1 MEMORANDUM OF UNDERSTANDING (MOU)
This Memorandum of Understanding ("MOU"), made as of the last date signed below (the “Effective Date”), by and between The City of Manhattan Beach (“Member Agency”), the owner or long-term lessee as described in Section 4.a. of the real property described in Exhibit A and referred to herein as the “Site,” and Clean Power Alliance of Southern California, a Joint Powers Authority and Community Choice Aggregation program (“CPA”), referred to individually or collectively as “Party” or “Parties,” is to enroll the Site in the CPA Power Ready Program, described in more detail below.
RECITALS
WHEREAS, CPA desires to support community energy reliability efforts in its service territory through its Power Ready Program (described in the Power Ready Fact Sheet, attached hereto as Exhibit B), which seeks to provide Member Agency with a no-cost energy resiliency project that provides significant community benefit and demand response to CPA, and
WHEREAS, the Member Agency has worked diligently with CPA to determine a suitable site for energy resilience as part of the Power Ready Program, and
WHEREAS, the Member Agency is the owner of the Site identified in Exhibit A, which Member Agency and CPA have identified as a suitable site for the Power Ready Program because the Site serves a critical community function by remaining open as a community shelter in the event of a grid outage, and
WHEREAS, to implement the Power Ready Program, CPA must enter into an agreement with a third-party developer (“Developer”), who will develop behind-the-meter battery energy storage and solar photovoltaic generation energy systems at the sites selected for the Power Ready Program, including the Member Agency Site, and
WHEREAS, CPA intends to issue and administer a competitive Request for Offers (“RFO”) to select the Developer, and
WHEREAS, CPA intends to include in the RFO a portfolio of development sites, including the Member Agency Site and sites belonging to other CPA member agencies, which portfolio will be relied upon by developers to submit bids to develop solar and storage on the Power Ready Program sites, and
WHEREAS, developers’ bids will include pricing that will be incumbent on the inclusion of the Member Agency Site in the portfolio, and
WHEREAS, the Member Agency will benefit from the installation of the battery energy storage system, which will provide the Site with power during planned and unplanned electrical outages to power certain critical electrical loads,
2 NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, it is mutually understood and agreed by and between the Parties as follows:
1. Term. This MOU begins on the Effective Date and ends five (5) years after the Effective Date, at which point, CPA and Member Agency may agree, by mutual written agreement, to extend the term of this MOU.
2. Termination.
a. Convenience. Any time prior to CPA’s issuance of the RFO, either Party may terminate this MOU for convenience and without liability to the other Party upon giving ninety (90) days prior written notice.
b. Default.
i. After CPA issues the RFO, the Parties acknowledge and agree that either Party’s failure to perform any of its material obligations under this MOU shall constitute an event of default and entitle the other Party to terminate the MOU immediately upon written notice of termination. ii. Member Agency Default. Member Agency recognizes that its default under this MOU could undermine CPA’s implementation of the Power Ready Program for other participating member agencies, invalidate Developer bids to develop Solar+Storage Systems under the Power Ready Program, increase costs of construction and reduce benefits to CPA and other member agencies, or a combination thereof. Member Agency acknowledges and agrees to reimburse CPA for all reasonable costs related to, resulting from, or arising from Member Agency’s default including but not limited to any qualified adjustment in the rate price, reasonable fees, or other direct charges that may be assessed by the Developer pursuant to the Power Purchase Agreement, and to be subject to any other remedies that may be available to CPA.
iii. CPA Default. If CPA defaults, CPA acknowledges and agrees to reimburse Member Agency for Member Agency’s reasonably expended costs to prepare the Site for the Solar+Storage System in reliance on the MOU.
CPA shall not be liable for any other expenses incurred in reliance on the MOU, any Member Agency personnel time spent in reliance on the MOU, costs to pursue other renewable energy options, or any special or incidental damages.
iv. Force Majeur. Neither Party shall be liable for any default caused by reason of acts of God including volcanic eruption, landslide, lightning, earthquake, fire, or flood (but excepting reasonably anticipated weather conditions at the Site); explosion, sabotage, or similar occurrence; acts of a public enemy, extortion, terrorism, war, blockage, or insurrection; riot 3 or civil disturbance; strikes, lockouts, or labor troubles; change in law or regulation; or other cause without fault and beyond the reasonable control of a Party (financial inability excepted).
