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AMENDMENT NO. 1 TO
ORGP LLP GEOTHERMAL PORTFOLIO
PROJECT PARTICIPATION SHARE AGREEMENT
among
CENTRAL COAST COMMUNITY ENERGY
and
CITY AND COUNTY OF SAN FRANCISCO, ACTING BY AND THROUGH ITS PUBLIC
UTILITIES COMMISSION CLEANPOWERSF
and
PENINSULA CLEAN ENERGY AUTHORITY
and
REDWOOD COAST ENERGY AUTHORITY
and
CITY OF SAN JOSÉ, ADMINISTRATOR OF SAN JOSÉ CLEAN ENERGY
and
SILICON VALLEY CLEAN ENERGY AUTHORITY
and
SONOMA CLEAN POWER AUTHORITY
and
VALLEY CLEAN ENERGY
and
CALIFORNIA COMMUNITY POWER
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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AMENDMENT NO. 1 TO
ORGP LLP GEOTHERMAL PORTFOLIO
PROJECT PARTICIPATION SHARE AGREEMENT
This AMENDMENT NO. 1 to ORGP LLP GEOTHERMAL PORTFOLIO PROJECT PARTICIPATION SHARE AGREEMENT (“Amendment”), dated as of _________, (the “Amendment Effective Date”) is entered into by and among Central Coast Clean Energy, a California joint powers authority, the City and County of San Francisco acting by and through its Public Utilities Commission, CleanPowerSF, Peninsula Clean Energy Authority, a California joint powers authority, Redwood Coast Energy Authority, a California joint powers authority, City of San José, a California municipality, Silicon Valley Clean Energy Authority, a California joint powers authority, Sonoma Clean Power Authority, a California joint powers authority, and Valley Clean Energy, a California joint powers authority. This Amendment is being provided pursuant to and in accordance with the terms and provisions of the Project Participation Share Agreement dated September 22, 2022 (the “PPSA”) This Amendment, and the PPSA (as defined below), including any appendices, exhibits or amendments thereto, shall collectively be referred to as the “Agreement.”
RECITALS
WHEREAS, CCP and the Project Participants entered into the ORGP LLP Geothermal Portfolio Project Participation Share with an Effective Date of September 22, 2022 (the “PPSA”); and WHEREAS, CCP and the Project Participants desire to modify certain terms of the PPSA.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, CCP and the Project Participants mutually agree to the following:
1. R
ecitals. The Recitals stated above are true and correct and are incorporated by this reference into this Amendment No. 1.
2. Capitalized Terms. A ll capitalized terms used herein, which are not defined herein, shall have the meanings ascribed thereto in the PPSA, as amended hereby.
3. Amendments to the PPSA.
a. Article 1 Definition of “Amended Annual Budget” is hereby deleted and replaced with the following language: “Amended Annual Budget ” means the budget recommended by the CCP Manager and adopted by the CCP Board pursuant to Section 5.1(c) of this Agreement.
b. A rticle 1 Definition of “Annual Budget” is hereby deleted and replaced with the following language: “Annual Budget” means the budget recommended by the CCP Manager and adopted by the CCP Board pursuant to Section 5.1(c) of this Agreement.
c. A
rticle 1 Definition of “CCP Manager” is hereby deleted and replaced with the following language: “CCP Manager” means the General Manager of California Community Power or any person who is designated by the CCP Board to act in the capacity of the General Manager.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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d. Article 1 Definition of “Project Committee” is hereby deleted. e. A rticle 1 Definition of “Project Rights” is hereby deleted and replaced with the following language: “Project Rights” means all rights and privileges of a Project Participant under this Agreement, including but not limited to its Entitlement Share, and its right to receive the Product from the Facility.
f. A rticle 5 is hereby deleted and replaced with the language contained in Exhibit A of this Amendment.
g. Article 6 is hereby deleted and replaced with the language contained in Exhibit B of this Amendment.
h. Article 8 is hereby deleted and replaced with the language contained in Exhibit C of this Amendment.
i. Exhibit C Section (a)(i)(A) “Establish Entitlement Share Reduction Compensation Amount” is hereby amended by deleting “call a meeting of the Project Committee and.” j. Exhibit C Section (a)(i)(A) “Establish Entitlement Sha re Reduction Compensation Amount” is hereby amended by deleting all reference to the “Project Committee” and replacing it with “Project Participants.”
k. Exhibit C Section (a)(i)(B)(d) is hereby amended by deleting “approved by the Project Committee through a Normal Vote” and replacing it with “approved by the CCP Manager.”
l. Exhibit C Section (a)(i)(B)(e) is hereby amended by deleting “and upon approval of such transfer by the Project Committee,.”
m. Exhibit D of the PPSA is here by deleted.
