorporation in the Programs Budget for Fiscal Year 24/25. At that time there will be a minor fiscal impact, but it will be well within the annual allocation of funding typically assigned to SVCE’s programs.
ATTACHMENTS
1. Proposed Agreement with CLEAResult
Item 4
1/2024 Version 1.0
AGREEMENT BETWEEN THE SILICON VALLEY CLEAN ENERGY AUTHORITY AND
CLEAResult Consulting Inc.
FOR
Commercial and Industrial Decarbonization Strategic Energy Management Program Implementation Services
THIS AGREEMENT (“Agreement”), is entered into the last date of signature (the “Effective Date”) by and between the SILICON VALLEY CLEAN ENERGY AUTHORITY, an independent public agency, ("Authority"), and CLEAResult Consulting Inc., a Texas corporation whose address is 6504 Bridge Point Parkway, Suite 425, Austin, TX 78730 (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 implementation services for commercial and industrial decarbonization strategic energy management program upon the terms and conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date and shall terminate on December 31, 2027, 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 two million four hundred eighty nine thousand and eighty seven dollars ($2,489,087.00) based on the rates and terms set forth in Exhibit "C," which is attached hereto and incorporated herein by this reference.
4. TIME IS OF THE ESSENCE
Item 4
Attachment 1
Draft Agreement with CLEAResult
1/2024 Version 1.0
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. 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 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.
Item 4
Attachment 1
Draft Agreement with CLEAResult
1/2024 Version 1.0
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 reasonably acceptable to Indemnitees , and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually and reasonably incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all reasonable legal expenses and costs incurred by Indemnitees in connection therewith, except that Consultant shall not reimburse the Indemnities for any costs relating to shadow legal counsel that Indemnitees retain independently. Notwithstanding the foregoing, should Consultant fail to defend the Indemnitees or should Indemnitees be required to hire legal counsel to preserve its legal rights, such legal expenses and costs incurred by Indemnitees in connection therewith shall be borne by Consultant.
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 marks, know how, and trade secrets (collectively referred to as “IP Rights”), except as otherwise expressly provided by this Agreement. 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 Item 4
Attachment 1
Draft Agreement with CLEAResult
1/2024 Version 1.0
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. Consultant shall provide thirty (30) days’ advance written notice to the Authority by certified mail, Attention: Chief Executive Officer" of any cancellation or modification impacting compliance with the insurance required by tis section. 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.
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.
Item 4
Attachment 1
Draft Agreement with CLEAResult
1/2024 Version 1.0
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 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
Unless prior written consent from Authority is obtained, only those subcontractors whose names are attached to this Agreement shall be used in the performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall be required Item 4
Attachment 1
Draft Agreement with CLEAResult
1/2024 Version 1.0
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 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 endorsements prior to commencement of any work and will provide proof of compliance to Authority.
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. Upon reasonable advance notice, Consultant shall provide escorted access to such books and records to the representatives of Item 4
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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
The Chief Executive Officer (“Authority Representative”) shall represent the Authority in all matters pertaining to the services to be performed under this Agreement. Keri Macklin (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’s General Counsel, 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. Authority agrees that all proprietary and confidential business information and trade secrets of Consultant (collectively “Confidential Information”) received by Authority in connection with this Agreement and clearly marked as “Confidential” or “Proprietary ” are deemed confidential; however, it is understood that Authority is subject to the California Public Records Act (Gov. Code § 7920.000 et seq.). If a request under the California Public Records Act is made to view any documents Consultant provided to Authority, Authority shall notify Consultant of the request and the date that such records will be released to the requester unless Consultant obtains a court order enjoining that disclosure. If Consultant fails to obtain a court order enjoining that disclosure, Authority may disclose without breach of this Agreement the portion of the Confidential Information that was requested on the date specified.
D. In the event Authority gives Consultant written notice of a “litigation hold” or request under the Public Records Act, then as to all data identified in such notice or request, Item 4
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Consultant shall, at no additional cost to Authority, isolate and preserve all such data pending receipt of further direction from the Authority.
E. Consultant agrees to comply with the confidentiality and data protection provisions set forth in Exhibit “E,” attached hereto and incorporated herein by this reference.
F. The Parties’ 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 Consultant’s and Authority’s regular business hours, or (c) 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:
CLEAResult Consulting Inc.
Attention Legal Department
2000 SW First Ave, Suite 220
Portland, OR 97201
19. TERMINATION
In the event Consultant or Authority fail or refuse to perform any of the provisions hereof at the time and in the manner required hereunder, that Party shall be deemed in default in the performance of this Agreement. If the defaulting Party fails to cure the default within the time specified (which shall be not less than 20 days) and according to the requirements set forth in the notifying Party’s written notice of default, and in addition to any other remedy available to the notifying Party by law, the notifying Party may terminate the Agreement by giving the defaulting party 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 thirty (30) 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 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.
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20. 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.
21. 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.
22. 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.
23. WAIVER
A waiver by Authority or by Consultant 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.
24. 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.
25. 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.
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26. 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.
27. 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.
28. 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.
29. 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.
30. FORCE MAJEURE
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, pandemic, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
31. 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.
32. ATTORNEY FEES
In any litigation or other proceeding by which a Party seeks to enforce its rights under this Item 4
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Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover all attorneys’ fees, experts’ fees, and other costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.
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
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
_______________________________
Joey Lande, Energy Services Principal
RECOMMENDED FOR APPROVAL
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__________________________________________________________ Amrit Singh, Chief Financial Officer/Director of Administrative Services CLEAResult Consulting Inc.
By: ________________________
Name: ________________________
Title: _________________________
Date: __________________________
SILICON VALLEY CLEAN ENERGY
AUTHORITY
A Joint Powers Authority
By: ___________________________
Name: Monica Padilla
Title: Chief Executive Officer
Date: __________________________
APPROVED AS TO FORM:
_______________________
Counsel for Authority
ATTEST:
_____________________
Authority Clerk
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Exhibit A
Scope of Work
1. Tasks. Consultant shall perform the following in order to implement the strategic energy management (“SEM”) program (“Program”):
1.1. Program Start-Up.
1.1.1. Develop mutually agreed upon Program Implementation Plan (“IP”) containing Program processes and procedures, including defining and describing:
a. Program Overview
b. Program Budget and Goals
c. Narrative
1. Program Description
2. Program Delivery and Customer Services
3. Program Design and Best Practices
4. Innovation
5. Metrics
d. Develop mutually agreed upon Program Manual including:
1. Commercial and Industrial (“C&I”) customer eligibility requirements and recruitment
2. Incentive Budget management
3. Targeted measures and/or interventions
4. Customer service and engagement
5. Customer assessments, audits and deliverables
6. Quality Assurance provisions
7. Stakeholder and Program Coordination
e. Develop mutually agreed upon Measurement and Verification (“M&V”) Plan including:
1. Data collection plan
2. Procedures for determining estimated costs, savings, useful life, and carbon impacts
3. Identification of methods, models and/or calculation software that will be used to determine savings and impacts
4. Description of how, when and why different methodologies may be used
5. Complete description of types of data which will be required
1.1.2. Develop and revise as necessary all mutually agreed upon start-up Program documentation and materials needed to implement the Program including:
a. Participation Agreement
b. Rebate/incentive payment calculation templates and forms c. Program explanatory materials such as short slide decks and/or handouts d. Email recruitment templates
e. Educational modules and presentations
1.1.3. Provide, or participate in, training events required to develop and launch the Program.
1.2. Recruiting/Customer Engagement. Consultant will recruit participants based off of a target customer list, to be developed and mutually agreed upon via email with SVCE, including customers that have been identified as having the highest potential for decarbonization. Consultant will offer enrollment throughout the Program, allowing flexibility for participants to join when they are ready.
Consultant will develop and provide materials for potential participants including a FAQ sheet.
1.3. Cohort Delivery. Consultant will deliver a mix of a cohort-based and individualized SEM program, depending on customer preferences and agreement with SVCE. SEM engagement will include group workshops, one-on-one events, funding and incentive analysis, and energy management coaching. Consultant will provide encouragement and targeted technical guidance through onsite visits and virtual check-ins.
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1.4. Project Delivery. Consultant will support customers in the completion of projects under the scope of this program by providing general advisory services. This may include, as applicable and mutually agreed upon, the use of a qualified contractor list, references for technicians with specialization in large commercial and industrial equipment, and/or advising contractors and technicians to ensure that project implementation reflects the recommendations of the Program
1.5. Emissions Reduction Calculations and Reporting. Consultant will provide Program participants with the following report:
1.5.1. Consultant will measure emissions reduction for the Program in alignment with International Performance Measurement and Verification Protocol (IPMVP) where applicable. Consultant will use other methodologies as outlined in Figure 1 when appropriate for energy-adjacent projects focused on decarbonization using the following strategies outlined in the M&V Plan for the program. Consultant will request approval in writing from SVCE for any energy adjacent projects (as defined in the Implementation Plan)) that would use more than 30% of the program overall budget. SVCE will provide approval or denial in writing via email.
Figure 1: Emissions Reductions Calculation Methodologies Project
Type
Strategy Reduction Methodology
Electric
Efficiency
Low-cost or no-cost
efficiency
improvements
IPMVP + SVCE electricity emission factor
Gas
Efficiency
Low-cost or no-cost
efficiency
improvements
IPMVP + U.S. EPA natural gas emission factors for
greenhouse gasses
Capital
Improvement
Projects
(refrigerants,
carbon
capture, or
methane)
Focused on capital-intensive equipment
swaps or upgrades
with particular attention
to refrigeration and
fugitive emissions in
the buildings and
industrial sectors.
Primary approach: IPMVP where applicable as
outlined above
Secondary approach: include examples of mutually
agreed upon peer-reviewed and recognizable
methodologies such as:
• American Carbon Registry, Methodology for
the Quantification, Monitoring, Reporting and
Verification of Greenhouse Gas Emissions
Reductions and Removals from Advanced
Refrigeration Systems
• CPUC Refrigerant Avoided Cost Calculator
• American Carbon Registry, Greenhouse Gas
Emissions Reduction Methodology for
Carbon Capture and Storage Projects
• U.S. Environmental Protection Agency,
Protocol for Quantifying and Reporting the
Performance of Anaerobic Digestion
Systems
• Verified Carbon Standard, VM0001 Infrared
Automatic Refrigerant Leak Detection
Efficiency Project Methodology, v1.1
• Other standards as appropriate
1.5.2. Consultant will prepare a final report (“Decarbonization Report”) for each participant that will be provided to customers and SVCE. The Decarbonization Report will include:
a. An overview of the participant's involvement in the program.
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b. Documentation of activities completed and projects completed. c. Emissions reduction calculations.
d. Any available documentation that demonstrates participant success and engagement, such as team meeting notes, decarbonization policy, etc.
1.6. Program Reporting Requirements. Consultant will provide SVCE with the following reports:
1.6.1. Monthly invoice(s) will include Participation, Savings and Budget Report.
1.6.2. Monthly Project Pipeline Report will include Saving and Budget Forecast Report.
1.6.3. Customer emissions reduction incentive application will be submitted upon project completion to SVCE for review and payment.
