TO: HONORABLE MAYOR FROM: Lori Mitchell
AND CITY COUNCIL
SUBJECT: SEE BELOW DATE: February 6, 2023
Approved Date
02/13/23
SUBJECT: AMENDMENTS TO AGREEMENTS WITH CALIFORNIA COMMUNITY
POWER FOR LONG DURATION STORAGE AND GEOTHERMAL
POWER
RECOMMENDATION
Adopt a resolution authorizing the Director of the Community Energy Department or designee to execute first amendments to four separate project participation share agreements with California Community Power and other Community Choice Aggregators transferring various responsibilities from project committees to the general manager of California Community Power and removing inefficient procedures and processes.
SUMMARY AND OUTCOME
In 2022, the City Council approved, and the City Manager signed, four separate project participation and share agreements to buy long duration storage and geothermal power from California Community Power (CC Power). The City is taking a share of each of the four projects, along with other Community Choice Aggregators (CCAs). The project participation and share agreements, respectively, set forth the share of each project to be taken by each participating CCA, and the processes and procedures for decision-making and administration of the agreements between CC Power and the participating CCAs.
The project participation and share agreements, collectively, were the first agreements signed by CC Power, after its creation in 2021. CC Power and the participating CCAs have since determined the need to amend the agreements to transfer decision-making for the administration of the projects from a project committee formed by representatives of the participating CCAs to the general manager of CC Power. These changes will substantially decrease burdens on the Community Energy Department associated with participating in these project agreements. The amendments do not change the City’s participation share in the projects or its payment obligations under the agreements.
COUNCIL AGENDA: 02/28/23
FILE: 23-261
ITEM: 2.12
HONORABLE MAYOR AND CITY COUNCIL
February 6, 2023
Subject: Amendments to Agreement with California Community Power for Long Duration Storage and Geothermal Power
BACKGROUND
On March 8, 2022, the City Council authorized the City Manager to execute a project participation and share agreement with CC Power and participating Community Choice Aggregators1 to buy long-duration storage developed by Tumbleweed Energy Storage, LLC (see Resolution 80404).
On May 17, 2022, the City Council authorized the City Manager to execute a project participation and share agreement with CC Power and participating CCAs 2 to buy long-duration
storage developed by Goal Line BESS 1, LLC (see Resolution 80502).
On August 30, 2022, the City Council authorized the City Manager to sign project participation and share agreements with CC Power and participating CCAs 3 to buy:
• Geothermal power developed by ORGP LLC (see Resolution 80662); and • Geothermal power developed by Fish Lake Geothermal LLC (see Resolution 80662).
On December 14, 2022, the CC Power Board approved a three-year Strategic Business Plan which recommends that CC Power hire a full-time general manager and transfer the responsibilities from project participants to the general manager. The Board also approved amendments to the four-project participation and share agreements. The original agreements established detailed rules and procedures for the conduct of a project committee to be comprised of a representative of each participating CCA. Each respective project committee was delegated substantial responsibilities for day-to-day decisions associated with the administration of the project. The amendments transfer responsibilities from each project committee to the general manager and remove inefficient procedures and processes associated with the administration of the projects.
ANALYSIS
Staff recommends approval of the proposed amendments (see Attachments A-D) to allow for the streamlined management of the CC Power projects. One of the benefits of purchasing power through participation in CC Power is the ability to reduce risks by taking smaller shares of a larger number of projects. For example, if one project fails, the impact on each participating CCA is moderated. However, as CC Power adds more projects, it becomes increasingly burdensome for participating CCAs to administer each of these projects by committee. This is
1 Peninsula Clean Energy, Sonoma Clean Power, CleanPower San Francisco, Redwood Coast Energy Authority, Silicon Valley Clean Energy, and Valley Clean Energy.
2 CleanPower San Francisco, Redwood Coast Energy Authority, Silicon Valley Clean Energy, Sonoma Clean Power, and Valley Clean Energy.
3 Sonoma Clean Power, CleanPower San Francisco, Redwood Coast Energy Authority, Peninsula Clean Energy Authority, Central Coast Community Energy, Silicon Valley Clean Energy, and Valley Clean Energy.
HONORABLE MAYOR AND CITY COUNCIL
February 6, 2023
Subject: Amendments to Agreement with California Community Power for Long Duration Storage and Geothermal Power
one of the reasons that the CC Power’s strategic plan called for hiring a full-time general manager, and the reason why the CC Power Board voted to approve the amendments.
EVALUATION AND FOLLOW-UP
No additional follow-up is anticipated.
COST SUMMARY/IMPLICATIONS
The amendments will not change the City’s participation in the CC Power projects or its payment obligations.
COORDINATION
This memorandum has been coordinated with the City Attorney’s Office and the City Manager’s Budget Office.
PUBLIC OUTREACH
This memorandum will be posted on the City’s Council Agenda website for the February 28, 2023 City Council meeting.
COMMISSION RECOMMENDATION AND INPUT
No commission recommendation or input is associated with this action.
CEQA
Not a Project, File No. PP17-003, Agreements/Contracts (New or Amended) resulting in no physical changes to the environment.
PUBLIC SUBSIDY REPORTING
This item does not include a public subsidy.