4. N
o Other Changes . Exc ept as provided in this Amendment, the PPSA is not modified and continues in full force and effect. From and after the date hereof, references to the PPSA will be understood to mean the PSSA as amended by this Amendment.
5. Counterparts. T
his Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original.
[Si
gnatures appear on following page.]
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
California Community Power
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
Central Coast Community Energy
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
Clean Power San Francisco
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Peninsula Clean Energy
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
Redwood Coast Energy Authority
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
San José Clean Energy
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
Silicon Valley Clean Energy
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Sonoma Clean Power
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
Valley Clean Energy
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A 1
EXHIBIT A
ARTICLE 5
OBLIGATIONS OF CCP AND ROLE OF BOARD
5.1. Obligations of CCP.
(a) CCP shall take such commercially reasonable actions or implement such commercially reasonable measures as may be necessa ry or desirable for the utilization, maintenance, or preservation of the rights and interests of the Project Participants in the Project including, if appropriate, such enforcement actions or other measures as CCP or the CCP Board deems to be in the Project Participants’ best interests. To the extent not inconsistent with the PPA or other applicable agreements, CCP may also be authorized by the Project Participants to assume responsibilities for planning, designing, financing, developing, acquiring, insuring, contracting for, administering, operating, and maintaining the Project to effectuate the conveyance of the Product to Project Participants in accordance with Project Participants’ Entitlement Shares. (b) To the extent such services are available and can be carried forth in accordance with the PPA, CCP shall also provide such other services, as may be deemed necessary by CCP or the CCP Board to secure the benefits and/or satisfy the obligations associated with the PPA.
(c) A doption of Annual Budget . The Annual Budget and any amendments to the Annual Budget shall be prepared and approved in accordance with this Section 5.1(c). (i) T he CCP Manager will prepare a proposed Annual Budget at least ninety (90) days prior to the beginning of each Contract Year during the term of this Agreement.
The proposed Annual Budget shall be based on the prior Contract Year’s actual costs and shall include reasonable estimates of the costs CCP expects to incur during the applicable Contract Year in association with the administration of the PPA, including the cost of insurance coverages that are determined to be attributable to the Project by action of the CCP Board. The CCP Manager shall present the proposed Annual Budget to the CCP Board. The CCP Board shall adopt the Annual Budget no later than thirty (30) days prior to the beginning of such Contract Year and shall cause copies of such adopted Annual Budget to be delivered to each Project Participant. (A) For operating costs not otherwise collected through Articles 8 and 9 incurred prior to the Commercial Operation Date and which are approved by the CCP Board, including costs related to monitoring the development of the Project and other costs that are determined to be attributable to the Project by action of the CCP Board, shall be invoiced to each Project Participant based on their Project Entitlement Share. (ii) At any time after the adoption of the Annual Budget for a Contra ct Year, the CCP Manager may prepare a proposed Amended Annual Budget for and applicable to the remainder of such Contract Year. The proposal shall (A) explain why an amendment to the Annual Budget is needed, (B) compare estimated costs against actual cost s, and (C) describe the events that triggered the need for additional funding. The CCP Manager shall present the proposed Amended Annual Budget to the CCP Board. Upon adoption of the Amended Annual Budget by the CCP Board, such Amended Annual Budget shall apply to the remainder of the Contract Year DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A 2
and the CCP Board shall cause copies of such adopted Amended Annual Budget to be delivered to each Project Participant.
(iii) R eports . CCP will prepare and issue to Project Participants the following reports each quarter of a year during the Term:
(A) F inancial and operating statement relating to the Project. (B) Variance report comparing the costs in the Annual Budget versus actual costs, and the status of other cost -related issues with respect to the Project. If CCP incurred any costs to provide services that were deemed necessary pursuant to Section 5.1(b), the variance report shall identify the costs and describe the services provided. (d) R ecords and Accounts. CCP will keep, or cause to be kept, accurate records and accounts of the Project as well as of the operations relating to the Project, all in a manner similar to accepted accounting methodologies associated with similar projects. All transactions of CCP relating to the Project with respect to each Contract Year shall be subject to an annual audit.