1.6.4. Annual Report summarizing projects completed to-date, current participation overview, savings and budget overview to be completed by January 15th for the preceding year
2. Other Services. Notwithstanding anything to the contrary in the Agreement, SVCE agrees that Consultant may market Consultant’s project delivery, decarbonization, strategic energy management, and/or other energy efficiency services directly to any customer and such discussion shall not constitute a conflict of interest so long as such services are outside the scope of the Services Consultant is providing under this SOW. Consultant shall specifically disclose to customers that there is no connection between SVCE and work Consultant does outside of the scope of Services provided under this SOW. The Consultant is prohibited from using any information obtained from SVCE or in the scope of Services provided under this SOW to solicit business from any third party, including customers.
3. Change Procedure. The Agreement, including any exhibits, schedules or attachments including this SOW, contains the entire agreement of the parties regarding the subject matter described in it. In the event of any conflict between the terms and conditions of the Agreement and this SOW, the applicable term or condition of the Agreement supersedes the conflicting term or condition in this SOW, unless the parties clearly express in writing that the SOW includes a change to the Agreement. The provisions of this SOW may not be amended, except by an agreement in writing signed by the party against whom enforcement of any amendment is sought. This SOW may be executed in two (2) or more counterparts, all of which will constitute but one and the same instrument.
4. SVCE Obligations. SVCE will provide the following:
4.1. List of data requirements to capture in Program metrics.
4.2.Customer energy data for participants, as received by SVCE from Pacific Gas & Electric (“PG&E”).
4.2.1. In some cases, customer authorization and data access via Green Button may be the optimal pathway for accessing customer data
4.3. List of eligible customers and contact information in a secure format as mutually agreed upon by the parties via email and refreshed at a regular cadence.
4.4. Marketing to raise awareness of the Program and create sufficient customer demand to meet any Program targets.
4.5.Other support, information, and feedback within five (5) business days of a request from Consultant in connection with the Services provided under this SOW.
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Exhibit B
Schedule of Performance
This schedule may be modified with the email approval of the Authority.
Task Begin Complete
1. Program Startup and Documentation 5/9/2024 5/31/2024
2. Recruiting and Customer Engagement Ongoing Ongoing
3. Cohort Delivery Ongoing Ongoing
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Exhibit C
Compensation
Authority shall compensate Consultant for professional services in accordance with the terms and conditions of this Agreement based on the rates and compensation schedule set forth below.
Compensation shall be calculated based on the hourly rates set forth below up to the not to exceed budget amount set forth below.
The compensation to be paid to Consultant under this Agreement for all services described in Exhibit “A” and reimbursable expenses shall not exceed a total of two million four hundred thousand eighty nine thousand eighty seven dollars ($2,489,087), as set forth below. 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.
Budget.
a. Administration Budget. This SOW is based upon a fixed fee and pay-for-performance basis. Consultant will bill Authority based on the fees in the table below.
Title Rate 2024 2025 2026 2027
Total not to
exceed per
category
Start-up Milestone
Fee charged upon
completion of tasks
in section 6.1 $30,000 $30,000 $0 $0 $0 $30,000
Monthly Fixed Fee
$1,000 per
active
participant
per month $84,000 $282,000 $222,000 $12,000 $600,000
Performance Fee
$230 per
MTCO2e $161,000 $892,954 $600,348 $204,785 $1,859,087
Estimated Annual
Budget $275,000 $1,174,954 $822,348 $216,785
MTCO2e = metric tons of carbon dioxide-equivalent
b. Performance Payments may be issued at the time of completion for any project that does not require post-project implementation measurement, using energy or interval energy data (e.g. projects which calculate savings based on a workpaper). c. Projects that require post project implementation measurement data may be paid at 50% of their value based on a calculated forecast – at the point of project completion – with the remaining 50% being paid once post project measurement data is available and evaluated.
d. Payment. Consultant will provide Authority with an itemized invoice referencing this Agreement on the face of the invoice. Authority will make payment within thirty (30) days of the date of such invoice. All invoices shall be e-mailed to:
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Silicon Valley Clean Energy
Attention: Joey Lande
E-mail: [email protected]
e. Transaction Taxes. Authority agrees, for purposes of any sales tax, use tax, excise tax, valued-added tax, gross receipts tax, or any other transaction tax (collectively, “Sales Taxes”), that Authority is solely responsible for all Sales Taxes that arise under this SOW. The prices under this SOW do not include Sales Taxes, and Authority shall pay all Sales Taxes, if any, charged by Consultant under this SOW.
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). 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 as provided in this paragraph. Consultant 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 any increase or decrease in compensation, shall be incorporated by written amendments to this Agreement.
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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 $1,000,000 per occurrence and $2,000,000 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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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 Item 4
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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 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 Item 4
Attachment 1
Draft Agreement with CLEAResult
1/2024 Version 1.0
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 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 becoming aware 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.
Item 4
Attachment 1
Draft Agreement with CLEAResult
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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 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 4
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Draft Agreement with CLEAResult
Appendix A
SILICON VALLEY
CLEAN ENERGY
Silicon Valley Clean Energy
Board of Directors Meeting
May 8, 2024
Appendix A
Power Resource Contracts Executed by CEO
Nucleus:
(01) SENA (100814)
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 Seller and Silicon Valley Clean Energy Authority, a California joint powers authority Buyer , and each individually a Party and together the Parties , dated as of April 1, 2024 (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 Table in Section 4.3 which Seller has agreed to provide to Buyer from the Unit for such Showing Month. " "
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
the “Contract Quantity
Nucleus:
(01) SENA (100814)
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
1.19 Flexible Capacity Requirements FCR
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 , with respect to a Unit, any and all flexible resource adequacy attributes, 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 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
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.
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
' ” has the meaning specified for such term in the Tariff, ' ”or “ ” means the flexible capacity requirements established “ ” means
that can be counted toward an LSE’s FCR,
‘ ” means the
‘ ’’means Designated RA Capacity consisting of RAR Attributes and, if Nucleus:
(01) SENA (100814)
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
1.29 LSE
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 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) 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
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 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
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. .
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
has the meaning set for in the Tariff for the term “Local Regulatory Authority”, has the meaning specifiedin the Tariff for the term “Load Serving Entity”. ‘ ” means
Sellers failure to
‘ ” are as defined in the Tariff,
' ”has the
‘ ” means, with respect to a Unit, any and all resource adequacy attributes, as Nucleus:
(01) SENA (100814)
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 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.
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
»
' ’’means the
Nucleus:
(01) SENA (100814)
5 ARTICLE 2. UNIT INFORMATION
Name Fifth Standard Solar
Project
Location Fresno County, CA
CAISO Resource ID FIFTHS_2_FSSBT
Unit NQC 117 MW
Unit EFC 117 MW
Resource Type Battery Energy Storage
System
Resource Category (1, 2, 3 or 4) 4
Flexible RAR Category (1, 2 or 3) 2
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
N/A
Run Hour Restrictions 4-hour sustainable output at
maximum discharge per cycle
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
[X] 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:
[ ] RAR Attributes
[ ] LAR Attributes
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
Nucleus:
(01) SENA (100814)
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
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.
Firm RA Product
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
, and with respect to this Contingent Firm RA Product “Contingent Firm” shall have the same meaning as “Unit Firm” in the Master Agreement.
Nucleus:
(01) SENA (100814)
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 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
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:
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
Firm RA Product specified under Section 3.3, then Seller's obligation to deliver the has provided Buyer with timely notice pursuant to this Section 4.5(a) of Seller’s intent Nucleus:
(01) SENA (100814)
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 ;
(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.
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
u
excused under the terms of the Product or by Buyer’s failure to perform Nucleus:
(01) SENA (100814)
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: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
Nucleus:
(01) SENA (100814)
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 e 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: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
u »
subject to agreement of such Parties, in each Party's sol Nucleus:
(01) SENA (100814)
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 his 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 respective Scheduling Coordinators) to allow such transferee to utilize the re-sold Product.
ARTICLE 10. MARKET BASED RATE AUTHORITY
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.
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
part of Buyer's process of seeking approval from its Board of Directors for t cause its Scheduling Coordinator to cooperate reasonably with Buyer and Buyer's transferee (and their Upon Buyer’s written request,
Nucleus:
(01) SENA (100814)
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: Michael J. Yen Name:
Title: Confirmations Team Lead Title:
Date: Date: April 1, 2024
DocuSign Envelope ID: 1733EDB6-38BF-4C54-B5F6-039FB4C66495 Appendix A Shell Energy
DocuSigned by:
M/wca. pajjda.
573FC104110B4C0...
Monica Padilla
CEO
3/29/2024
Bilateral Import Capability Transfer (SVCE Sells)
1 CONFIRMATION LETTER
BETWEEN
SILICON VALLEY CLEAN
ENERGY
AND
DYNASTY POWER, INC.
This Confirmation Letter including all appendices hereto (“Confirmation”) confirms the transaction between Dynasty Power Inc., an Alberta corporation (“Buyer”), and Silicon Valley Clean Energy, a joint powers authority (“Seller”), each individually a “Party” and together the “Parties”, dated as of March 22, 2024 (the “Confirmation Effective Date”) in which Seller agrees to provide to Buyer the right to the Product, as such term is defined in this Confirmation, in the amounts described in this Confirmation (the “Transaction”). This Transaction is governed the Western Systems Power Pool Agreement effective as of September 11, 2023, as amended from time to time, but not including any Exhibit or Service Schedule thereto unless and to the extent that such Exhibit or Service Schedule is expressly incorporated herein (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 described to them in the Master Agreement or, if not defined in the Master Agreement, in the CAISO Tariff. To the extent this Confirmation is inconsistent with any provision of the Master Agreement, this Confirmation shall govern the rights and obligations of the Parties hereunder.
ARTICLE 1. TRANSACTION TERMS
1.1 Product
Existing Contract Import Capability
1.2 Delivery of Product
Seller shall sell and deliver to Buyer, and Buyer shall receive and purchase from Seller, the Product at the Delivery Point in the amount of the applicable Contract Quantity for each day of each month of the Delivery Period.
1.3 Delivery Period and Term
(a) Delivery Period. The Delivery Period shall be
inclusive, unless terminated earlier in accordance with the terms of this Agreement.
(b) Term. The Term of this Transaction shall commence upon the Confirmation Effective Date and shall continue until the later of (i) the expiration of the Delivery Period or (ii) the date the Parties’ obligations under this Confirmation have been satisfied. This Confirmation shall be effective and DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
Bilateral Import Capability Transfer (SVCE Sells)
2 binding as of the Confirmation Effective Date.
1.4 Delivery Point
The Delivery Point shall be the CAISO Branch Group corresponding to the CAISO Intertie
1.5 Contract Quantity
The Contract Quantity for each day of each applicable Contract Month is as follows:
Contract Quantity (MWs for each day of such Contract Month) Month, Year Contract Quantity
(MWs)
1.6 Contract Price
The Contract Price means, for any Contract Month, the price specified in the Contract Price table as set forth below.