HONORABLE MAYOR AND CITY COUNCIL
February 6, 2023
Subject: Amendments to Agreement with California Community Power for Long Duration Storage and Geothermal Power
/s/
LORI MITCHELL
Director, Community Energy
For questions, please contact Lori Mitchell, Director of Community Energy Department, at (408) 535-4880.
ATTACHMENTS
• Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement • Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement • Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement • Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement AMENDMENT NO. 1 TO
TUMBLEWEED ENERGY STORAGE
PROJECT PARTICIPATION SHARE AGREEMENT
-1-
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
among
CI
TY AND COUNTY OF SAN FRANCISCO, ACTING BY AND THROUGH ITS PUBLIC Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement AMENDMENT NO. 1 TO
TUMBLEWEED ENERGY STORAGE
PROJECT PARTICIPATION SHARE AGREEMENT
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This AMENDMENT NO. 1 to TUMBLEWEED ENERGY STORAGE PROJECT PARTICIPATION SHARE AGREEMENT (“Amendment”), dated as of , (the “Amendment Effective Date”) is entered into by and among 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 (each individually a “Project Participant” and collectively referred to as the “Project Participants”) and California Community Power (“CCP”), 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 April 19, 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
W
HEREAS, CCP and the Project Participants entered into the Tumbleweed Energy Storage Project Participation Share with an Effective Date of April 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. Recitals. The Recitals stated above are true and correct and are incorporated by this reference into this Amendment No. 1.
2. Capitalized Terms. All 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. Article 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. Article 1 Definition of “CCP Manager” is hereby deleted and replaced with the following language: “CCP Manager” means the General Manager of California Community Power Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement -3-
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement or
any person who is designated by the CCP Board to act in the capacity of the General Manager.
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 7 is amended to include the language contained in Exhibit C i. Article 8 is hereby deleted and replaced with the language contained in Exhibit D of this Amendment.
j. 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.” k. Exhibit C Section (a)(i)(A) “Establish Entitlement Share Reduction Compensation Amount” is hereby amended by deleting all reference to the “Project Committee” and replacing it with “Project Participants.”
l. 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.”
m. Exhibit C Section (a)(i)(B)(e) is hereby amended by deleting “and upon approval of such transfer by the Project Committee,.”
n. Exhibit D of the PPSA is here by deleted.
4. N o Other Changes. Except 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 PPSA as amended by this Amendment.
5. Counterparts . This 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.
[Signatures appear on following page.]
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Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
C
alifornia Community Power
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:
Redwood Coast Energy Authority San José Clean Energy
By: By:
Name:
Title:
Name:
Title:
Approved as to form by Counsel Approved as to form by Counsel By: By:
Name:
Title:
Name:
Title:
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Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement Silicon Valley Clean Energy Authority Sonoma Clean Power Authority By: By:
Name:
Title:
Name:
Title:
Approved as to form by Counsel By:
By:
Name:
Title:
Name:
Title: By:
Name:
Title:
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
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Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement Approved as to form by Counsel
By:
Name:
Title:
Valley Clean Energy
By:
Name:
Title:
Exhibit A 1
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement
EXHIBIT A
ARTICLE 5
OBLIGATIONS OF CCP AND ROLE OF CCP BOARD
5.1. Obligations of CCP.
(a) CCP shall take such commercially reasonable actions or implement such commercially reasonable measures as may be necessary 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 ESSA 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 ESSA, 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 ESSA.
(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 ESSA, 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 Contract 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 costs, 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 Exhibit A 2
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement and the CCP Board shall cause copies of such adopted Amended Annual Budget to be delivered to each Project Participant.
(iii) Reports. CCP will prepare and issue to Project Participants the following reports each quarter of a year during the Term:
(A) Financial 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. Upon CCP’s request, each Project Participant agrees to coordinate with CCP to provide such information, documentation, and certifications that are reasonably necessary 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) Deposit of Insurance Proceeds. CCP shall promptly deposit any insurance proceeds received by CCP from any insurance obtained pursuant to this Agreement or otherw ise associated with the Project into the Operating Accounts of the Project Participants based on each Project Participants’ Entitlement Shares.
(h) Liquidated and Other Damages. Any amounts paid to CCP, or applied against payments otherwise due by CCP pursuant to the ESSA 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 Daily Delay Damages, RA Deficiency Amount, Damage Payment, and Termination Payment.
(i) Charging and Discharging Energy. CCP shall reasonably coordinate, schedule, and do all other things necessary or appropriate, except as otherwise prohibited under this Agreement, to provide for the delivery of Charging Energy from the grid to the Point of Delivery to enable CCP to exercise its rights and obligations in connection with Charging Energy in accordance with the requirements of the ESSA. CCP shall reasonably coordinate, schedule, and do all other things necessary or appropriate, except as otherwise prohibited under this Agreement, to provide for the delivery of Discharging Energy from the Point of Delivery to the grid to enable Exhibit A 3
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement CCP to maximize the value of the ESSA to the Project Participants in accordance with the requirements of the ESSA.
(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 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) Uncontrollable 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 cessation 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 ESSA, and provided further that CCP shall pursue all applicable remedies against the Project Developer under the ESSA and distribute any remedies obtained pursuant to Section 5.1(h).
(l) Insurance. Within 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) C ommercial General 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’ Compensat
ion Insurance. CCP, if it has employees, shall
also maintain at all times during the Term workers’ compensation and employers’ liability Exhibit A 4
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement 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 include a blanket waiver of subrogation.