3. The Solar+Storage System and Its Operation.
a. Construction.
i. CPA will select a Developer to construct, install, operate, and maintain at the Site a behind-the-meter battery energy storage and solar photovoltaic generation energy system at Developer’s sole cost and expense, with the anticipated general specifications set forth in Exhibit A hereto (the “Solar+Storage System” or “System”).
ii. In the RFO, CPA will make clear that Developer is required to comply with all provisions of California law applicable to public contracting, including but not limited to bond requirements and prevailing wage requirements. iii. CPA will require the Developer to submit a siting and construction plan for the Solar+Storage System for Member Agency’s approval, which shall include a commitment to obtain all necessary permits, a waste management plan, and a statement that Developer will adhere to the applicable building code and all local, state, and federal laws. iv. The Parties recognize that the Developer must secure interconnection approval for the Solar+Storage System from Southern California Edison. b. Financing. The Parties anticipate that construction, operation, and maintenance of the Solar+Storage System will be financed by a Power Purchase Agreement (“PPA”) between CPA and the Developer.
c. Ownership. The Parties acknowledge that the Developer will own the Solar+Storage System.
d. Maintenance. The Parties acknowledge that the Developer will be responsible for the maintenance of the Solar+Storage System, and Member Agency will provide reasonable access to Developer.
e. Control. The Solar+Storage System will be managed and operated pursuant to the terms of the PPA, as set forth in more detail below. f. Normal Operations. Except when in Power Outage Operations pursuant to Section 3.g, below, the Solar+Storage System will be managed to meet CPA’s needs for demand-side management at its discretion, and such Solar+Storage System management will not impact Member Agency operations. g. Power Outage Operations.
i. The Solar+Storage System will have the ability to generate solar energy and charge the Solar+Storage System during power outages that occur during daylight hours.
ii. The Solar+Storage System will be managed to provide power, to the extent reasonably practicable, for certain critical loads at the Site during 4 power outages. The Solar+Storage System will be managed to provide sufficient power to the Site for at least four (4) hours during Power Outage Operations based on the Site’s power needs identified at the time the Solar+Storage System is designed.
4. Member Agency Obligations.
a. Ownership. Member Agency warrants that it is the long-term lessee (with a lease term that does not end earlier than, or that Member Agency has the sole discretion to continue until at least, 2045) or owner of the Site and that it has the power to grant permission for use of the Site as part of the Power Ready Program.
b. Project Development.
i. Member Agency agrees to allow CPA’s selected Developer to construct the Solar+Storage System at the Site, subject to Developer entering a Site Lease Agreement with Member Agency and subject to Developer receiving all necessary permits and approvals.
ii. Member Agency recognizes that its Site will be included in a portfolio in support of an RFO to potential developers and that withdrawal of its Site from the Power Ready Program could invalidate developers’ bids for the entire program.
c. Site Function. Member Agency agrees that the Site will continue to serve a critical community function, as described in the Recitals above, for the Term of the MOU. If Site no longer serves a critical community function, or Member Agency wishes to change the Site to a different critical community function than the one described herein, and that different critical community function significantly alters electricity usage at the Site, this may constitute a material change to this obligation. Member Agency must immediately notify CPA of the change and make best efforts to cooperate with CPA in remedying impacts related to the change in use.
d. Site Lease. Member Agency agrees to enter into a Solar+Storage Site Lease Agreement with the Developer, provided all material terms are agreed upon, or if the Member Agency does not own the Site, then Member Agency will use best efforts to secure a Solar+Storage Site Lease Agreement or any other agreements necessary to secure use of the Site between the Site owner and the Developer with Member Agency being a third-party beneficiary with a term length up to twenty (20) years. Member Agency shall act at all times in good faith to come to reasonable terms with the Developer and shall not unreasonably condition, delay, or refuse to enter into the Solar+Storage Site Lease Agreement.