CONTRACT PRICE TABLE
Month, Year Contract Price
($/kW-month)
ARTICLE 2. DELIVERY OBLIGATIONS
2.1 Delivery of Product
Within three (3) Business Days after the date that Seller receives the One-Time Payment from Buyer, Seller shall register the Bilateral Import Capability Transfer of the Product in the amount of the Contract Quantity at the Delivery Point in CAISO’s CIRA Tool(or successor platform)(the “Registration”). Seller shall complete promptly such other actions required by the CAISO to effect such transfer.
As soon as reasonably practicable thereafter, but no later than three (3) Business Days from Registration, Buyer shall accept and confirm Seller’s Registration in CAISO’s CIRA Tool and will then communicate to Seller whether the Bilateral Import Capability Transfer from Seller to Buyer of the Product in the amount of the Contract Quantity at the Delivery Point was successful or unsuccessful (a successful transfer, the “Transfer Completion Email”). If the Bilateral Import Capability Transfer from Seller to Buyer of the Product in the amount of the Contract Quantity at the Delivery Point is unsuccessful, the Parties shall begin the DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
Bilateral Import Capability Transfer (SVCE Sells)
3 Registration process set forth in this Section 2.1 again, until the Parties receive a Transfer Completion Email.
2.2 Buyer’s Re-Sale of Product
Buyer may re-sell, at its sole cost and expense, all or a portion of the Product acquired under this Confirmation.
ARTICLE 3. PAYMENT
3.1 One-Time Payment
Buyer shall make a payment (“One-Time Payment”) to Seller no later than (10) Business Days after the date an invoice is received. Seller shall provide Buyer the invoice for the One-Time Payment no later than seven (7) Business Days from the Confirmation Effective Date.
The One-Time Payment shall be calculated as follows:
One-Time Payment = ∑
n
i(Ai × Bi × 1000)
where:
A = Contract Price (in $/kW-month) for Contract Month i B = Contract Quantity i (in MW) transferred by Seller for Contract Month i
i = Each Contract Month
n = number Contract Months
The payment calculation shall be rounded to two decimal places. For illustrative purposes, and assuming Seller delivers the full Contract Quantity, the One-Time Payment
3.2 Offset Rights
Either Party may offset any amounts owing to it for revenues, penalties, fines, costs reimbursement, or other payments pursuant to Section 9 of the Master Agreement against any future amounts it may owe to the other Party under this Confirmation.
ARTICLE 4. CONFIDENTIALITY
(a) Both Parties may disclose the terms and conditions of this Agreement and any and all written or recorded or oral information, data, analyses, documents, and materials furnished or made available by a Party to the other Party in connection with this Agreement to the CAISO, the CPUC, DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
Bilateral Import Capability Transfer (SVCE Sells)
4 and all divisions thereof, the CEC, and any Governmental Authority; provided, that each disclosing Party shall use reasonable efforts to limit, to the extent possible, the information disclosed and the ability of any such applicable Governmental Authority or the CAISO to further disclose such information;
(b) Both Parties may disclose the terms of this Confirmation to the CAISO, as necessary, to effectuate Seller’s performance and the transfer of the Product and the Parties acknowledge that the CAISO may publicly disclose the transfer of the Product from Seller to Buyer in accordance with the CAISO Tariff promptly following Seller’s performance; (c) 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; and
(d) Each Party recognizes that this Confirmation is subject to the requirements of the California Public Records Act (Government Code Section 6250 et seq.); and, in the event of a public records requests pursuant to this act or any other applicable law, either party may disclose this Confirmation and such disclosure shall not be a violation of this Article 4; provided, that each disclosing Party shall first provide notice of its intended disclosure and cooperate reasonably with the other party in such other party’s efforts to maintain the confidentiality of this Confirmation or its contents.
ARTICLE 5. GENERAL PROVISIONS
5.1 Governing Law
Notwithstanding Section 24 of the Master Agreement, this Transaction and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law.
5.2 Collateral/Credit Requirements
Notwithstanding any provision in the Master Agreement to the contrary, including Section 27, neither Party shall be required to post collateral or other security for this Transaction.
5.3 No Recourse to Members of Buyer and Seller
Seller 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. Seller will solely be responsible for all of its debts, obligations and liabilities accruing and arising out of DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
Bilateral Import Capability Transfer (SVCE Sells)
5 this Confirmation. Neither Buyer no Seller will have any rights and shall not make any claims, take any actions or assert any remedies against any of the other party’s constituent members, or the officers, directors, advisors, contractors, consultants or employees of such other party or such other party’s constituent members, in connection with this Confirmation.
5.4 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, facsimile or scanned signatures as originals under this Confirmation. Delivery of an executed signature page of this Confirmation by facsimile or electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page.
5.5 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, no amendment or modification to this Transaction shall be enforceable except through a Documentary Writing executed by both Parties.
[Signature page follows]
DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
Bilateral Import Capability Transfer (SVCE Sells)
6 In WITNESS WHEREOF, the Parties have caused this Confirmation to be duly executed as of the Confirmation Effective Date:
DYNASTY POWER INC., an
Alberta corporation
By:
Name:
Title:
SILICON VALLEY CLEAN
ENERGY, a
California joint powers authority
By:
Name:
Title:
Aisha Khan
Manager, Settlements
3/28/2024
DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 MonicaPadilla
CEO
4/3/2024
Appendix A Dynasty Power, Inc.
x DocuSigned by:
573FC104110B4C0...
Bilateral Import Capability Transfer (SVCE Sells)
7 APPENDIX A
DEFINED TERMS “Agreement” has the meaning specified in the introductory paragraph of this Confirmation. “Bilateral Import Capability Transfer” is the transfer of Existing Contract Import Capability from one Market Participant (as defined in the CAISO Tariff) to another, as described in the CAISO Tariff. “Branch Group” means the branch group name used by the CAISO to represent the location of an Intertie with a Maximum Import Capability. “Buyer” has the meaning specified in the introductory paragraph of this Confirmation and shall have the same meaning as “Purchaser” under the Master Agreement. “CAISO” means the California Independent System Operator Corporation, or any successor entity performing the same functions. “CAISO Tariff” means the California Independent System Operator Corporation Tariff, Business Practice Manuals (BPMs), Operating Agreements, and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time to time and approved by FERC, if applicable. “CEC” means the California Energy Commission. “Confirmation” has the meaning specified in the introductory paragraph of this Confirmation. “Confirmation Effective Date” has the meaning specified in the introductory paragraph of this Confirmation. “Contract Month” means the month during the Delivery Period as set forth in the Contract Quantity Table specified Section 1.5. “Contract Price” has the meaning specified in Section 1.6. “Contract Quantity” has the meaning specified in Section 1.5. “CPUC” means the California Public Utilities Commission. “Delivery Period” has the meaning specified in Section 1.3(a). “Delivery Point” has the meaning specified in Section 1.4.
DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
Bilateral Import Capability Transfer (SVCE Sells)
8 “Existing Contract Import Capability” has the meaning set forth in the CAISO Tariff. “Governmental Authority” means any: (a) federal, state, local, municipal or other government; (b) 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 (c) court or governmental tribunal. “Intertie” has the meaning set forth in the CAISO Tariff. “Master Agreement” has the meaning specified in the introductory paragraph of this Confirmation. “MW” means megawatt (or 1,000 kilowatts) of alternating current electric energy generating capacity. “Product” has the meaning specified in Section 1.1. “Registration” has the meaning specified in Section 2.1. “Scheduling Point” has the meaning set forth in the CAISO Tariff. “SC” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning specified in the introductory paragraph of this Confirmation. “Term” has the meaning specified in Section 1.3(b). “Transfer Completion Email” has the meaning specified in Section 2.1 DocuSignEnvelopeID:CA231BE5-7C0B-492B-9425-3ED076B5FB51 Appendix A Dynasty Power, Inc.
1 EEI RESOURCE ADEQUACY CONFIRMATION
This confirmation (“Confirmation”) confirms the transaction between NRG Business Marketing LLC (“NBM”), (“Party A”) and Silicon Valley Clean Energy Authority (“Party B”), each individually a “Party” and together the “Parties”, dated as of March 22, 2024 (the “Effective Date”), by which Seller agrees to sell and deliver, and Buyer agrees to purchase and receive, the Product. This Transaction is governed by the Edison Electric Institute Master Power Purchase and Sale Agreement between the Parties dated November 28, 2016 as amended from time to time (the “Master Agreement”). The Master Agreement and this Confirmation, including any applicable appendices, exhibits or amendments hereto, 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 Master Agreement are defined in the Tariff. References to Sections are references to Sections of this Confirmation unless stated to be references to Sections of the Master Agreement or a statute.
The terms of the Transaction to which this Confirmation relates are as follows:
Seller: NRG Business Marketing LLC Buyer: Silicon Valley Clean Energy Authority Ref No. 143454218
Product: RAR Local RAR Flexible Capacity, as further
described in Appendix B
Contract Price ($/kW-month): , as further described in Appendix B Contract Quantity (MW): in for each month, as further described in Appendix B Delivery Period: inclusive, as further described
Unit Information: Described in Appendix B
Payment Terms: 20th Day of the month following the Delivery Period, as further described in Article 3
This Confirmation is subject to the Appendices identified below and attached hereto:
Appendix A – Defined Terms
Appendix B – Product and Unit Information
Appendix C – Notice Information
Appendix D – Planned Outage Schedule
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
KI KI
2 IN WITNESS WHEREOF, the Parties have signed this Confirmation effective as of the Effective Date.
NRG Business Marketing LLC
Sign:
Print: Jay Robertson
Title: Director, West Commercial Operations
Silicon Valley Clean Energy Authority
Sign:
Print:
Title:
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC CEO
Monica Padilla
DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
x DocuSigned by:
573FC104110B4C0...
3 ARTICLE 1
TRANSACTION TERMS
Product, Delivery Period, Contract Quantity, Contract Price and other specifics of the Product are described on page 1 of this Confirmation and in Appendix B. Appendices A, B, C, and D are incorporated into this Confirmation.
☐ Firm RA Product:
Seller shall provide Buyer 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 Buyer 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 Buyer for penalties or fines pursuant to the terms of Section 2.5. ☒ Contingent Firm RA Product:
Seller shall provide Buyer 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 as a result of any reduction of the Contract Quantity of the Unit in accordance with Section 2.2, Seller shall have the option to notify 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 2.3. If the Unit is not available to provide the full amount of the Contract Quantity as a result of any reason other than as provided in Section 2.2, then Seller shall have the option to supply Alternate Capacity pursuant to Section 2.3 to fulfill the remainder of the Contract Quantity during such period. If Seller fails to provide Buyer with the Expected Contract Quantity from the Unit and has failed to supply Alternate Capacity to fulfill the remainder of the Expected Contract Quantity during such period, then Seller shall be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Section 2.5.
ARTICLE 2
DELIVERY OBLIGATIONS AND ADJUSTMENTS
2.1 Sale and Delivery of Product
(a) For each day of the Delivery Period, Seller shall sell and deliver to Buyer, and Buyer 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 each day of the Delivery Period is firm and will not be excused for any reason.