(iv) B usiness 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 ESSA 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) shall require CCP Board approval.
(i) Dispute 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 Facility, and CCP’s rights and interests in the Facility.
(ii) ESSA. The CCP Board shall have the authority to review, modify, and approve, as appropriate, all amendments, modifications, and supplements to the ESSA.
Exhibit A 5
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement (iii) Capital Improvements. The CCP Board shall review, modify, and approve, if appropriate, all Capital Improvements undertaken with respect to the Project and all financing arrangements for such Capital Improvements. The CCP Board shall approve those budgets or other provisions for the payments associated with the Project and the financing for any development associated with the Project.
(iv) [Reserved].
(v) Budgeting. Upon the submission of a proposed Annual Budget or proposed Amended 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 ESSA. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.4(b)(ii) of this Agreement, as to an early termination of the ESSA pursuant to Section 11.2 of the ESSA. (vii) Assignment by Project Developer. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section
6.4(b)(iii) of this Agreement, as to any assignment by Project Developer pursuant to Section 14.1 of the ESSA other than any assignment pursuant to Sections 14.2 or 14.3 of the ESSA. (viii) Buyer Financing Assignment. The 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 pursuant to Section 14.5 of the ESSA. (ix) Change of Control. The 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 14.1 of the ESSA.
(x) Supervening Authority of the Board. The 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. T
he 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 ESSA, or as may otherwise be appropriate.
(xii) Periodi
c Audits. The 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 ESSA, 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 Exhibit A 6
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement the books and cost records of CCP, and/or the Project Developer to the extent authorized under the ESSA.
(xiii) Scheduling Coordinator Services Agreement . Upon a recommendation by the CCP Manager pursuant to Section 6.2(f), the CCP Board shall review, modify, and approve, or delegate the authority to approve, a Scheduling Coordinator Services Agreement or amendment thereto.
(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.
Exhibit B 1
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement
EXHIBIT B
ARTICLE 6
ROLE AND R ESPONSIBILITIES 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. T he 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 Manager is directed to do the following:
(a) Consult 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 ESSA.
(d) Review each invoice submitted by Project Developer and shall 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.
by the ESSA.
(f) Provide the Project Developer with Financial Statements as may be required (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 Projec t 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 ESSA or a Project Participant, for Confidential Information as described in Section 18.2 of the ESSA, 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 2.3 of the ESSA and participa te in any associated meetings with Project Developer to discuss construction progress. If Project Developer provides a Progress Report to CCP, the CCP Exhibit B 2
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement 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 measures 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 ESSA, 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.
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 ESSA. Recommend to the CCP Board regarding an early termination of the ESSA pursuant to Section 11.2 of the ESSA. (c) Assignment by Project D eveloper. Recommend to the CCP Board any proposed assignment by Project Developer pursuant to Section 14.1 of the ESSA other than any assignment pursuant to Sections 14.2 or 14.3 of the ESSA. (d) Buyer Financing Assignment. Recommend to the CCP Board an assignment by CCP to a financing entity pursuant to Section 14.5 of the ESSA. (e) Change of Control. Recommend to the CCP Board any Change of Control requiring CCP’s consent, as specified in Section 14.1 of the ESSA. (f) Scheduling Coordinator. Recommend to the CCP Board the selection of a Scheduling Coordinator and the form of the Scheduling Coordinator Services Agreement, including any amendments thereto. Such Scheduling Coordinator Services Agreement shall: (i) require that the scheduling and dispatch of the P roject is in accordance with the criteria set forth in the Coordinated Operations Agreement; (ii) include the Scheduling Coordinator responsibilities specified in the Coordinated Operations Agreement; and (iii) address requirements relating to CAISO settlements, the Operating Restrictions, and communications and reporting from the Scheduling Coordinator to the Project Participants.
6.3. CCP Manager Report to CCP Board on Actions relating to 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.
Exhibit B 3
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement (a) Any recommendations made by the CCP Manager to the Project Developer on the design of the Project.
(b) Confirmation by the CCP Manager that the requirements of Exhibit B of the ESSA have been satisfied, such that the Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date has been extended.
(c) An y exercise its rights under the ESSA if an Event of Default has occurred under Section 11.1 of the ESSA or under the Scheduling Coordinator Services Agreement. (d) Th e approval or any rules, procedures, and protocols for the administration of the Project, including rules, procedures, and protocols for the management of the costs of the Facility and the scheduling, handling, tagging, dispatching, and crediting of the Product, the handling and crediting of Environmental Attributes associated with the Facility and the control and use of the Facility.
(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 Facility. (f) The approval or other action relating to the form or content of any written statistical, administrative, or operational reports, Facility -related data and storage information, technical information, facility 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 Project Developer, experts, consultants or others.
(g) The approval or modification 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 Facility, and the supply, scheduling, and use of Charging Energy.
(h) The approval or modification 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 ESSA, the Development Security or the Performance 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 storage resources or the values, quantities, volumes, or costs of the Product from the Facility.
(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 Facility).
Exhibit B 4
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement (k) The approval or disapproval of any specifications, vendors’ proposals, bid evaluations, or any related matters with respect to the Facility. (l) The approval of any Remedial Action Plan submitted by Project Developer to CCP pursuant to Section 2.4 of the ESSA.