Reasonable terms shall include, at a minimum, (a) a reasonable provision providing for indemnification of the Member Agency by the Developer, (b) a requirement the Developer carry reasonable insurance, and (c) a reasonable 5 requirement that the Developer return the Site to its condition prior to the installation of the Solar+Storage System if, at the end of the Site Lease term, Member Agency requests that the Solar+Storage System be removed. Member Agency recognizes that it may not require Developer to pay to lease the Site; the consideration for lease of the Site is installation of and Member Agency’s benefit from the Solar+Storage System.
e. Cooperation. Member Agency agrees to cooperate with Developer to secure necessary approvals for Developer to develop the Solar+Storage System at the Site; however, nothing in this MOU constitutes approval of development of the Solar+Storage System. Member Agency is solely responsible for issuance of any permits, including but not limited to providing necessary information for the selected Developer to acquire permits or to comply with the California Environmental Quality Act, if applicable.
f. Billing. Member Agency will pay CPA as billed for electric service at the Site under CPA’s future Power Ready Rate Structure, which will be developed prior to Member Agency execution of the Site Lease. The future Power Ready Rate Structure is further described in Section 5.c. of this MOU. The Power Ready Rate charged to Member Agency annually will be equal to or less than the amount charged to Member Agency annually under the rate structure that would have otherwise been in place if the Member Agency did not participate in the Power Ready Program.
g. SGIP Funds. Developer will apply for the CPUC Self Generation Incentive Program (“SGIP”) administered by Southern California Edison (“SCE”) on behalf of the Member Agency. Member Agency agrees to transfer any awarded SGIP funds to Developer to support financing of the battery energy storage.
5. CPA Obligations.
a. CPA will make a commercially reasonable effort to ensure construction of the Solar+Storage System begins no later than June 30, 2023, and will coordinate with Member Agency to determine a mutually agreeable construction schedule.
However, CPA does not guarantee either (a) that the Solar+Storage System will actually be constructed, or (b) that construction will be free from delays beyond CPA’s control.
b. CPA will provide a construction liaison during construction of the Solar+Storage System that will make periodic on-site visits.
c. CPA will bill the Member Agency for generation service on a monthly basis under its Power Ready Rate Structure. The on-bill monthly charge will be calculated to approximate projected monthly bill savings generated by the Solar+Storage System. CPA will conduct a true-up of the Member Agency annual electricity costs annually during the April bill cycle and will credit or charge the Member Agency. Member Agency’s annual charges will be equal to or less than the 6 amount that would have otherwise been charged to the Member Agency if the Member Agency did not participate in the Power Ready Program. d. CPA will provide Member Agency with educational/outreach materials and regular reporting on Solar+Storage System performance.
6. Indemnification. Each Party shall indemnify and hold harmless to the fullest extent permitted by law the other Party and its elected officials, officers, employees, members, volunteers, agents, and representatives from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements that may directly or indirectly arise and/or result from the indemnifying Party’s gross negligence or willful misconduct. This indemnification shall be only in proportion to and to the extent that such claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including attorneys’ fees and costs incurred in the defense of any such claim or any action or proceeding brought thereon arise from the negligent or intentional acts or omissions of indemnifying Party, and its officers, employees, invitees, or agents.
7. Insurance.
a. The Parties agree to provide and maintain throughout the term of this MOU, at their own expense, a program of insurance, or self-insurance, covering the activities and operations of their respective officers, agents and employees and contractors for the term of this MOU. This insurance shall include general liability insurance with coverage limits of $2,000,000 per occurrence and $2,000,000 aggregate (unless the aggregate is on a per-policy basis, in which case the aggregate shall be a minimum of $4,000,000). This insurance shall be endorsed to include the following: (i) CPA, its Board, Officers, Officials, Employees, Agents, Servants, and Volunteers are covered as additional insureds on Member Agency’s commercial general liability policy, and Member Agency’s Board, Officers, Officials, Employees, Agents, Servants, and Volunteers are covered as additional insureds on CPA’s commercial general liability policy; and (ii) a written notice to be mailed to the other Party 30 days prior to the effective date of a cancellation or non-renewal of such insurance.