Each Project Participant shall have the right at its own expense to examine and copy the records and accounts referred to above on reasonable notice during regular business hours. (e) Information Sharing. U
pon CCP’s request, each Project Participant agrees
to coordinate with CCP to provide such information, documentation, and certifications that are reasonably nec essary for the design, financing, refinancing, development, operation, administration, maintenance, and ongoing activities of the Project, including information required to respond to requests for such information from any federal, state, or local regulatory body or other authority.
(f) [ Reserved].
(g) D eposit of Insurance Proceeds . CCP shall promptly deposit any insurance proceeds received by CCP from any insurance obtained pursuant to this Agreement or otherwise associated with the Project into the Operating Accounts of the Project Participants based on each Project Participants’ Entitlement Shares.
(h) Liquidated a
nd Other Damages . Any amounts paid to CCP, or applied against payments otherwise due by CCP pursuant to the PPA or each Project Participant’s respective BLPTA, by the Project Developer shall be deposited on a pro rata share, based on each Project Participant’s Entitlement Share into each Project Participant’s Operating Account.
Liquidated damages include, but are not limited to Delay Damages, RA Deficiency Amount, Capacity Buydown Damages, Shortfall Liquidated Damages, Damage Payment, and Termination Payment.
(i) Green Attributes. C
CP shall take such actions or implement such measures
as may be necessary to facilitate the transfer of Green Attributes from the Project Developer to the Project Participants.
(j) Resale of Product. Any Project Participant may direct CCP to remarket such Project Participant’s Entitlement Share of the Product, or such Project Participant’s Entitlement DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A 3
Share of any part of the Product. If CCP incurs any expenses associated with the remarketing activities pursuant to this Section 5.1(j), then CCP shall include the total amount of such expenses as a Monthly Cost on the Project Participant’s next Billing Statement. Prior to offering the Project Participant’s Entitlement Share of the Product, or the Project Participant’s Entitlement Share of any part of the Product to any third party, CCP shall first offer the Product or portion of the Product to the other Project Participants. The amount of compensation paid to the selling Project Participant shall be negotiated and agreed to between the selling Project Participant and the purchasing Project Participant or third party. Any payments for any resold Product pursuant to this Section 5.1(j) shall be transmitted directly from the purchasing Project Participant or purchasing third party to the reselling Project Participant. Any such resale to a third party shall not convey any rights or authority over the operation of the Project , and the Project Participant shall not make a representation to the third party that the resale conveys any rights or authority over the operation of the Project.
(k) U
ncontrollable Forces . CCP shall not be required to provide, and CCP shall not be liable for failure to provide, the Product, Replacement RA, or other service under this Agreement when such failure, or the c essation or curtailment of, or interference with, the service is caused by Uncontrollable Forces or by the failure of the Project Developer, or its successors or assigns, to obtain any required governmental permits, licenses, or approvals to acquire, administer, or operate the Project; provided, however, that the Project Participants shall not thereby be relieved of their obligations to make payments under this Agreement except to the extent CCP is so relieved pursuant to the PPA, and provided further that CCP shall pursue all applicable remedies against the Project Developer under the PPA and distribute any remedies obtained pursuant to Section 5.1(h).