(m) The approval of the submission of the written acknowledgement of the Commercial Operation Date in accordance with Section 2.2 of the ESSA. (n) The approval of the return of the Development Security to Project Developer in accordance with Section 8.7 of the ESSA.
(o) The approval of the return of any unused Performance Security to Project Developer in accordance with Section 8.8 of the ESSA.
(p) The collection of any liquidated damages owed by Project Developer to CCP under the ESSA, or any draw upon the Development Security or Performance Security. (q) Any dispute by CCP of an invoice pursuant to Section 8.5 of the ESSA. (r) The collection of any damages owed by the Scheduling Coordinator to CCP under the Scheduling Coordinator Services Agreement or any action permitted by law to enforce CCP’s rights under the Scheduling Coordinator Services Agreement, including but not limited to bringing any suit, action or proceeding at law or in equity as may be necessary or appropriate to recover damages and/or enforce any covenant, agreement, or obligation against the Scheduling Coordinator.
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 ESSA or this Agreement. (a) P roject Participant Expenses. Any expenses incurred by any representative of any Project Participant or group of Project Participants serving on any subcommittee in connection 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.
6.5. 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 ESSA, 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.
Exhibit C 1
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement
EXHIBIT C
ARTICLE 7
COORDINATED OP ERATIONS AGREEMENT
7.1. Coordinated Ope rations Agreement. The Project Participants shall establish a Coordinated Operations Agreement by and among CCP and all Project Participants for purposes of operating the Project.
7.2. [Reserved].
Exhibit D 1
Attachment A - Amendment No. 1 to Tumbleweed Project Participation and Share Agreement
EXHIBIT D
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 a forecast of expected Monthly Capacity Payments over an entire Contract Year, divided by twelve (12). 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, 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 the Construction Start Date pursuant to Exhibit B of the ESSA, each Project Participant shall deposit into such Project Participant’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 ESSA, 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 costs and obligations of CCP under the ESSA, any amounts then remaining in any Project Participant’s Operating Account shall be paid to the associated Project Participant.
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement AMENDMENT NO. 1 TO
GOAL LINE STORAGE
PROJECT PARTICIPATION SHARE AGREEMENT
-1-
UTILITIES COMMISSION CLEANPOWERSF
and
REDWOOD COAST ENERGY AUTHORITY
and
CITY OF SAN JOSÉ, ADMINISTRATOR OF SAN JOSÉ CLEAN ENERGY
and
SILICON VALLEY CLEAN ENERGY
and
SONOMA CLEAN POWER
and
VALLEY CLEAN ENERGY
and
CALIFORNIA COMMUNITY POWER
among
CITY AND COUNTY OF SAN FRANCISCO, ACTING BY AND THROUGH ITS PUBLIC Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement AMENDMENT NO. 1 TO
GOAL LINE STORAGE
PROJECT PARTICIPATION SHARE AGREEMENT
-2-
This AMENDMENT NO. 1 to GOAL LINE STORAGE PROJECT PARTICIPATION SHARE AGREEMENT (“Amendment”), dated as of , (the “Amendment Effective Date”) is entered into by and among the City and County of San Francisco acting by and through its Public Utilities Commission, CleanPowerSF, Redwood Coast Energy Authority, a California joint powers authority, City of San José, a California municipality, Silicon Valley Clean Energy, a California joint powers authority, Sonoma Clean Power, 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 May 18, 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 Goal Line Storage Project Participation Share with an Effective Date of May 18, 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. Recitals. The Recitals stated above are true and correct and are incorporated by this reference into this Amendment No. 1.
2. C apitalized Terms. All capitalized terms used herein, which are not defined herein, shall have the meanings ascribed thereto in the PPSA, as amended hereby.
3. A mendments 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. Article 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. Article 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.
d. Article 1 Definition of “Project Committee” is hereby deleted. -3-
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
e. Article 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. Article 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 7 is hereby deleted and replaced with the language contained in Exhibit C of this Amendment.
i. Article 8 is hereby deleted and replaced with the language contained in Exhibit D of this Amendment.
j. 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.”
k. Exhibit C Section (a)(i)(A) “Establish Entitlement Share Reduction Compensation Amount” is hereby amended by deleting all reference to the “Project Committee” and replacing it with “Project Participants.”
l. 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.”
m. Exhibit C Section (a)(i)(B)(e) is hereby amended by deleting “and upon approval of such transfer by the Project Committee,.”
n. Exhibit D of the PPSA is here by deleted.
4. No Other Changes. Except 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 PPSA as amended by this Amendment.
5. Counterparts. This 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.
[Signatures appear on following page.]
-4-
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
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:
Clean Power San Francisco
By:
Name:
Title:
Approved as to form by Counsel
By:
Name:
Title:
Redwood Coast Energy Authority
By:
San José Clean Energy
By:
Name: Name:
Title: Title:
Approved as to form by Counsel
By:
Approved as to form by Counsel
By:
Name: Name:
Title: Title:
-5-
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
Silicon Valley Clean Energy Authority
By:
Sonoma Clean Power Authority
By:
Name: Name:
Title: Title:
Approved as to form by Counsel
By:
By:
Name:
Name: Title:
Title:
By:
Name:
Title:
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:
Exhibit A 1
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
EXHIBIT A
ARTICLE 5
OBLIGATIONS OF CCP AND ROLE OF CCP BOARD
5.1. Obligations of CCP.
(a) CCP shall take such commercially reasonable actions or implement such commercially reasonable measures as may be necessary 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 ESSA 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 ESSA, 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 ESSA.