(b) Seller shall deliver the Expected Contract Quantity by submitting to CAISO in its Supply Plan the Shown Unit(s) and the characteristics of the Shown Unit(s) and DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
4 Product for Buyer, as further specified in Appendix B, all in compliance with this Confirmation.
(c) Seller shall cause all Supply Plans to meet and be filed in conformance with the requirements of the CPUC and the Tariff. Seller shall submit, or cause the Shown Unit’s SC to submit, on a timely basis with respect to each applicable day of the Delivery Period, Supply Plans in accordance with the Tariff and CPUC requirements to identify and confirm the Product delivered to Buyer for each day of the Delivery Period. The total amount of Product identified and confirmed for each day of the Delivery Period shall equal the Expected Contract Quantity. (d) Seller may sell and deliver Product from a Shown Unit that meets the requirements set forth in Appendix B. In no event shall a Shown Unit utilize coal or coal materials as a source of fuel or be a nuclear generating facility. A Shown Unit must be a specific resource that is connected directly to the CAISO controlled grid or be under the operational control of CAISO. A Shown Unit may not be an unspecified import. Seller shall identify the Shown Unit(s) and Expected Contract Quantity by providing Buyer with the specific information contemplated in Appendix B no later than the Notification Deadline for the Delivery Period. (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 day of the Delivery Period, 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 Delivery Period.
(f) The Product is delivered and received when the CIRA Tool shows that the Supply Plan submitted in compliance with Buyer’s instructions, including Buyer’s instructions to withhold all or part of the Expected Contract Quantity from Seller’s Supply Plan for any day of the Delivery Period during the Delivery Period, has been accepted for the Product from the Shown Unit(s) by CAISO. Seller has failed to deliver the Product if (i) Buyer has elected to submit the Product from the Shown Unit(s) 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 day of the Delivery Period in such amount as instructed by Buyer for the applicable day(s) of the Delivery Period. Seller shall not have failed to deliver the Expected Contract Quantity if Buyer 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 Buyer or Seller to file an advice letter or other request for authorization with the CPUC.
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
5 2.2 Adjustments to Contract Quantity
If Seller is providing Contingent Firm RA Product, Seller’s obligation to deliver the Contract Quantity for each day of the Delivery Period may be reduced at Seller’s option by the amount of any Planned Outages which exist with respect to any portion of the Unit during the applicable days of such Planned Outages; provided, (i) Seller notifies Buyer by the Notification Deadline applicable to that day of the Delivery Period of the amount of Product from the Unit that Buyer may include in Buyer’s Compliance Showings for each day of that month as a result of such Planned Outage, and (ii) such reduction is able to be reflected on the Supply Plans in accordance with the Tariff.
In the event Seller is unable to provide the Contract Quantity for any portion of a Delivery Period because of a Planned Outage of a Unit, Seller has the option, but not the obligation, to provide Product for such portions of such Delivery Period from Replacement Units, provided Seller provides and identifies such Replacement Units in 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 each day of each Delivery Period for any reason, including, without limitation, as provided in Section 2.2, or Seller desires to provide a portion of the Contract Quantity for any day of a Delivery Period from a different generating unit other than the Unit, then Seller may, at no cost to Buyer, provide Buyer with replacement Product from one or more Replacement Units in an amount such that the total amount of Product provided to Buyer from the Unit and any Replacement Unit(s) for each day of the Delivery Period is not more than the Contract Quantity, provided that in each case:
(a) Seller shall notify Buyer in writing of its intent to provide Alternate Capacity and shall identify the Replacement Unit(s) from which such Alternate Capacity shall be provided before the Notification Deadline for such Delivery Period; and (b) The designation of any Replacement Unit(s) by Seller shall be subject to Buyer’s prior written approval, which shall not be unreasonably withheld.
Once Seller has identified in writing any Replacement Units that meet the requirements of this Section 2.3, and Buyer has approved such Replacement Units as consistent with this Confirmation, then any such Replacement Units shall be deemed a Unit for purposes of this Confirmation for that Delivery Period. Buyer’s approval of a Replacement Unit as to a given Delivery Period shall not be construed as approval of such Replacement Unit for any subsequent Delivery Period.
2.4 Planned Outages
As of the Confirmation Effective Date, Seller and Buyer have agreed to all Planned Outages as specified in Appendix D (“Planned Outage Schedule”) for all relevant Delivery Periods for the following calendar year, or until the end of the Delivery Period, whichever is shorter. Seller may provide Buyer with proposed changes to the Planned Outage Schedule from time to time. Within ten (10) Business Days after Buyer’s receipt of any such Seller proposed changes, Buyer shall notify Seller in writing of reasonable requests for modifications to such Seller proposed changes, DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
6 and Seller shall, to the extent consistent with Prudent Operating Practice, accommodate Buyer’s requests regarding the timing of any Seller proposed changes to the Planned Outage Schedule.
2.5 Buyer’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 day of the Delivery Period, Seller shall be liable for damages pursuant to Section 4.1 of the Master Agreement.
(b) Seller shall indemnify, defend and hold harmless Buyer from any penalties, fines or costs, including Environmental Costs, assessed against Buyer 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 shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties, fines or costs. If Seller fails to pay the foregoing penalties, fines or costs, or fails to reimburse Buyer for those penalties, fines or costs, then, without prejudice to its other rights and remedies, Buyer may setoff and recoup those penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation or the Master Agreement.
2.6 Buyer’s Re-Sale of Product
(a) Buyer 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.
For any such a resale, the Resource Adequacy Plan of Buyer as used herein will refer to the Resource Adequacy Plan of Subsequent Buyer. Seller shall, or shall cause the Shown 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 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 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 Shown Unit’s SC to comply with this Confirmation, Seller shall be liable to Buyer for the same amounts Seller would have owed Buyer under this Confirmation if Buyer had not resold the Product.
(b) Buyer shall 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 each Delivery Period for which Buyer has resold Product. Buyer shall notify Seller of any subsequent changes or further resales no later than two (2) Business Days before the Notification Deadline for the Delivery Period.
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
7 (c) If CAISO or CPUC develops a centralized capacity market, Buyer shall have the exclusive right to direct the Seller or the Unit’s SC to offer, bid, or otherwise submit the Expected Contract Quantity for re-sale into such market, and Seller and the Unit’s SC shall comply with the Buyer’s direction and Buyer shall retain and receive all revenues from such re-sale.
(d) Buyer 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 Buyer’s direction and, to the extent that the CAISO designates the Expected Contract Quantity as CPM Capacity, Buyer shall be entitled to retain and receive the CPM Capacity Payment. Unless otherwise instructed by Buyer, (i) Seller shall not, and shall cause the Unit’s SC to not, offer any portion of the Expected Contract Quantity to CAISO as CPM Capacity and (ii) if CAISO designates any portion of the Contract Capacity as CPM Capacity, then Seller shall, and shall cause the Unit’s SC to, promptly (and in any event within one (1) Business Day of the time Seller receives notification from CAISO) notify Buyer 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 Buyer has agreed to accept such designation.
(e) Notwithstanding any provisions herein, Buyer shall not re-sell the Product outside the CAISO.
ARTICLE 3
PAYMENTS
3.1 Payment
After Seller has delivered the Expected Contract Quantity in accordance with Section 2.1 and issued its invoice, Buyer shall pay for the Product as provided in Article Six of the Master Agreement and this Confirmation. Buyer shall make a monthly payment to Seller for each Unit by the later of (i) ten (10) Calendar Days after Buyer’s receipt of Seller’s invoice or (ii) the twentieth (20th) day of the month after the Delivery Period; provided, however, if such day is not a Business Day then payment shall be made by the following Business Day (“RA Capacity Payment”). Each Unit’s RA Capacity Payment shall be equal to the product of (a) the applicable Contract Price for the relevant day of the Delivery Period, (b) the Expected Contract Quantity for the day of the Delivery Period, and (c) 1,000, rounded to the nearest penny (i.e., two decimal places); provided, however, that the RA Capacity Payment shall be adjusted to reflect any portion of Expected Contract Quantity for the Delivery Period that was not delivered in accordance with Section 2.1 for such Showing Month.
3.2 Allocation of Other Payments and Costs
(a) Seller shall 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. Buyer must DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
8 promptly report receipt of any such revenues to Seller. Buyer must pay to Seller any such amounts described in this Section 3.2(a) received by Buyer or a Subsequent Buyer. 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 Buyer under the Master Agreement. (b) Buyer is to receive and retain all revenues associated with the Expected Contract Quantity of Product during the Delivery Period, including any capacity and availability revenues from the Capacity Procurement Mechanism, or its successor, RUC Availability Payments, or its successor, but excluding payments described in Section 3.2(a)(i)-(v) or 3.2(d). Seller shall promptly report receipt of any such revenues to Buyer. Seller shall pay to Buyer 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, Buyer may set off and recoup any such amounts that are not paid to it against amounts owed to Seller under the Master Agreement.
(c) Any Availability Incentive Payments or Non-Availability Charges are for Seller to receive and pay.
ARTICLE 4
OTHER BUYER 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. Buyer is not liable for, and Seller shall indemnify and hold Buyer 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 Buyer’s Duties to Take Actions to Allow Product Utilization Throughout the Delivery Period, Buyer and Seller shall take all commercially reasonable actions and execute all documents or instruments reasonably necessary to ensure (a) Buyer’s rights to the Expected Contract Quantity for the sole benefit of Buyer or any Subsequent Buyer, and (b) that Buyer 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 and 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 RAR 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 DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
9 conform this Transaction to subsequent clarifications, revisions, or decisions rendered by CAISO or an applicable Governmental Body to maintain the benefits of the Transaction.
4.3 Seller’s Representations and Warranties
Seller represents and warrants to Buyer 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 the Shown Unit(s);
(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 Buyer; and
(e) Seller has notified or will notify the Shown Unit’s SC that Buyer 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 Buyer, along with appropriate documentation supporting the amount of those revenues.
4.4 Market Based Rate Authority
Upon Buyer’s written request, Seller shall, in accordance with 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 5
AMENDMENTS TO THE MASTER AGREEMENT; GENERAL PROVISIONS
5.1 Termination Payment
For this Transaction, the following is inserted at the end Section 5.2 of the Master Agreement:
“If Buyer is the Non-Defaulting Party and Buyer reasonably expects to incur or be liable for any penalties, fines or costs from CAISO, or any Governmental Body, because Buyer or a Subsequent Buyer is not able to include the applicable Expected Contract Quantity in a Compliance Showing due to Seller’s Event of Default, then Buyer may, in good faith, DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
10 estimate the amount of those penalties, fines or costs and include the estimate in its calculation of the Settlement Amount, subject to accounting to Seller when those penalties, fines or costs are finally ascertained. If this accounting establishes that Buyer’s estimate exceeds the actual amount of penalties, fines or costs, Buyer must promptly remit to Seller the excess amount with interest in accordance with Section 6.2 of the Master 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.”
5.2 Confidentiality
Notwithstanding anything in the Master Agreement:
(a) Buyer may disclose information as necessary in order to support its Compliance Showings or otherwise show it has met its Compliance Obligations; (b) Seller may disclose as necessary to a Shown Unit’s SC or as necessary for submitting Supply Plans;
(c) Each Party may disclose information as necessary to the independent evaluator or other administrator of any competitive solicitation process of Buyer, which in turn may disclose such information as necessary to CAISO or any Governmental Body; and
(d) Buyer may disclose information to any Subsequent Buyer.