(l) Insurance. W
ithin one hundred and eighty days (180) of the Effective Date of this Agreement, CCP shall secure and maintain, during the Term, insurance coverage as follows:
(i) Commercial G eneral Liability. CCP shall maintain, or cause to be maintained, commercial general liability insurance, including products and completed operations and personal injury insurance, in a minimum amount of One Million Dollars ($1,000,000) per occurrence, and an annual aggregate of not less than Two Million Dollars ($2,000,000), endorsed to provide contractual liability in said amount, specifically covering CCP’s obligations under this Agreement and including each Project Participant as an additional insured. (ii) Employer’s Liability Insurance. CCP, if it has employees, shall maintain Employers’ Liability insurance with limits of not less than One Million Dollars ($1,000,000.00) for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the One Million Dollar ($1,000,000) policy limit will apply to each employee. (iii) Workers’ Compensation Insurance. CCP, if it has employees, shall also maintain at all tim es during the Term workers’ compensation and employers’ liability insurance coverage in accordance with statutory amounts, with employer’s liability limits of not less than One Million Dollars ($1,000,000.00) for each accident, injury, or illness; and incl ude a blanket waiver of subrogation.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A 4
(iv) Business Auto Insurance. CCP shall maintain at all times during the Term business auto insurance for bodily injury and property damage with limits of One Million Dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of CCP’s use of all owned (if any), non- owned and hired vehicles, including trailers or semi -trailers in the performance of the Agreement and shall name each Project Participant as an additional insured and contain standard cross-liability and severability of interest provisions. (v) Public Entity Liability
Insurance. CCP shall maintain public entity
liability insurance, including public officials’ liability insurance, public entity reimbursement insurance, and employment practices liability insurance in an amount not less than One Million Dollars ($1,000,000) per claim , and an annual aggregate of not less than One Million Dollars ($1,000,000) and CCP shall maintain such coverage for at least two (2) years from the termination of this Agreement.
(m) Evidence of Insurance. Within ten (10) days after the deadline for securing insurance coverage specified in Section 5.1(l), and upon annual renewal thereafter, CCP shall deliver to each Project Participant certificates of insurance evidencing such coverage with insurers with ratings comparable to A-VII or higher, and that are authorized to do business in the State of California, in a form evidencing all coverages set forth above. Such certificates shall specify that each Project Participant shall be given at least thirty (30) days prior Notice by CCP in the event of cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of each Project Participant. Any other insurance maintained by CCP not associated with this Agreement is for the exclusive benefit of CCP and shall not in any manner inure to the benefit of Project Participants. The general liability, auto liability and worker’s compensation policies shall be endorsed with a waiver of subrogation in favor of each Project Participant for all work performed by CCP, its employees, agents and sub-contractors.
5.2. Role of CCP Board.
(a) The rights and obligations of CCP under the PPA shall be subject to the ultimate control at all times of the CCP Board. The CCP Board shall have, in addition to the duties and responsibilities set forth elsewhere in this Agreement, the duties and responsibilities listed below, among others. The actions identified in Section 5.2(a)(ii) through (a)(ix) and Section
5.2(a)(xiii) shall require CCP Board approval.
(i) D
ispute Resolution. The CCP Board shall review, discuss and attempt to resolve any disputes among CCP, any of the Project Participants, and the Project Developer relating to the Project, the operation and management of the Project , and CCP’s rights and interests in the Project.
(ii) PPA. Th e CCP Board shall have the authority to review, modify, and approve, as appropriate, all amendments, modifications, and supplements to the PPA. (iii) Capital Improvements. The CCP Board shall review, modify, and approve, if appropriate, all Capital Improvement s undertaken with respect to the Project and all financing arrangements for such Capital Improvements. The CCP Board shall approve those DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A 5
budgets or other provisions for the payments associated with the Project and the financing for any development associated with the Project.
(iv) [Reserved].
(v) B udgeting. Upon the submission of a proposed Annual Budget, the CCP Board shall review, modify, and approve each Annual Budget and Amended Annual Budget in accordance with Section 5.1(c) of this Agreement.
(vi) Early Termination of PPA . T he CCP Board shall review, modify, and approve the recommendations of the CCP Manager , made pursuant to Section 6.2(b) of this Agreement, as to an early termination of the PPA pursuant to Section 13.3 of the PPA . (vii) Assignment by Pr o ject Developer . The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.2(c) of this Agreement, as to any assignment by Project Developer pursuant to Section 14.7. (viii) Buyer Financing Assignment. Th e CCP Board shall review, modify, and approve the recommendations of the CCP Manager , made pursuant to Section 6.2(d) of this Agreement, as to an assignment by CCP to a financing entity. (ix) Change of Control . T he CCP Board shall review, modify, and approve the recommendations of the CCP Manager , made pursuant to Section 6.2( e) of this Agreement, as to any Change of Control requiring CCP’s consent, as specified in Section 14.7 of the PPA.
(x) Supervening Authority of the Board. T he CCP Board has complete and plenary supervening power and authority to act upon any matter which is capable of being acted upon by the CCP Manager or which is specified as being within the authority of the CCP Manager pursuant to the provisions of this Agreement.