b. The Parties agree to maintain throughout the term of this MOU, at their own expense, an automobile liability policy covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per occurrence for bodily injury and property damage.
c. The Parties agree to maintain throughout the term of this MOU, at their own expense, a workers’ compensation policy as required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. 7 d. Upon request, either Party shall provide the other evidence of such coverage naming the other Party as an additional insured including an additional insured endorsement issued by the insurance company or program of self- insurance.
e. CPA may waive or change any of the requirements in this Section 7 at its discretion, upon mutual agreement with the Member Agency. f. Nothing herein waives or reduces a Party’s indemnification obligations pursuant to Section 6.
8. Publicity. Any publicity generated by either Party related to the performance of this MOU should reference both Parties’ contributions. Each Party shall make best efforts to display the words “Clean Power Alliance” and “The City of Manhattan Beach” in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews, and newspaper articles (to the extent possible). Any piece of publicity, including those mentioned above, must be reviewed and approved by both Parties before issuing a press release. Each Party agrees to provide the other Party with reasonable time for review before such issuance.
Where CPA and Member Agency logos are used on any signage or documentation arising from this partnership, the logos of each Party will be of equal size. No signs may be posted, exhibited, or displayed on or about Member Agency property, except signage required by law or contemplated under this MOU, without prior written approval from Member Agency.
9. General Provisions.
a. Entire Agreement. This MOU represents the full and complete understanding between the Parties as to the subject matter of this MOU, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties related to the subject matter of the MOU.
b. Amendment. Any amendment to or modification of this MOU will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this MOU. c. Governing Law and Venue. This MOU is governed by the laws of the State of California. Any lawsuits files related to this MOU must be filed with the Superior Court for the County of Los Angeles, State of California. d. Third Party Beneficiaries. There are no intended third-party beneficiaries of this MOU.
e. Independent Parties. Each Party shall perform its responsibilities and activities described herein separately and not as an officer, agent, employee, or volunteer of the other Party hereto. Each Party shall be solely responsible for the acts and 8 omissions of its officers, agents, and employees. Nothing herein shall be considered as creating a partnership or joint venture between the parties. f. Headings. The headings in this MOU are for convenience only, are not a part of the MOU, and in no way affect, limit, or amplify the terms or provisions of this MOU.
g. Severability / Partial Invalidity. If any term or provision of this MOU, or its application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this MOU or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this MOU to carry out its intent. h. Survival. All provisions which by their nature must continue after the MOU expires or is terminated shall survive the MOU and remain in full force and effect, including but not limited to the indemnification requirement in Section 6 and the insurance requirements in Section 7.
i. Notices. All notices, requests, and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery; or the date confirmed by the reputable overnight delivery service; or on the fifth calendar day after deposit in the United States Mail, postage prepaid; or the next business day following submission by electronic mail:
To CPA:
Name/Title: Theodore Bardacke, Chief Executive Officer
Address: 801 S. Grand Ave., Suite 400, Los Angeles, CA 90017 Telephone: (213) 269-5890
Email: [email protected]
With a copy, which shall not serve as notice as required or specified herein, to:
Name/Title: Nancy Whang, General Counsel
Address: 801 S. Grand Ave., Suite 400, Los Angeles, CA 90017 Telephone: (213) 595-7818
Email: [email protected]
To Member Agency:
Name/Title: Erick Lee, Public Works Director
Address: 3621 Bell Avenue Manhattan Beach, CA 90266
Telephone: (310) 802-5302
Email: [email protected]
9 j. Electronic Signatures: This MOU may be executed by electronic signature(s) and transmitted either by facsimile or in a portable document format (“pdf”) version by email and such electronic signature(s) shall be deemed as original for purposes of this MOU and shall have the same force and effect as a manually executed original.
k. Execution in Counterparts: This MOU may be executed in two or more counterpart copies, each of which shall be deemed as an original and all of which, when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this MOU on the latest date of execution set forth below.