(c) Adoption 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) The 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 ESSA, 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 Contract 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 costs, 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 Exhibit A 2
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
and the CCP Board shall cause copies of such adopted Amended Annual Budget to be delivered to each Project Participant.
(iii) Reports. CCP will prepare and issue to Project Participants the following reports each quarter of a year during the Term:
(A) Financial 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) Records 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, al l 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) I
nformation Sharing. Upon CCP’s request, each Project Participant agr ees to coordinate with CCP to provide such information, documentation, and certifications that are reasonably necessary 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) Deposit 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 and Other Damages. Any amounts paid to CCP, or applied against payments otherwise due by CCP pursuant to the ESSA 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 Daily Delay Damages, RA Deficiency Amount, Damage Payment, and Termination Payment.
(i) Charging and Discharging Energy. CCP shall reasonably coordinate, schedule, and do all other things necessary or appropriate, except as otherwise prohibited under this Agreement, to provide for the delivery of Charging Energy from the grid to the Point of Delivery to enable CCP to exercise its rights and obligations in connection with Charging Energy in accordance with the requirements of the ESSA. CCP shall reasonably coordinate, schedule, and do all other things necessary or appropriate, except as otherwise prohibited under this Agreement, to provide for the delivery of Discharging Energy from the Point of Delivery to the grid to enable Exhibit A 3
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
CCP to maximize the value of the ESSA to the Project Participants in accordance with the requirements of the ESSA.
(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 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) sha ll 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) Uncontrollable 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 cessation 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 ESSA, and provided further that CCP shall pursue all applicable remedies against the Project Developer under the ESSA and distribute any remedies obtained pursuant to Section 5.1(h).
(l) Insurance. Within 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) C ommercial General 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) E
mployer’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) W
orkers’ Compensation Insurance . CCP, if it has employees, shall also maintain at all times during the Term workers’ compensation and employers’ liability Exhibit A 4
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
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 include a blanket waiver of subrogation.
(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) P
ublic 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 l ess 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 ESS A 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) shall require CCP Board approval.
(i) Dispute 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 Facility, and CCP’s rights and interests in the Facility.
(ii) ESSA. The CCP Board shall have the authority to review, modify, and approve, as appropriate, all amendments, modifications, and supplements to the ESSA.
Exhibit A 5
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
(iii) Capital Improvements. The CCP Board shall review, modify, and approve, if appropriate, all Capital Improvements undertaken with respect to the Project and all financing arrangements for such Capital Improvements. The CCP Board shall approve those budgets or other provisions for the payments associated with the Project and the financing for any development associated with the Project.
(iv) [Reserved].
(v) Budgeting. Upon the submission of a proposed Annual Budget or proposed Amended 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) E arly Termination of ESSA. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.2(b)(ii) of this Agreement, as to an early termination of the ESSA pursuant to Section 11.2 of the ESSA.
(vii) Assignment by Project Developer . The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section
6.4(b)(iii) of this Agreement, as to any assignment by Project Developer pursuant to Section 14.1 of the ESSA other than any assignment pursuant to Sections 14.2 or 14.3 of the ESSA.
(viii) Buyer Financing Assignment. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.4(d) of this Agreement, as to an assignment by CCP to a financing entity. (ix) C hange of Control. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.4(e) of this Agreement, as to any Change of Control requiring CCP’s consent, as specified in Section 14.1 of the ESSA.
(x) Supervening Authority of the Board. The 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) O
ther 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 ESSA, or as may otherwise be appropriate.
(xii) P
eriodic Audits . The 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 ESSA, 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 Exhibit A 6
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
the books and cost records of CCP, and/or the Project Developer to the extent authorized under the ESSA.
(xiii) Scheduling Coordinator Services Agreement . Upon a recommendation the CCP Manager pursuant to Section 6.2(f), the CCP Board shall review, modify, and approve, or delegate the authority to approve, a Scheduling Coordinator Services Agreement or amendment thereto.
(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) Quorum. A quorum shall consist of a majority of the CCP Board members that represent Project Participants.
(ii) V oting. 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.
Exhibit B 1
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
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 Manager is directe d to do the following:
(a) Consult 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 ESSA.
(d) Review each invoice submitted by Project Developer and shall 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.
by the ESSA.
(f) Provide the Project Developer with Financial Statements as may be required
(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 ESSA or a Project Participant, for Confidential Information as described in Section 18.2 of the ESSA, 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 2.3 of the ESSA and participate in any associated meetings with Project Developer to discuss construction progress. If Project Developer provides a Progress Report to CCP, the CCP Exhibit B 2
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
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 measures as may be necessary to facilitate the transfer of Environmental Attributes from the Project D eveloper to the Project Participants.
(k) Perform such other functions and duties as may be provided for under this Agreement, the ESSA, 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.
6.2. CCP Manager Recommendations to the CCP Board.
(i) Budgeting. Recommend each proposed Annual Budget and proposed Amended Annual Budget for submission to the CCP Board for final approval. (ii) E arly Termination of ESSA. Recommend to the CCP Board regarding an early termination of the ESSA pursuant to Section 11.2 of the ESSA. (iii) A ssignment by Project Developer . Recommend to the CCP Board any proposed assignment by Project Developer pursuant to Section 14.1 of the ESSA other than any assignment pursuant to Sections 14.2 or 14.3 of the ESSA.