5.3 Dodd-Frank Act
Each Party represents and warrants to the other that it is an “eligible contract participant” within the meaning of the United States Commodity Exchange Act §1a(18). Without limiting Section
10.10 of the Master Agreement, 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).
5.4 Change in Law
If any action by the CPUC, CAISO or any Governmental Body having jurisdiction results in any change in applicable law occurring after the Confirmation Effective Date that (i) materially changes Buyer’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 requirements for Resource Adequacy Requirements such that the Product can no longer be counted towards Buyer’s DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
11 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 Product sold hereunder in order to maintain the original intent of the Parties under this Confirmation. If the Change in Law results in the Product no longer being able to be counted towards Buyer’s Resource Adequacy Requirements, and the Parties have not reached agreement within thirty (30) days after the initiation of discussions regarding the Change in Law on amendments that would allow the Product to be able to be counted towards Buyer’s Resource Adequacy Requirements, Buyer may terminate this Confirmation upon written notice to Seller, which shall be effective the next Business Day after such notice is received, and any such termination shall be without liability to either Party, subject to payment of any amounts owing as of the effective date of such termination.
5.5 Governing Law
This Confirmation, including the provisions and requirements of the Tariff and the definition of the Product and its components, and any portion of the Master Agreement applicable to this Transaction shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws rules thereof.
5.6 Credit and Collateral
Except as provided in the Master Agreement, neither Party shall be required to post collateral or other security for this Transaction.
5.7 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. The Parties may rely on electronic, facsimile or scanned signatures as originals under this Confirmation. Delivery of an executed signature page of this Confirmation by facsimile or electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page.
5.8 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 to the contrary, this Transaction may be confirmed only through a written document executed by both Parties, and no amendment or modification to this Transaction shall be enforceable except through a written document executed by both Parties.
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix A - 1
APPENDIX A
DEFINED TERMS
“Alternate Capacity” means replacement Product which Seller has elected to provide to Buyer in accordance with the terms of Section 2.3.
“CAISO” means the California ISO or the successor organization to the functions thereof. “Capacity Attributes” means attributes of the Shown Unit that may be counted toward Compliance Obligations, including: flexibility, dispatchability, physical location or point of electrical interconnection of the Shown Unit; Unit ability to generate at a given capacity level, provide ancillary services, or ramp up or down at a given rate; any current or future defined characteristics, certificates, tags, credits, or accounting constructs of the Shown Unit, howsoever entitled, identified from time to time by the CAISO or a Governmental Body having jurisdiction over Compliance Obligations.
“CIRA Tool” means the CAISO Customer Interface for Resource Adequacy. “Compliance Obligations” means, as applicable, RAR, Local RAR and FCR. “Compliance Showings” means the applicable LSE’s compliance with the Resource Adequacy Requirements of the CPUC for an applicable Delivery Period. “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 the Resource Adequacy Requirements.
“Delivery Period” means the period specified in Appendix B during which Seller shall deliver the Product to Buyer.
“Effective Flexible Capacity” has the meaning given in the CAISO Tariff. “Environmental Costs” means (i) costs incurred in connection with acquiring and maintaining all environmental permits and licenses for the Product, (ii) the Product’s compliance with all applicable environmental laws, rules, and regulations, including capital costs for pollution mitigation or installation of emissions control equipment required to permit or license the Product, (iii) all operating and maintenance costs for operation of pollution mitigation or control equipment, (iv) costs of permit maintenance fees and emission fees as applicable, (v) the costs of all emission reductions that have been authorized by a local air pollution control district or emissions trading credits or units pursuant to the California Health & Safety Code, market based incentive programs such as the South Coast Air Quality Management District’s Regional Clean Air Incentives Market, authorizations to emit sulfur dioxide and oxides of nitrogen by the Environmental Protection Agency, and any costs related to greenhouse gas emissions required by any applicable environmental laws, rules, regulations, or permits to operate, and (vi) costs associated with the disposal, clean-up, decontamination or remediation, on or off site, of hazardous substances.
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix A - 2
“Expected Contract Quantity” means, with respect to any particular day 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 as Alternate Capacity with respect to such day, and (b) for Contingent Firm RA Product, the Contract Quantity of Product, including the amount of Contract Quantity of Product that Seller has elected to provide as Alternate Capacity with respect to such day, less any reductions to Contract Quantity for such day consistent with Section 2.2 with respect to which Seller has not elected to provide Alternate Capacity.
“Firm RA Product” has the meaning set forth in Article 1 herein. “Flexible Capacity” or “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. “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. “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. “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 the CAISO Tariff. “Notification Deadline” is five (5) Business Days before the relevant deadlines for the corresponding Compliance Showings applicable to the relevant Showing Month, or three (3) Business Days before the relevant deadlines for the corresponding Compliance Showings for the Delivery Period, if applicable.
“Planned Outage” means, subject to and as further described in the CPUC Decisions, a CAISO-approved, planned or scheduled disconnection, separation or reduction in capacity of the Unit that is conducted for the purposes of carrying out routine repair or maintenance of such Unit, or for the purposes of new construction work for such Unit. “Product” means RAR, Local RAR and/or FCR for the Delivery Period, Unit, Contract Quantity, Contract Price and other specifications described on page 1 of this Confirmation and contained in Appendix B.
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix A - 3
“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 Buyer 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 Buyer 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. “Replacement Unit” means a generating unit meeting the requirements specified in Section 2.3. “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. “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.
“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, but not necessarily identified by Seller to Buyer on the Effective Date.
“Subsequent Buyer” means the Buyer of Product from Buyer in a re-sale of Product by Buyer. “Tariff” means the CAISO Tariff, including any current CAISO-published “Operating Procedures” and “Business Practice Manuals,” in each case as amended or supplemented from time to time.
“Unit” means the generation unit described in Appendix B. A Unit may not be a nuclear or coal-fired generating facility. “Unit EFC” means the lesser of the Unit’s Effective Flexible Capacity as set by CAISO as of the Effective Date and that of the Unit on a subsequent date of determination. “Unit NQC” means the lesser of the Unit’s Net Qualifying Capacity as set by CAISO as of the Effective Date and that of the Unit on a subsequent date of determination.
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix B - 1
APPENDIX B
PRODUCT AND UNIT INFORMATION
Product:
RAR Local RAR Flexible Capacity
and all Capacity Attributes related to such Product.
Delivery Period:
Contract Quantity and Contract Price:
Contract
Month/Year
Flexible RAR
Contract Quantity
(MWs)
RA Capacity
Price
($/kW-month)
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix B - 2
Unit Information
Name
Sunrise Power Project
AGGREGATE II
Location Fellows, CA
CAISO Resource ID SUNRIS_2_PL1X3
Product Type (Flexible or
Generic) Flexible
SCID of Resource ALSR
Resource Type Natural Gas
Resource Category (1, 2, 3 or 4) 4
Point of Interconnection with the
CAISO Controlled Grid
(“Substation”)
NA
Flexible RAR Category (1, 2 or 3) 1
Path 26 (North, South or None) South
LAR Attributes (Yes or No) No
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
Flexible Capacity Category
(Base/Peak/Super-peak)(as of
the Confirmation Effective Date)
Base
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix C - 1
APPENDIX C
NOTICE INFORMATION
Party A: NRG Business Marketing LLC Party B: Silicon Valley Clean Energy Authority
All notice information for Party A will be
as set forth on the Cover Sheet to the
Master Agreement unless otherwise set
forth below.
All notice information for Party B will be
as set forth on the Cover Sheet to the
Master Agreement unless otherwise set
forth below.
All Notices:
All Notices:
Invoices: Invoices:
Scheduling:
Scheduling:
Wire Transfer:
Wire Transfer:
Credit and Collections: Credit and Collections:
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
Appendix C - 2
Defaults: With additional Notices of an Event of
Default or Potential Event of Default to:
DocuSign Envelope ID: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
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: 3FF35308-4991-46FE-A618-C18FCFBC58DC DocuSign Envelope ID: 7BE63B98-6575-45D2-8ABD-896D85388241 Appendix A NRG - Purchase
1 EEI RESOURCE ADEQUACY CONFIRMATION
This confirmation (“Confirmation”) confirms the transaction between NRG Business Marketing LLC (“NBM”), (“Party A”) and Silicon Valley Clean Energy Authority (“Party B”), each individually a “Party” and together the “Parties”, dated as of March 25, 2024 (the “Effective Date”), by which Seller agrees to sell and deliver, and Buyer agrees to purchase and receive, the Product. This Transaction is governed by the Edison Electric Institute Master Power Purchase and Sale Agreement between the Parties dated November 28, 2016 as amended from time to time (the “Master Agreement”). The Master Agreement and this Confirmation, including any applicable appendices, exhibits or amendments hereto, 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 Master Agreement are defined in the Tariff. References to Sections are references to Sections of this Confirmation unless stated to be references to Sections of the Master Agreement or a statute.
The terms of the Transaction to which this Confirmation relates are as follows:
Buyer: NRG Business Marketing LLC Seller: Silicon Valley Clean Energy Authority Ref No. 143577028
Product: RAR Local RAR Flexible Capacity, as further
described in Appendix B
Contract Price ($/kW-month): , as further described in Appendix B Contract Quantity (MW): in for each month, as further described in Appendix B Delivery Period: , inclusive, as further
Unit Information: Described in Appendix B
Payment Terms: 20th Day of the month following the Delivery Period, as further described in Article 3
This Confirmation is subject to the Appendices identified below and attached hereto:
Appendix A – Defined Terms
Appendix B – Product and Unit Information
Appendix C – Notice Information
Appendix D – Planned Outage Schedule
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 s
Appendix A NRG - Sale
2 IN WITNESS WHEREOF, the Parties have signed this Confirmation effective as of the Effective Date.
NRG Business Marketing LLC
Sign:
Print: Jay Robertson
Title: Director, West Commercial Operations
Silicon Valley Clean Energy Authority
Sign:
Print:
Title:
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA CEO
Monica Padilla
DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
x DocuSigned by:
573FUW411UB4UU...
3 ARTICLE 1
TRANSACTION TERMS
Product, Delivery Period, Contract Quantity, Contract Price and other specifics of the Product are described on page 1 of this Confirmation and in Appendix B. Appendices A, B, C, and D are incorporated into this Confirmation.
☐ Firm RA Product:
Seller shall provide Buyer 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 Buyer 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 Buyer for penalties or fines pursuant to the terms of Section 2.5. ☒ Contingent Firm RA Product:
Seller shall provide Buyer 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 as a result of any reduction of the Contract Quantity of the Unit in accordance with Section 2.2, Seller shall have the option to notify 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 2.3. If the Unit is not available to provide the full amount of the Contract Quantity as a result of any reason other than as provided in Section 2.2, then Seller shall have the option to supply Alternate Capacity pursuant to Section 2.3 to fulfill the remainder of the Contract Quantity during such period. If Seller fails to provide Buyer with the Expected Contract Quantity from the Unit and has failed to supply Alternate Capacity to fulfill the remainder of the Expected Contract Quantity during such period, then Seller shall be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Section 2.5.