(xi) Other Matters. The CCP Board is authorized to perform such other functions and duties, including oversight of those matters and responsibilities addressed by the CCP Manager as may be provided for under this Agreement and under the PPA , or as may otherwise be appropriate.
(xii) Periodic Audits. T he CCP Board or the CCP Manager may arrange for the annual audit by certified accountants, selected by the CCP Board and experienced in electric generation or electric utility accounting, of the books and accounting records of CCP, the Project Developer to the extent authorized under the PPA, and any other counterparty under any agreement to the extent allowable, and such audit shall be completed and submitted to the CCP Board as soon as reasonably practicable after the close of the Contract Year. CCP shall promptly furnish to the Project Participant copies of all audits. No more frequently than once every calendar year, each Project Participant may, at its sole cost and expense, audit, or cause to be audited the books and cost records of CCP, and/or the Project Developer to the extent authorized under the PPA. (xiii) Compliance Expenditures . T he CCP Board shall review, modify, and approve the recommendations of the CCP Manager , made pursuant to Section 6.4( f) of this DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A 6
Agreement, as to Compliance Costs as specified in Section 8.6(c) of the PPA. If the CCP Board authorizes CCP to agree to reimburse Project Developer for Accepted Compliance Costs, then such amount shall be added to the amount of Operating Costs included in the Monthly Cost calculation for the subsequent month.
(b) Pursuant to Section 5.06 of the Joint Powers Agreement, this Agreement modifies the voting rules of the CCP Board for purposes of approving or acting on any matter identified in this Agreement, as follows:
(i) Q
uorum . A quorum shall consist of a majority of the CCP Board members that represent Project Participants.
(ii) Voting. Each CCP Board member that represents a Project Participant shall have one vote for any matter identified in this Agreement. Any CCP Board member representing a CCP member that is not a Project Participant shall abstain from voting on any matter identified in this Agreement. A vote of the majority of the CCP Board members representing Project Participants that are in attendance shall be sufficient to constitute action, provided a quorum is established and maintained.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B 1
EXHIBIT B
ARTICLE 6
ROLE AND RESPONSIBILITIES OF CCP MANAGER
6.1. Role of CCP Manager. The CCP Manager shall take all actions necessary to ensure that CCP fulfills its obligations under this Agreement, including the obligations set forth in Section
5.1. The CCP Manager is authorized to take any action that CCP is authorized to take, except those actions that expressly require CCP Board approval. In addition to any duties or responsibilities set forth elsewhere in this Agreement, the CCP Ma nager is directed to do the following:
(a) C
onsult with the Project Participants with respect to the ongoing administration of the Project, including through the formation of advisory subcommittees. (b) Oversee, as appropriate, the completion of any Project design, feasibility, or planning studies or activities.
(c) Review, discuss, and attempt to resolve any disputes among the Project Participants relating to this Agreement or the PPA.
(d) Review each invoice submitted by Project Developer and request such other data necessary to support the review of such invoices.
(e) Respond to any requests for tax- related documentation by the Project Developer.
(f) Provide the Project Developer with Financial Statements as may be required by the PPA.
(g) Correspond with the Project Developer to compile and distribute to Project Participants information and/or documents required for Project Participants to submit reports to any federal, state, or local regulatory body or other authority regarding the Project in such format as required by applicable authority, and respond to any request by a Project Participant for information or documents that are reasonably available to (i) allow the Project Participant to respond to requests for such information from any federal, state, or local regulatory body or other authority; or (ii) for a Project Participant to conduct planning, budgeting, or other regulatory activities.
(h) Upon a request or demand by any third person that is not a Party to the PPA or a Project Participant, for Confidential Information as described in Section 14.21 of the PPA, the CCP Manager shall notify the Project Developer and coordinate the response of CCP and Project Participants.
(i) Review Progress Reports provided by Project Developer to CCP pursuant to Section 3.6 of the P PA and participate in any associated meetings with Project Developer to discuss construction progress. If Project Developer provides a Progress Report to CCP, the CCP DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B 2
Manager shall promptly provide such Progress Report to each Project Participant. The CCP Manager shall promptly notify the Project Participants upon receiving a Progress Report from the Project Developer that identifies a delay to the Construction Start Date or Commercial Operation Date.
(j) Take any necessary actions or implement such measur es as may be necessary to facilitate the transfer of Environmental Attributes from the Project Developer to the Project Participants.