(iv) Buyer Financing Assignment. Recommend to the CCP Board regarding an assignment by CCP to a financing entity.
(v) Change of Control. Recommend to the CCP Board regarding any Change of Control requiring CCP’s consent, as specified in Section 14.1 of the ESSA.
(vi) Scheduling Coordinator. Recommend to the CCP Board regarding the selection of a Scheduling Coordinator and the form of the Scheduling Coordinator Services Agreement, including any amendments thereto. Such Scheduling Coordinator Services Agreement shall: (i) require that the scheduling and dispatch of the Project is in accordance with the criteria set forth in the Coordinated Operations Agreement; (ii) include the Scheduling Coordinator responsibilities specified in the Coordinated Operations Agreement; and (iii) address requirements relating to CAISO settlements, the Operating Restrictions, and communications and reporting from the Scheduling Coordinator to the Project Participants.
6.3. CCP Manager Report to CCP Board on Actions relating to 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.
Exhibit B 3
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
(a) Any recommendations made by the CCP Manager to the Project Developer on the design of the Project.
(b) Confirmation by the CCP Manager that the requirements of Exhibit B of the ESSA have been satisfied, such that the Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date has been extended.
(c) An y exercise of CCP’s rights under the ESSA if an Event of Default has occurred under Section 11.1 of the ESSA or under the Scheduling Coordinator Services Agreement.
(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 Facility and the scheduling, handling, tagging, dispatching, and crediting of the Product, the handling and crediting of Environmental Attributes associated with the Facility and the control and use of the Facility.
(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 Facility. (f) The approval or other action relating to the form or content of any written statistical, administrative, or operational reports, Facility -related data and storage information, technical information, facility reliability data, transmission information, fore casting, 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 Project Developer, experts, consultants or others.
(g) The approval or modification 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 Facility, and the supply, scheduling, and use of Charging Energy.
(h) The approval or modificaitotn 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 ESSA, the Development Security or the Performance 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 storage resources or the values, quantities, volumes, or costs of the Product from the Facility.
(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, Exhibit B 4
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
accounting for, transferring and crediting of the Product to the Point of Delivery (directly or through the Facility).
(k) The approval or disapproval of any specifications, vendors’ proposals, bid evaluations, or any related matters with respect to the Facility.
(l) The approval of any Remedial Action Plan submitted by Project Developer to CCP pursuant to Section 2.4 of the ESSA.
(m) The approval of the submission of the written acknowledgement of the Commercial Operation Date in accordance with Section 2.2 of the ESSA.
(n) The approval of the return of the Development Security to Project Developer in accordance with Section 8.7 of the ESSA.
(o) The approval of the return of any unused Performance Security to Project Developer in accordance with Section 8.8 of the ESSA.
(p) The collection of any liquidated damages owed by Project Developer t o CCP under the ESSA, or any draw upon the Development Security or Performance Security.
(q) Any dispute by CCP of an invoice pursuant to Section 8.5 of the ESSA. (r) The collection of any damages owed by the Scheduling Coordinator to CCP under the Scheduling Coordinator Services Agreement or any action permitted by law to enforce CCP’s rights under the Scheduling Coordinator Services Agreement, including but not limited to bringing any suit, action or proceeding at law or in equity as may be necessary or appropriate to recover damages and/or enforce any covenant, agreement, or obligation against the Scheduling Coordinator.
6.4. Subcommittees. 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 ESSA or this Agreement. (a) Project Participant Expenses. Any expenses incurred by any representative of any Project Participant or group of Project Participants serving on any subcommittee in connection with their duties on such subcommittee shall be the responsibility of the Project Delegation. 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 ESSA, 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.
Exhibit C 1
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
EXHIBIT C
ARTICLE 7
COORDINATED O PERATIONS AGREEMENT
7.1. Coordinated Operations Agreement. The Project Participants shall establish a Coordinated Operations Agreement by and among CCP and all Project Participants for purposes of operating the Project.
7.2. [Reserved].
Exhibit D 1
Attachment B - Amendment No. 1 to Onward Project Participation and Share Agreement
EXHIBIT D
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 a forecast of expected Monthly Capacity Payments over an entire Contract Year, divided by twelve (12). 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) O
perating Account Amount. The Operating Account Amount for each Project Participant shall be an amount equal to the Estimated Monthly Project Cost multiplied by three, 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 the Construction Start Date pursuant to Exhibit B of the ESSA, each Project Participant shall deposit into such Project Participant’s Operating Account an amount equal to that Project Participant’s Operating Account Amount. (c) Us e 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 ESSA, 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 costs and obligations of CCP under the ESSA, any amounts then remaining in any Project Participant’s Operating Account shall be paid to the associated Project Participant.
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement AMENDMENT NO. 1 TO
ORGP LLP GEOTHERMAL PORTFOLIO
PROJECT PARTICIPATION SHARE AGREEMENT
-1-
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
among
CENTRAL COAST COMMUNITY ENERGY
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement AMENDMENT NO. 1 TO
ORGP LLP GEOTHERMAL PORTFOLIO
PROJECT PARTICIPATION SHARE AGREEMENT
-2-
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. Recitals. The Recitals stated above are true and correct and are incorporated by this reference into this Amendment No. 1.