Clean Power Alliance of Southern California
_____________________________
Theodore Bardacke
Chief Executive Officer
The City of Manhattan Beach
_____________________________
Bruce Moe
City Manager
10 EXHIBIT A
Clean Power Alliance Power Ready Program
Last edited on August 25, 2021
Manhattan Beach Site Assessment Overview:
Joslyn Community Center
Address: 1601 N Valley Drive, Manhattan Beach, CA 90266 Meter Number: 259000-041329
Solar Size 133 kW
BESS Size 133 kW / 533 kWh
Facility Age Unknown
Facility Size ≈15,000 ft2
Critical Loads Lighting and Plug Loads, Auditorium, Servers/IT The Joslyn Community Center is centrally located in the community, next to Live Oak Park. The facility hosts frequent programming and is especially popular among seniors. The facility has no generator on site, but does have an ATS for a portable generator (though no personnel recall any occasion when a portable generator was used). The city hopes the Power Ready program will allow the facility to remain open during an outage as a gathering place and shelter for community members left without power. It is hoped that the Power Ready program will obviate the need for a portable generator to be brought in. Still, if possible, they would like to preserve the capability for a portable generator to be hooked up in the event that a prolonged outage exhausts the battery.
Intended Resilience
In the event of a grid outage, the Power Ready goal is to enable the facility to remain open as a community shelter with partial lighting and plug loads, as well as continued internet access. The largest room in the facility is an auditorium/ multi-purpose room, which would be the logical place to set up tables and/or cots, in the event of a prolonged outage.
11 Solar System Size and Location
The Helioscope design calls for approximately 133 kW of solar PV carports in the parking lot to the north of the city hall. A 133 kW solar array is projected to generate approximately 214,800 kWh / year, which accounts for approximately 55% of the facility’s annual use of 393,505 kWh (2019 interval data).
Preliminary designs also sited solar on the roof of this facility. The roof dates from 1999 (22 years old). Facility personnel indicated it was recently inspected and reported to be in good shape; they have no imminent re-roofing plans. Still, there are concerns about putting a twenty-plus-year asset on a twenty-plus-year-old roof. The roof is also more crowded with HVAC and other equipment than initial satellite views suggested.
BESS Size and Location
Our initial optimization suggests an ideal battery size of approximately 133kW / 533 kWh.
The facility has an annual peak kW demand of 142k W; through SGIP, a battery with 4-hour discharge may be sized up to 142kW / 568kWh. The facility is not located in a DAC or HFTD, and thus qualifies for the baseline SGIP incentive (currently $350/kWh).
The Power Ready program design stipulates that approximately 25% of BESS capacity be maintained as a “Reserve Capacity” that is always ready for an unplanned outage. The remaining 75% of BESS capacity may be used for daily energy management services, notably energy arbitrage and peak demand clipping.
12 The ideal BESS location is on the west side of the facility. There is a sizable, empty concrete strip here. The design above reflects a range of possible locations, and not the footprint of the battery, which would be much smaller. Directly north of the facility is another municipally- owned building which the city has plans to tear down and rebuild as the new Scout House; thus the north side, directly beside the electrical closet and main meter, is not a viable battery location. BESS installation on the west side would need to coordinate with these evolving renovation plans on the north side to ensure smooth logistical operations for these respective construction projects.
Photographs and videos of the location can be found on the Fulcrum app.
Electrical Infrastructure
The Main Switchboard (600 amp, 277/408V) is located on the north side of the building, in an electrical closet access external to the building. The closet also contains the main distribution panel (DP), the step-down transformer, and the ATS for the portable generator. There is very little extra space inside this electrical closet.
The single line indicates 5 distribution panels located throughout the building interior. We were not able to determine with city staff at this time which of the circuits on these panels were most essential for backup. But the city is interested in backing up as many plug loads and lighting loads as feasible, especially in the auditorium. HVAC loads are not a priority.
Hard-Wiring for Resiliency
Solar and Battery sources will connect to the Main Switchboard (in the electrical room accessible from the northern parking lot) via an automatic transfer switch (ATS), and will provide energy in the event of a grid outage.
13 Additional information regarding critical loads and electrical and building plans are available in the Fulcrum App and Shared Drive.
14 EXHIBIT B
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