ARTICLE 2
DELIVERY OBLIGATIONS AND ADJUSTMENTS
2.1 Sale and Delivery of Product
(a) For each day of the Delivery Period, Seller shall sell and deliver to Buyer, and Buyer 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 each day of the Delivery Period is firm and will not be excused for any reason.
(b) Seller shall deliver the Expected Contract Quantity by submitting to CAISO in its Supply Plan the Shown Unit(s) and the characteristics of the Shown Unit(s) and DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
4 Product for Buyer, as further specified in Appendix B, all in compliance with this Confirmation.
(c) Seller shall cause all Supply Plans to meet and be filed in conformance with the requirements of the CPUC and the Tariff. Seller shall submit, or cause the Shown Unit’s SC to submit, on a timely basis with respect to each applicable day of the Delivery Period, Supply Plans in accordance with the Tariff and CPUC requirements to identify and confirm the Product delivered to Buyer for each day of the Delivery Period. The total amount of Product identified and confirmed for each day of the Delivery Period shall equal the Expected Contract Quantity. (d) Seller may sell and deliver Product from a Shown Unit that meets the requirements set forth in Appendix B. In no event shall a Shown Unit utilize coal or coal materials as a source of fuel or be a nuclear generating facility. A Shown Unit must be a specific resource that is connected directly to the CAISO controlled grid or be under the operational control of CAISO. A Shown Unit may not be an unspecified import. Seller shall identify the Shown Unit(s) and Expected Contract Quantity by providing Buyer with the specific information contemplated in Appendix B no later than the Notification Deadline for the Delivery Period. (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 day of the Delivery Period, 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 Delivery Period.
(f) The Product is delivered and received when the CIRA Tool shows that the Supply Plan submitted in compliance with Buyer’s instructions, including Buyer’s instructions to withhold all or part of the Expected Contract Quantity from Seller’s Supply Plan for any day of the Delivery Period during the Delivery Period, has been accepted for the Product from the Shown Unit(s) by CAISO. Seller has failed to deliver the Product if (i) Buyer has elected to submit the Product from the Shown Unit(s) 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 day of the Delivery Period in such amount as instructed by Buyer for the applicable day(s) of the Delivery Period. Seller shall not have failed to deliver the Expected Contract Quantity if Buyer 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 Buyer or Seller to file an advice letter or other request for authorization with the CPUC.
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
5 2.2 Adjustments to Contract Quantity
If Seller is providing Contingent Firm RA Product, Seller’s obligation to deliver the Contract Quantity for each day of the Delivery Period may be reduced at Seller’s option by the amount of any Planned Outages which exist with respect to any portion of the Unit during the applicable days of such Planned Outages; provided, (i) Seller notifies Buyer by the Notification Deadline applicable to that day of the Delivery Period of the amount of Product from the Unit that Buyer may include in Buyer’s Compliance Showings for each day of that month as a result of such Planned Outage, and (ii) such reduction is able to be reflected on the Supply Plans in accordance with the Tariff.
In the event Seller is unable to provide the Contract Quantity for any portion of a Delivery Period because of a Planned Outage of a Unit, Seller has the option, but not the obligation, to provide Product for such portions of such Delivery Period from Replacement Units, provided Seller provides and identifies such Replacement Units in 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 each day of each Delivery Period for any reason, including, without limitation, as provided in Section 2.2, or Seller desires to provide a portion of the Contract Quantity for any day of a Delivery Period from a different generating unit other than the Unit, then Seller may, at no cost to Buyer, provide Buyer with replacement Product from one or more Replacement Units in an amount such that the total amount of Product provided to Buyer from the Unit and any Replacement Unit(s) for each day of the Delivery Period is not more than the Contract Quantity, provided that in each case:
(a) Seller shall notify Buyer in writing of its intent to provide Alternate Capacity and shall identify the Replacement Unit(s) from which such Alternate Capacity shall be provided before the Notification Deadline for such Delivery Period; and (b) The designation of any Replacement Unit(s) by Seller shall be subject to Buyer’s prior written approval, which shall not be unreasonably withheld.
Once Seller has identified in writing any Replacement Units that meet the requirements of this Section 2.3, and Buyer has approved such Replacement Units as consistent with this Confirmation, then any such Replacement Units shall be deemed a Unit for purposes of this Confirmation for that Delivery Period. Buyer’s approval of a Replacement Unit as to a given Delivery Period shall not be construed as approval of such Replacement Unit for any subsequent Delivery Period.
2.4 Planned Outages
As of the Confirmation Effective Date, Seller and Buyer have agreed to all Planned Outages as specified in Appendix D (“Planned Outage Schedule”) for all relevant Delivery Periods for the following calendar year, or until the end of the Delivery Period, whichever is shorter. Seller may provide Buyer with proposed changes to the Planned Outage Schedule from time to time. Within ten (10) Business Days after Buyer’s receipt of any such Seller proposed changes, Buyer shall notify Seller in writing of reasonable requests for modifications to such Seller proposed changes, DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
6 and Seller shall, to the extent consistent with Prudent Operating Practice, accommodate Buyer’s requests regarding the timing of any Seller proposed changes to the Planned Outage Schedule.
2.5 Buyer’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 day of the Delivery Period, Seller shall be liable for damages pursuant to Section 4.1 of the Master Agreement.
(b) Seller shall indemnify, defend and hold harmless Buyer from any penalties, fines or costs, including Environmental Costs, assessed against Buyer 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 shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties, fines or costs. If Seller fails to pay the foregoing penalties, fines or costs, or fails to reimburse Buyer for those penalties, fines or costs, then, without prejudice to its other rights and remedies, Buyer may setoff and recoup those penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation or the Master Agreement.
2.6 Buyer’s Re-Sale of Product
(a) Buyer 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.
For any such a resale, the Resource Adequacy Plan of Buyer as used herein will refer to the Resource Adequacy Plan of Subsequent Buyer. Seller shall, or shall cause the Shown 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 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 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 Shown Unit’s SC to comply with this Confirmation, Seller shall be liable to Buyer for the same amounts Seller would have owed Buyer under this Confirmation if Buyer had not resold the Product.
(b) Buyer shall 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 each Delivery Period for which Buyer has resold Product. Buyer shall notify Seller of any subsequent changes or further resales no later than two (2) Business Days before the Notification Deadline for the Delivery Period.
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
7 (c) If CAISO or CPUC develops a centralized capacity market, Buyer shall have the exclusive right to direct the Seller or the Unit’s SC to offer, bid, or otherwise submit the Expected Contract Quantity for re-sale into such market, and Seller and the Unit’s SC shall comply with the Buyer’s direction and Buyer shall retain and receive all revenues from such re-sale.
(d) Buyer 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 Buyer’s direction and, to the extent that the CAISO designates the Expected Contract Quantity as CPM Capacity, Buyer shall be entitled to retain and receive the CPM Capacity Payment. Unless otherwise instructed by Buyer, (i) Seller shall not, and shall cause the Unit’s SC to not, offer any portion of the Expected Contract Quantity to CAISO as CPM Capacity and (ii) if CAISO designates any portion of the Contract Capacity as CPM Capacity, then Seller shall, and shall cause the Unit’s SC to, promptly (and in any event within one (1) Business Day of the time Seller receives notification from CAISO) notify Buyer 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 Buyer has agreed to accept such designation.
(e) Notwithstanding any provisions herein, Buyer shall not re-sell the Product outside the CAISO.
ARTICLE 3
PAYMENTS
3.1 Payment
After Seller has delivered the Expected Contract Quantity in accordance with Section 2.1 and issued its invoice, Buyer shall pay for the Product as provided in Article Six of the Master Agreement and this Confirmation. Buyer shall make a monthly payment to Seller for each Unit by the later of (i) ten (10) Calendar Days after Buyer’s receipt of Seller’s invoice or (ii) the twentieth (20th) day of the month after the Delivery Period; provided, however, if such day is not a Business Day then payment shall be made by the following Business Day (“RA Capacity Payment”). Each Unit’s RA Capacity Payment shall be equal to the product of (a) the applicable Contract Price for the relevant day of the Delivery Period, (b) the Expected Contract Quantity for the day of the Delivery Period, and (c) 1,000, rounded to the nearest penny (i.e., two decimal places); provided, however, that the RA Capacity Payment shall be adjusted to reflect any portion of Expected Contract Quantity for the Delivery Period that was not delivered in accordance with Section 2.1 for such Showing Month.
3.2 Allocation of Other Payments and Costs
(a) Seller shall 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. Buyer must DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
8 promptly report receipt of any such revenues to Seller. Buyer must pay to Seller any such amounts described in this Section 3.2(a) received by Buyer or a Subsequent Buyer. 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 Buyer under the Master Agreement. (b) Buyer is to receive and retain all revenues associated with the Expected Contract Quantity of Product during the Delivery Period, including any capacity and availability revenues from the Capacity Procurement Mechanism, or its successor, RUC Availability Payments, or its successor, but excluding payments described in Section 3.2(a)(i)-(v) or 3.2(d). Seller shall promptly report receipt of any such revenues to Buyer. Seller shall pay to Buyer 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, Buyer may set off and recoup any such amounts that are not paid to it against amounts owed to Seller under the Master Agreement.
(c) Any Availability Incentive Payments or Non-Availability Charges are for Seller to receive and pay.
ARTICLE 4
OTHER BUYER 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. Buyer is not liable for, and Seller shall indemnify and hold Buyer 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 Buyer’s Duties to Take Actions to Allow Product Utilization Throughout the Delivery Period, Buyer and Seller shall take all commercially reasonable actions and execute all documents or instruments reasonably necessary to ensure (a) Buyer’s rights to the Expected Contract Quantity for the sole benefit of Buyer or any Subsequent Buyer, and (b) that Buyer 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 and 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 RAR 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 DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
9 conform this Transaction to subsequent clarifications, revisions, or decisions rendered by CAISO or an applicable Governmental Body to maintain the benefits of the Transaction.
4.3 Seller’s Representations and Warranties
Seller represents and warrants to Buyer 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 the Shown Unit(s);
(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 Buyer; and
(e) Seller has notified or will notify the Shown Unit’s SC that Buyer 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 Buyer, along with appropriate documentation supporting the amount of those revenues.
4.4 Market Based Rate Authority
Upon Buyer’s written request, Seller shall, in accordance with 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 5
AMENDMENTS TO THE MASTER AGREEMENT; GENERAL PROVISIONS
5.1 Termination Payment
For this Transaction, the following is inserted at the end Section 5.2 of the Master Agreement:
“If Buyer is the Non-Defaulting Party and Buyer reasonably expects to incur or be liable for any penalties, fines or costs from CAISO, or any Governmental Body, because Buyer or a Subsequent Buyer is not able to include the applicable Expected Contract Quantity in a Compliance Showing due to Seller’s Event of Default, then Buyer may, in good faith, DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
10 estimate the amount of those penalties, fines or costs and include the estimate in its calculation of the Settlement Amount, subject to accounting to Seller when those penalties, fines or costs are finally ascertained. If this accounting establishes that Buyer’s estimate exceeds the actual amount of penalties, fines or costs, Buyer must promptly remit to Seller the excess amount with interest in accordance with Section 6.2 of the Master 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.”