2. C apitalized Terms. All capitalized terms used herein, which are not defined herein, shall have the meanings ascribed thereto in the PPSA, as amended hereby.
3. A mendments 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. Article 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. Article 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.
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Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
d. Article 1 Definition of “Project Committee” is hereby deleted. e. Article 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. Article 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 Share 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. No Other Changes. Except 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. C ounterparts . This 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.
[Signatures appear on following page.]
-4-
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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:
-5-
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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:
-6-
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
Sonoma Clean Power Valley Clean Energy
By:
By:
Name:
Title:
Name:
Title:
Approved as to form by Counsel
Approved as to form by Counsel
By:
By:
Name:
Title:
Name:
Title:
Exhibit A 1
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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 necessary 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) Adoption 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) The 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 o f 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 Contract 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 costs, 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 Exhibit A 2
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
and the CCP Board shall cause copies of such adopted Amended Annual Budget to be delivered to each Project Participant.
(iii) Reports. CCP will prepare and issue to Project Participants the following reports each quarter of a year during the Term:
(A) Financial 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) Records 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 ma nner 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) I
nformation Sharing. Upon CCP’s request, each Project Participant agr ees to coordinate with CCP to provide such information, documentation, and certifications that are reasonably necessary 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) Deposit 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 and 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. CCP 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 Exhibit A 3
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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) sha ll 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) Uncontrollable 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 cessation 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. Within 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) C ommercial General 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) E
mployer’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) W
orkers’ Compensation Insurance . CCP, if it has employees, shall also maintain at all times during the Term workers’ compensation and employers’ liability insurance coverage in accordance with s tatutory amounts, with employer’s liability limits of not less than One Million Dollars ($1,000,000.00) for each accident, injury, or illness; and include a blanket waiver of subrogation.
Exhibit A 4
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
(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 Insu rance. 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) pe r 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) Dispute 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. T he CCP Board shall have the authority to review, modify, and approve, as appropriate, all amendments, modifications, and supplements to the PPA. (iii) C apital Improvements . The CCP Board shall review, modify, and approve, if appropriate, all Capital Improvements undertaken with respect to the Project and all financing arrangements for such Capital Improvements. The CCP Board shall approve those Exhibit A 5
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
budgets or other provisions for the payments associated with the Project and the financing for any development associated with the Project.
(iv) [Reserved].
(v) Budgeting. 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. The 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) A ssignment by Project 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. The 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) C
hange of Control. The 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. The 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) O
ther 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) P
eriodic Audits . The 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. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.4(f) of this Exhibit A 6
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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) Quorum. A quorum shall consist of a majority of the CCP Board members that represent Project Participants.
(ii) V oting. 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.
Exhibit B 1
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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 Manager is directed to do the following:
(a) Consult 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.
by the PPA.
(f) Provide the Project Developer with Financial Statements as may be required
(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 PPA and participate in any associated meetings with Project Developer to discuss construction progress. If Project Developer provides a Progress Report to CCP, the CCP Exhibit B 2
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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 measures 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) Budgeting. Recommend each proposed Annual Budget and proposed Amended Annual Budget for submission to the CCP Board for final approval.
(b) Early Termination of PPA . Recommend to the CCP Board regarding an early termination of the PPA pursuant to Section 13.3 of the PPA.
(c) Assignment by Project Developer. Recommend to the CCP Board any proposed assignment by Project Developer pursuant to Section 14.7 of the PPA.
(d) Buyer Financing Assignment. Recommend to the CCP Board regarding an assignment by CCP to a financing entity.
(e) Change of Control. Recommend 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 to 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 to 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.
Exhibit B 3
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
(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 associ ated 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 and 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) The approval or disapproval of any specifications, vendors’ proposals, bid evaluations, or any related matters with respect to the Project.
Exhibit B 4
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
(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. Subcommittees. 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 Exhibit B 5
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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. Delegation. 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.
Attachment C - Amendment No. 1 to Ormat Project Participation and Share Agreement
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) O
perating 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 Participant’s Operating Account an a mount 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 costs 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.
Exhibit C 1
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
CENTRAL COAST COMMUNITY ENERGY
and
CITY AND COUNTY OF SAN FRANCISCO, ACTING BY AND THROUGH ITS PUBLIC
UTILITIES COMMISSION CLEANPOWERSF
and
PENINSULA CLEAN ENERGY
and
REDWOOD COAST ENERGY AUTHORITY
and
CITY OF SAN JOSÉ, ADMINISTRATOR OF SAN JOSÉ CLEAN ENERGY
and
SILICON VALLEY CLEAN ENERGY
and
SONOMA CLEAN POWER
and
VALLEY CLEAN ENERGY
and
CALIFORNIA COMMUNITY POWER
AMENDMENT NO. 1 TO
FISH LAKE GEOTHERMAL
PROJECT PARTICIPATION SHARE AGREEMENT
among
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Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
AMENDMENT NO. 1 TO
FISH LAKE GEOTHERMAL
PROJECT PARTICIPATION SHARE AGREEMENT
This AMENDMENT NO. 1 to FISH LAKE GEOTHERMAL 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, 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, a California joint powers authority, Sonoma Clean Power, a California joint powers authority, and Valley Clean Energy, a California joint powers authority (each individually a “Project Participant” and collectively referred to as the “Project Participants”) and California Community Power (“CCP”), 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 Fish Lake Geothermal 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. Recitals. The Recitals stated above are true and correct and are incorporated by this reference into this Amendment No. 1.