(k) Perform such other functions and duties as may be provided for under this Agreement, the PPA, or as may otherwise be appropriate or beneficial to the Project or the Project Participants, unless such action requires CCP Board approval pursuant to this Agreement. (l) Within three hundred and sixty-five (365) days of the Effective Date, adopt procedures for all Project Participants to acquire additional import capability rights or other similar rights for each Proposed Facility, and a process for directing CCP to accept or reject each Proposed Facility based on the acquisition of such import capability rights or other similar rights, as specified in Section 3.1 of the PPA.
6.2. CCP Manager Recommendations to the CCP Board.
(a) B
udgeting. Recommend each proposed Annual Budget and proposed Amended Annual Budget for submission to the CCP Board for final approval. (b) Early Termination of PPA . R ecommend to the CCP Board regarding an early termination of the PPA pursuant to Section 13.3 of the PPA. (c) Assignment by Project Developer . R ecommend to th e CCP Board any proposed assignment by Project Developer pursuant to Section 14.7 of the PPA. (d) Buyer Financing Assignment. R ecommend to the CCP Board regarding an assignment by CCP to a financing entity.
(e) Change of Control. R ecommend to the CCP Board any Change of Control requiring CCP’s consent, as specified in Section 14.7 of the PPA. (f) Compliance Expenditures. Recommend t o the CCP Board any Compliance Expenditures, as specified in Section 8.6(c) of the PPA.
6.3. CCP Manager Report to CCP Board on Actions relating t o the PPA or the Project.
The CCP Manager shall report to the CCP Board on the occurrence of any of the following actions taken by the CCP Manager. Such report may be written or oral and shall be provided at the next CCP Board Meeting occurring within a reasonable amount of time after the action was taken. Any information included as part of such report may be provided by the CCP Manager in a manner that maintains the confidentiality of such information, as reasonably determined to be necessary by the CCP Manager.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B 3
(a) Any recommendations made by the CCP Manager to the Project Developer on the design of the Project.
(b) [Reserved.]
(c) Any exercise CCP’s rights under the PPA upon the occurrence of a Default under Section 13.1 of the PPA.
(d) The approval of any rules, procedures, and protocols for the administration of the Project, including rules, procedures, and protocols for the management of the costs of the Project and the scheduling, handling, tagging, dispatching, and crediting of the Product, the handling and crediting of Green Attributes associated with the Project and the control and use of the Project.
(e) The approval of any rules, procedures, and protocols for the monitoring, inspection, and the exercise of due diligence activities relating to the operation of the Project. (f) The approval or other action relating to the form or content of any written statistical, administrative, or operational reports, Project -related data an d technical information, Project reliability data, transmission information, forecasting, scheduling, dispatching, tagging, parking, firming, exchanging, balancing, movement, or other delivery information, and similar information and records, or matters pertaining to the Project which are furnished to the Project Participants or the CCP Manager by the the Project Developer, experts, consultants or others. (g) The approval of any practices and procedures to be followed by Project Participants for, among other things, the production, scheduling, tagging, transmission, delivery, firming, balancing, exchanging, crediting, tracking, monitoring, remarketing, sale, or disposition of the Product, including the control and use of the Project. (h) The approval of any arrangements and instruments entered into by the Project Developer or any affiliate thereof to, among other things, secure certain performance requirements, including, but not limited to, the PPA, the Development Security or the Delivery Term Security and any other letter of credit delivered to, or for the benefit of, CCP by the Project Developer and take such actions or make such recommendations as may be appropriate or desirable in connection therewith.
(i) The approval of policies or programs formulated by CCP or Project Developer for determining or estimating the values, quantities, volumes, or costs of the Product from the Project.
(j) Any recommendations made by the CCP Manager to the Project Developer as to the implementation of metering technologies and methodologies appropriate for the delivery, accounting for, transferring and crediting of the Product to the Point of Delivery (directly or through the Project).
(k) Th e approval or disapproval of any specifications, vendors’ proposals, bid evaluations, or any related matters with respect to the Project.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B 4
(l) Reserved.
(m) The approval of the submission of the written acknowledgement of the Commercial Operation Date in accordance with Section 3.5 of the PPA. (n) The approval of the return of the Project Development Security to Project Developer in accordance with Section 5.9(c) of the PPA. (o) The approval of the return of any unused Delivery Term Security to Project Developer in accordance with Section 5.9(d) of the PPA. (p) The collection of any liquidated damages owed by Project Developer to CCP under the PPA , or any draw upon the Project Development Security or Delivery Term Security.