5.2 Confidentiality
Notwithstanding anything in the Master Agreement:
(a) Buyer may disclose information as necessary in order to support its Compliance Showings or otherwise show it has met its Compliance Obligations; (b) Seller may disclose as necessary to a Shown Unit’s SC or as necessary for submitting Supply Plans;
(c) Each Party may disclose information as necessary to the independent evaluator or other administrator of any competitive solicitation process of Buyer, which in turn may disclose such information as necessary to CAISO or any Governmental Body; and
(d) Buyer may disclose information to any Subsequent Buyer.
5.3 Dodd-Frank Act
Each Party represents and warrants to the other that it is an “eligible contract participant” within the meaning of the United States Commodity Exchange Act §1a(18). Without limiting Section
10.10 of the Master Agreement, 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).
5.4 Change in Law
If any action by the CPUC, CAISO or any Governmental Body having jurisdiction results in any change in applicable law occurring after the Confirmation Effective Date that (i) materially changes Buyer’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 requirements for Resource Adequacy Requirements such that the Product can no longer be counted towards Buyer’s DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
11 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 Product sold hereunder in order to maintain the original intent of the Parties under this Confirmation. If the Change in Law results in the Product no longer being able to be counted towards Buyer’s Resource Adequacy Requirements, and the Parties have not reached agreement within thirty (30) days after the initiation of discussions regarding the Change in Law on amendments that would allow the Product to be able to be counted towards Buyer’s Resource Adequacy Requirements, Buyer may terminate this Confirmation upon written notice to Seller, which shall be effective the next Business Day after such notice is received, and any such termination shall be without liability to either Party, subject to payment of any amounts owing as of the effective date of such termination.
5.5 Governing Law
This Confirmation, including the provisions and requirements of the Tariff and the definition of the Product and its components, and any portion of the Master Agreement applicable to this Transaction shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws rules thereof.
5.6 Credit and Collateral
Except as provided in the Master Agreement, neither Party shall be required to post collateral or other security for this Transaction.
5.7 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. The Parties may rely on electronic, facsimile or scanned signatures as originals under this Confirmation. Delivery of an executed signature page of this Confirmation by facsimile or electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page.
5.8 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 to the contrary, this Transaction may be confirmed only through a written document executed by both Parties, and no amendment or modification to this Transaction shall be enforceable except through a written document executed by both Parties.
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix A - 1
APPENDIX A
DEFINED TERMS
“Alternate Capacity” means replacement Product which Seller has elected to provide to Buyer in accordance with the terms of Section 2.3.
“CAISO” means the California ISO or the successor organization to the functions thereof. “Capacity Attributes” means attributes of the Shown Unit that may be counted toward Compliance Obligations, including: flexibility, dispatchability, physical location or point of electrical interconnection of the Shown Unit; Unit ability to generate at a given capacity level, provide ancillary services, or ramp up or down at a given rate; any current or future defined characteristics, certificates, tags, credits, or accounting constructs of the Shown Unit, howsoever entitled, identified from time to time by the CAISO or a Governmental Body having jurisdiction over Compliance Obligations.
“CIRA Tool” means the CAISO Customer Interface for Resource Adequacy. “Compliance Obligations” means, as applicable, RAR, Local RAR and FCR. “Compliance Showings” means the applicable LSE’s compliance with the Resource Adequacy Requirements of the CPUC for an applicable Delivery Period. “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 the Resource Adequacy Requirements.
“Delivery Period” means the period specified in Appendix B during which Seller shall deliver the Product to Buyer.
“Effective Flexible Capacity” has the meaning given in the CAISO Tariff. “Environmental Costs” means (i) costs incurred in connection with acquiring and maintaining all environmental permits and licenses for the Product, (ii) the Product’s compliance with all applicable environmental laws, rules, and regulations, including capital costs for pollution mitigation or installation of emissions control equipment required to permit or license the Product, (iii) all operating and maintenance costs for operation of pollution mitigation or control equipment, (iv) costs of permit maintenance fees and emission fees as applicable, (v) the costs of all emission reductions that have been authorized by a local air pollution control district or emissions trading credits or units pursuant to the California Health & Safety Code, market based incentive programs such as the South Coast Air Quality Management District’s Regional Clean Air Incentives Market, authorizations to emit sulfur dioxide and oxides of nitrogen by the Environmental Protection Agency, and any costs related to greenhouse gas emissions required by any applicable environmental laws, rules, regulations, or permits to operate, and (vi) costs associated with the disposal, clean-up, decontamination or remediation, on or off site, of hazardous substances.
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix A - 2
“Expected Contract Quantity” means, with respect to any particular day 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 as Alternate Capacity with respect to such day, and (b) for Contingent Firm RA Product, the Contract Quantity of Product, including the amount of Contract Quantity of Product that Seller has elected to provide as Alternate Capacity with respect to such day, less any reductions to Contract Quantity for such day consistent with Section 2.2 with respect to which Seller has not elected to provide Alternate Capacity.
“Firm RA Product” has the meaning set forth in Article 1 herein. “Flexible Capacity” or “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. “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. “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. “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 the CAISO Tariff. “Notification Deadline” is five (5) Business Days before the relevant deadlines for the corresponding Compliance Showings applicable to the relevant Showing Month, or three (3) Business Days before the relevant deadlines for the corresponding Compliance Showings for the Delivery Period, if applicable.
“Planned Outage” means, subject to and as further described in the CPUC Decisions, a CAISO-approved, planned or scheduled disconnection, separation or reduction in capacity of the Unit that is conducted for the purposes of carrying out routine repair or maintenance of such Unit, or for the purposes of new construction work for such Unit. “Product” means RAR, Local RAR and/or FCR for the Delivery Period, Unit, Contract Quantity, Contract Price and other specifications described on page 1 of this Confirmation and contained in Appendix B.
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix A - 3
“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 Buyer 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 Buyer 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. “Replacement Unit” means a generating unit meeting the requirements specified in Section 2.3. “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. “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.
“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, but not necessarily identified by Seller to Buyer on the Effective Date.
“Subsequent Buyer” means the Buyer of Product from Buyer in a re-sale of Product by Buyer. “Tariff” means the CAISO Tariff, including any current CAISO-published “Operating Procedures” and “Business Practice Manuals,” in each case as amended or supplemented from time to time.
“Unit” means the generation unit described in Appendix B. A Unit may not be a nuclear or coal-fired generating facility. “Unit EFC” means the lesser of the Unit’s Effective Flexible Capacity as set by CAISO as of the Effective Date and that of the Unit on a subsequent date of determination. “Unit NQC” means the lesser of the Unit’s Net Qualifying Capacity as set by CAISO as of the Effective Date and that of the Unit on a subsequent date of determination.
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix B - 1
APPENDIX B
PRODUCT AND UNIT INFORMATION
Product:
RAR Local RAR Flexible Capacity
and all Capacity Attributes related to such Product.
Delivery Period: inclusive.
Contract Quantity and Contract Price:
Contract
Month/Year
RAR
Contract Quantity
(MWs)
RA Capacity
Price
($/kW-month)
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix B - 2
Unit Information
Name Kern River Cogen
Facility
Location Bakersfield, CA
CAISO Resource ID OMAR_2_UNIT 4
Product Type (Flexible or
Generic) Generic
SCID of Resource TBD
Resource Type Gas Cogen
Resource Category (1, 2, 3 or 4) 4
Point of Interconnection with the
CAISO Controlled Grid
(“Substation”)
NA
Flexible RAR Category (1, 2 or 3) NA
Path 26 (North, South or None) South 26
LAR Attributes (Yes or No) No
Local Capacity Area (if any, as of
Confirmation Effective Date) BCV
Deliverability restrictions, if any,
as described in most recent
CAISO deliverability
assessment
None
Run Hour Restrictions None
Flexible Capacity Category
(Base/Peak/Super-peak)(as of
the Confirmation Effective Date)
N/A
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix C - 1
APPENDIX C
NOTICE INFORMATION
Party A: NRG Business Marketing LLC Party B: Silicon Valley Clean Energy Authority
All notice information for Party A will be
as set forth on the Cover Sheet to the
Master Agreement unless otherwise set
forth below.
All notice information for Party B will be
as set forth on the Cover Sheet to the
Master Agreement unless otherwise set
forth below.
All Notices:
All Notices:
Invoices: Invoices:
Scheduling:
Scheduling:
Wire Transfer:
Wire Transfer:
Credit and Collections: Credit and Collections:
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Appendix C - 2
Defaults: With additional Notices of an Event of
Default or Potential Event of Default to:
DocuSign Envelope ID: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
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: E5717007-5EDA-4C45-96FC-7201E1967DEA DocuSign Envelope ID: 093730D9-2773-44D2-96EA-F2CF0517F7B8 Appendix A NRG - Sale
Import Capability Transfer
(PF Update 2024-03-08)
MASTER POWER PURCHASE AND SALE AGREEMENT
BILATERAL IMPORT CAPABILITY TRANSFER CONFIRMATION LETTER
BETWEEN
SILICON VALLEY CLEAN ENERGY AUTHORITY
AND
SOUTHERN CALIFORNIA EDISON COMPANY
This Confirmation Letter including all appendices hereto (“Confirmation”) confirms the Transaction between Silicon Valley Clean Energy Authority (SVCE) (“SVCE”) and Southern California Edison Company (“SCE”), each individually a “Party” and together the “Parties”, dated as of __________________ (the “Confirmation Effective Date”) in which Seller agrees to provide to Buyer the right to the Product, as such term is defined in this Confirmation, in the amounts described in this Confirmation. This Transaction is governed by the Edison Electric Institute (“EEI”) Master Power Purchase and Sale Agreement between the Parties, effective as of 2/7/2018, along with the Cover Sheet, any amendments and annexes thereto (the “Master Agreement”), and including, the EEI Collateral Annex to the Master Agreement along with the Paragraph 10 to the Collateral Annex between the Parties (such Paragraph 10 and the Collateral Annex are referred to collectively herein as the “Collateral Annex”) (the Master Agreement and the Collateral Annex shall be collectively referred to as the “EEI Agreement”). The EEI 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 EEI Agreement, or the CAISO Tariff (defined herein below). To the extent this Confirmation is inconsistent with any provision of the EEI Agreement, this Confirmation shall govern the rights and obligations of the Parties hereunder.
ARTICLE 1. TRANSACTION TERMS
The Product, Term, Delivery Period, Delivery Point, Contract Quantity and Contract Price are as specified in Appendix B of this Confirmation.
ARTICLE 2. DELIVERY OBLIGATIONS
2.1 Delivery of Product
Seller shall sell and deliver to Buyer, and Buyer shall receive and purchase from Seller, the Product at the Delivery Point in the amount of the applicable Contract Quantity for each month of the Delivery Period through a Bilateral Import Capability Transfer as specified in this Section 2.1.