(q) Any dispute by CCP of invoices pursuant to Section 11.3 of the PPA. (r) Any direction to the Project Developer to change the Negative LMP Strike Price in pursuant to Appendix A of the PPA.
(s) Any direction to take such actions or implement such measures as may be necessary to facilitate the transfer of Green Attributes from the Project Developer to the Project Participants.
(t) Any direction to the Project Developer to purchase Energy in excess of Maximum Generation pursuant to Section 3.10 of the PPA
(u) Any demand of payment and collection of damages pursuant to Section 3.11 of the PPA.
(v) Any direction to withhold funds from Project Developer pursuant to Section 6.1(c) of the PPA.
(w) Any direction to designate an authorized representative pursuant to Section
14.1 of the PPA.
(x) Any direction to either accept or reject the Notice of Revised Net Capacity, as specified in Section 3.9 and 6.1 of the PPA.
6.4. S ubcommittees . The CCP Manager may establish as needed subcommittees including, but not limited to, auditing, legal, financial, engineering, mechanical, weather, geologic, diurnal, barometric, meteorological, operating, insurance, governmental relations, environmental, and public information subcommittees. The authority, membership, and duties of any subcommittee shall be established by the CCP Manager ; provided, however, such authority, membership or duties shall not conflict with the provisions of the PPA or this Agreement.
6.5. Project Participant Expenses. Any expenses incurred by any representative of any Project Participant or group of Project Participants serving on any subcommittee in connection DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B 5
with their duties on such subcommittee shall be the responsibility of the Project Participant which they represent and shall not be an expense payable under this Agreement.
6.6. D elegation . To secure the effective cooperation and interchange of information in a timely manner in connection with various administrative, technical, and other matters which may arise from time to time in connection with administration of the PPA, in appropriate cases, duties and responsibilities of the CCP Board, as the case may be under this Section 6, may be delegated to the CCP Manager by the CCP Board upon notice to the Project Participants.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit C 1
EXHIBIT C
ARTICLE 8
OPERATING ACCOUNT
8.1. Calculation of Estimated Monthly Project Cost.
(a) No later than one hundred and eighty (180) days after the Effective Date, the CCP Manager shall present to the Project Participants a proposed Estimated Monthly Project Cost, which shall be equal to the single highest forecasted Monthly Cost over the first Contract Year. The Project Participants shall review, and, if appropriate, recommend approval of or modification to the proposed Estimated Monthly Project Cost.
8.2. Operating Account. CCP shall establish an Operating Account for each Project Participant that is accessible to and can be drawn upon by both CCP and the applicable Project Participant. Such Operating Accounts are for the purpose of providing a reliable source of funds for the payment obligations of the Project and, taking into account the variability of costs associated with the Project for the purpose of providing a reliable payment mechanism to address the ongoing costs associated with the Project.
(a) Operating Account Amount. The Operating Account Amount for each Project Participant shall be an amount equal to the Estimated Monthly Project Cost multiplied by three (3), the product of which is multiplied by such Project Participant’s Entitlement Share (“Operating Account Amount”).
(b) Initial Funding of Operating Account. By no later than sixty (60) days after CCP’s notification to Project Participants of Buyer’s Notice that a Proposed Facility shall be an Included Facility pursuant to Section 3.1 of the PPA, each Project Participant shall deposit into such Project Par ticipant’s Operating Account an amount equal to that Project Participant’s Operating Account Amount.
(c) Use of Operating Account. CCP shall draw upon each Project Participant’s Operating Account each month in an amount equal to the Monthly Costs multiplied by such Project Participant’s Entitlement Share. As required by Section 9.5, each Project Participant must deposit sufficient funds into such Project Participant’s Operating Account by the deadline specified in Section 9.5.
(d) Final Distribution of Operating Account. Following the expiration or earlier termination of the PPA , and upon payment and satisfaction of any and all liabilities and obligations to make payments of the Project Participants under this Agreement and upon satisfaction of all remaining c osts and obligations of CCP under the PPA, any amounts then remaining in any Project Participant’s Operating Account shall be paid to the associated Project Participant.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.