Within (a) five (5) Business Days after the date that Seller receives the One-Time Payment from Buyer if Buyer is a Pre-Pay Buyer, or (b) five (5) Business Days after the Confirmation Effective Date if Buyer is not a Pre-Pay Buyer, Seller shall DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E 4/17/2024
DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
Confidential Import Capability Transfer Confirmation
SCE – SVCE
2 or shall cause Seller’s scheduling coordinator to register the transfer of the Product in the amount of the Contract Quantity at the Delivery Point in CAISO’s CIRA Tool (or successor platform) in addition to completing any other actions required by the CAISO to effect such transfer (the “Registration”).
As soon as reasonably practicable thereafter, but no later than three (3) Business Days after Registration, Buyer shall accept and confirm Seller’s Registration in CAISO’s CIRA Tool and will then communicate to Seller whether the transfer from Seller to Buyer of the Product in the amount of the Contract Quantity at the Delivery Point was successful or unsuccessful (a successful transfer, the “Transfer Completion Email”). If the transfer from Seller to Buyer of the Product in the amount of the Contract Quantity at the Delivery Point is unsuccessful, the Parties shall begin the registration process set forth in this Section 2.1 again, until the Parties receive a Transfer Completion Email.
2.2 Damages for Failure to Provide Product
If Seller fails to provide Buyer with all or any portion of the Contract Quantity of the Product at the Delivery Point in accordance with Section 2.1 for any portion of the Delivery Period (such undelivered amount, the “Replacement Capacity”), then the Seller shall pay Buyer, at the time set forth in Section 4.1 of the Master Agreement, the following damages in lieu of damages specified in Section 4.1 of the Master Agreement:
(a) An amount equal to the greater of: (i) the Replacement Capacity Price multiplied by the Replacement Capacity, including any transaction costs and expenses incurred in connection with such procurement; and (ii) the Contract Price multiplied by the Replacement Capacity. Buyer’s invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount and shall include supporting documentation; and
(b) Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CAISO directly or indirectly resulting from such Replacement Capacity.
2.3 Buyer’s Re-Sale of Product
Buyer may re-sell all or a portion of the Product acquired under this Confirmation.
ARTICLE 3. PAYMENT
3.1 One-Time Payment
In accordance with the terms of Article Six of the Master Agreement, and DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
Confidential Import Capability Transfer Confirmation
SCE – SVCE
3 (a) If Buyer is a Pre-Pay Buyer, Buyer shall make a One-Time Payment to Seller for the Product within ten (10) Business Days following the Confirmation Effective Date and before Seller transfers the Product in accordance with 2.1.
(b) If Buyer is not a Pre-Pay Buyer, then Buyer shall make a One-Time Payment to Seller for the Product within fifteen (15) Business Days after the later of: (a) receipt of the Transfer Completion Email; or (b) receipt of Seller’s invoice.
The One-Time Payment is calculated as follows:
One-Time Payment =
where:
A = Contract Price (in $/kW-month) for the applicable Contract Month
B = Contract Quantity (in MW) transferred by Seller for the applicable Contract Month
i = Each Contract Month of the Delivery Period
n = number Contract Months
The One-Time Payment calculation shall be rounded to two decimal places.
3.2 Offset Rights
Either Party may offset any amounts owing to it for revenues, penalties, fines, costs reimbursement, or other payments pursuant to Article Six of the Master Agreement against any future amounts it may owe to the other Party.
ARTICLE 4. CONFIDENTIALITY
Notwithstanding Section 10.11 of the Master Agreement, the Parties agree that:
(a) both Parties may disclose the terms and conditions of this Agreement and any and all written or recorded or oral information, data, analyses, documents, and materials furnished or made available by a Party to the other Party in connection with this Agreement to the Independent Evaluator;
DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
xBixl.OOQ
Confidential Import Capability Transfer Confirmation
SCE – SVCE
4 (b) both Parties and the Independent Evaluator may disclose the terms and conditions of this Agreement and any and all written or recorded or oral information, data, analyses, documents, and materials furnished or made available by a Party to the other Party in connection with this Agreement to the CAISO, the CPUC, and all divisions thereof, the CEC, any Governmental Authority, and participants of the procurement review group established pursuant to D.02-08-071 and D.03-06-071;
(c) both Parties may disclose the terms of this Confirmation to the CAISO to effectuate Seller’s performance and the transfer of the Product and the Parties acknowledge that the CAISO may publicly disclose the transfer of the Product from Seller to Buyer in accordance with the CAISO Tariff promptly following Seller’s performance; and
(d) 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 affect such resale transaction, other than the Contract Price;
provided, that each disclosing Party shall use reasonable efforts to limit, to the extent possible, the ability of any such applicable Governmental Authority or the CAISO to further disclose such information. In addition, in the event Buyer resells all or any portion of the Contract Quantity to another party, Buyer shall be permitted to disclose to the other party to such resale transaction all such information necessary to effect such resale transaction.
[Remainder of Page Intentionally Left Blank]
DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
Confidential Import Capability Transfer Confirmation
SCE – SVCE
5 In WITNESS WHEREOF, the Parties have caused this Confirmation to be duly executed as of the Confirmation Effective Date first written:
SILICON VALLEY CLEAN ENERGY
AUTHORITY
a California joint powers authority.
SOUTHERN CALIFORNIA EDISON
COMPANY,
a California corporation.
By: By:
Name: Name:
Title: Title:
Date: Date:
DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E Monica Padilla
4/3/2024
CEO
DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E Sr. Manager, Energy Trading
4/17/2024
Constantine Louie
DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
x DocuSigned by:
—-5?a-Fe-i^4-m9B4-e0-
DocuSigned by:
391864B60/084BF...
APPENDIX A
DEFINED TERMS
“Agreement” has the meaning specified in the introductory paragraph of this Confirmation. “Bilateral Import Capability Transfer” is the transfer of Import Capability Rights from one Market Participant (as defined in the CAISO Tariff) to another, as described in the CAISO Tariff. “Branch Group” means the branch group name used by the CAISO to represent the location of an Intertie with Import Capability Rights.
“Buyer” is as identified in Appendix B of this Confirmation. “CAISO” means the California Independent System Operator Corporation, or any successor entity performing the same functions.
“CAISO Tariff” means the California Independent System Operator Corporation Tariff, Business Practice Manuals (BPMs), Operating Agreements, and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time to time and approved by FERC, if applicable.
“CEC” means the California Energy Commission.
“Collateral Annex” has the meaning specified in the introductory paragraph of this Confirmation. “Confirmation” has the meaning specified in the introductory paragraph of this Confirmation. “Confirmation Effective Date” has the meaning specified in the introductory paragraph of this Confirmation.
“Contract Month” means the month during the Delivery Period as set forth in Appendix B under the column heading “Contract Month”.
“Contract Price” is the price set forth in Appendix B under the column heading “Contract Price”. “Contract Quantity” is the quantity of Product set forth in Appendix B under the column heading “Contract Quantity”.
“Cover Sheet” has the meaning specified in the introductory paragraph of this Confirmation. “CPUC” means the California Public Utilities Commission. “Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt or deposit obligations (not supported by third party credit enhancements) by S&P or Moody’s. If no rating is assigned to such entity’s unsecured, senior long-term debt or deposit obligations by any Ratings Agency, then “Credit Rating” means the general corporate credit rating or long-term issuer rating assigned to such entity by S&P or DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
Moody’s. If an entity is rated by more than one Ratings Agency and the ratings are at different levels, then “Credit Rating” means the lowest such rating. “Delivery Period” has the meaning specified in Appendix B. “Delivery Point” has the meaning specified in Appendix B. “EEI” has the meaning specified in the introductory paragraph of this Confirmation. “EEI Agreement” has the meaning specified in the introductory paragraph of this Confirmation. “Governmental Authority” means any: (a) federal, state, local, municipal or other government; (b) 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 (c) court or governmental tribunal.
“Import Capability Rights” means the import capability assigned to Load Serving Entities (and, in limited circumstances to Participating Generators or System Resources) by CAISO during any step in CAISO’s Import Capability Assignment Process as specified in CAISO Tariff Section
40.4.6.2.1. “Independent Evaluator” has the meaning set forth in CPUC Decision 04-12-048. “Intertie” has the meaning set forth in the CAISO Tariff. “Investment Grade Rating” means a Credit Rating of “BBB- or above” by S&P and “Baa3 or above” by Moody’s if rated by both S&P and Moody’s or “BBB- or above” by S&P or “Baa3 or above” by Moody’s if rated by S&P or Moody’s but not both. “Master Agreement” has the meaning specified in the introductory paragraph of this Confirmation. “Moody’s” means Moody’s Investor Services, Inc.
“MW” means megawatt (or 1,000 kilowatts) of alternating current electric energy generating capacity.
“One-Time Payment” has the meaning specified in Section 3.1. “Pre-Pay Buyer” means a Buyer who fails to maintain an Investment Grade Rating or has no Credit Rating, or whose guarantor fails to maintain an Investment Grade Rating or has no Credit Rating. “Product” has the meaning specified in Appendix B.
“Ratings Agency” means any of S&P and Moody’s (collectively the “Ratings Agencies”). “Registration” has the meaning specified in Section 2.1.
DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
“Replacement Capacity” has the meaning specified in Section 2.2. “Replacement Capacity Price” means the market price for Product reasonably equivalent to the Product not provided by Seller under this Confirmation, as determined in the manner upon which market prices are determined under Section 5.2(b) of the Master Agreement. For purposes of this Transaction and Confirmation, the “Replacement Capacity Price” shall be deemed to be the “Replacement Price” as defined in Section 1.51 of the Master Agreement. “Seller” is as identified in Appendix B of this Confirmation. “S&P” means Standard & Poor’s Financial Services LLC.
“Term” has the meaning specified in Appendix B.
“Transfer Completion Email” has the meaning specified in Section 2.1.
DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE
APPENDIX B
TERM, PRODUCT, DELIVERY PERIOD, CONTRACT QUANTITY,
AND CONTRACT PRICE
Seller Silicon Valley Clean Energy Authority
Buyer Southern California Edison Company
Term The Term of this Transaction shall commence upon the Confirmation Effective Date and shall continue until delivery by Seller to Buyer of the Contract Quantity of Product has been completed and all other obligations of the Parties under this Agreement have been satisfied.
Product Import Capability Rights
Delivery Point CAISO Branch Group corresponding to the CAISO Intertie, MALIN500_ISL
Delivery Period July 1, 2024 through September 30, 2024, inclusive, unless terminated earlier in accordance with the terms of this Agreement.
Contract Month Year
Contract
Quantity (MW)
Contract Price
($/kW-month)
January
February
March
April
May
June
July 2024
August 2024
September 2024
October
November
December
DocuSign Envelope ID: F584AB87-629E-4A29-A513-3C1D6F8EAA3E DocuSign Envelope ID: A9BEE2D1-7151-4A48-B5B8-3C406E68132E DocuSign Envelope ID: 68AD25AC-5BD9-4FD6-8F3C-CDE7B0C83EE2 Appendix A SCE