2. C apitalized Terms. All capitalized terms used herein, which are not defined herein, shall have the meanings ascribed thereto in the PPSA, as amended hereby.
3. A mendments 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. Article 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. Article 1 Definition of “CCP Manager” is hereby deleted and replaced with the following language: “CCP Manager” means the General Manager of California Community Power -2-
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
or any person who is designated by the CCP Board to act in the capacity of the General Manager.
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. Article 1 Definition of “Shared Facilities Agreements” is hereby deleted and replaced w
ith the following language: “ Shared Facilities Agreements” has the meaning set forth in Section 6.3 of the PPA.
g. Article 5 is hereby deleted and replaced with the language contained in Exhibit A of this Amendment.
h. Article 6 is hereby deleted and replaced with the language contained in Exhibit B of this Amendment.
i. Article 8 is hereby deleted and replaced with the language contained in Exhibit C of this Amendment.
j. 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.”
k. Exhibit C Section (a)(i)(A) “Establish Entitlement Share Reduction Compensation Amount” is hereby amended by deleting all reference to the “Project Committee” and replacing it with “Project Participants.”
l. 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.”
m. Exhibit C Section (a)(i)(B)(e) is hereby amended by deleting “and upon approval of such transfer by the Project Committee,.”
n. Exhibit D of the PPSA is here by deleted.
4. No Other Changes. Except 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 PPSA as amended by this Amendment.
5. Counterparts. This 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.
[Signatures appear on following page.]
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Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
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:
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Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
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:
-5-
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
Sonoma Clean Power Valley Clean Energy
By:
By:
Name:
Title:
Name:
Title:
Approved as to form by Counsel
Approved as to form by Counsel
By:
By:
Name:
Title:
Name:
Title:
Exhibit A 1
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
EXHIBIT A
ARTICLE 5
OBLIGATIONS OF CCP AND ROLE OF CCP BOARD
5.1. Obligations of CCP.
(a) CCP shall take such commercially reasonable actions or implement such commercially reasonable measures as may be necessary 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) Adoption 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) The 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 th e 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 Contract 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 costs, 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 Exhibit A 2
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
and the CCP Board shall cause copies of such adopted Amended Annual Budget to be delivered to each Project Participant.
(iii) Reports. CCP will prepare and issue to Project Participants the following reports each quarter of a year during the Term:
(A) Financial 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) Records 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. Upon CCP’s request, each Project Participant agrees to coordinate with CCP to provide such information, documentation, and certifications that are reasonably necessary 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) Deposit 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) L
iquidated and 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 Daily Delay Damages, RA Deficiency Amount, Capacity Damages, Guaranteed Energy Production Damages, Damage Payment, and Termination Payment.
(i) Environmental Attributes. CCP shall take such actions or implement such measures as may be necessary to facilitate the transfer of Environmental Attributes from the Project Developer to the Project Participants.
Exhibit A 3
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
(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 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) sha ll 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) Uncontrollable 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 cessation 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 Projec t 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. Within 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) C ommercial General 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) E
mployer’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) W
orkers’ Compensation Insurance . CCP, if it has employees, shall also maintain at all times during the Term workers’ compensation and employers’ liability insurance coverage in acco rdance 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 include a blanket waiver of subrogation.
Exhibit A 4
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
(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) Dispute 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 Facility, and CCP’s rights and interests in the Facility.
(ii) PPA. T he CCP Board shall have the authority to review, modify, and approve, as appropriate, all amendments, modifications, and supplements to the PPA. (iii) C apital Improvements . The CCP Board shall review, modify, and approve, if appropriate, all Capital Improvements undertaken with respect to the Project and all financing arrangements for such Capital Improvements. The CCP Board shall approve those Exhibit A 5
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
budgets or other provisions for the payments associated with the Project and the financing for any development associated with the Project.
(iv) [Reserved].
(v) Budgeting. Upon the submission of a proposed Annual Budget or proposed Amended 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. The 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 11.2 of the PPA. (vii) A
ssignment by Project 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 14.1 of the PPA other than any assignment pursuant to Sections 14.2 or 14.3 of the PPA. (viii) B uyer Financing Assignment. The 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. The 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 14.1 of the PPA.
(x) Supervening Authority of the Board. The 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. The 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.
Exhibit A 6
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
(xiii) Compliance Expenditures. The CCP Board shall review, modify, and approve the recommendations of the CCP Manager, made pursuant to Section 6.2(f) of this Agreement, as to Compliance Expenditures, as specified in Section 3.12(c), (d), and (e) 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) Quorum. A quorum shall consist of a majority of the CCP Board members that represent Project Participants.
(ii) V oting. 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.
Exhibit B 1
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
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 Manager is directed to do the following:
(a) Consult 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.
by the PPA.
(f) Provide the Project Developer with Financial Statements as may be required
(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 P roject 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 18.2 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 2.3 of the PPA and participate in any associated meetings with Project Developer to discuss construction progress. If Project Developer provides a Progress Report to CCP, the CCP Exhibit B 2
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
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 measures 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.
6.2. CCP Manager Recommendations to the CCP Board.
(a) Budgeting. Recommend each proposed Annual Budget and proposed Amended Annual Budget for submission to the CCP Board for final approval. (b) E arly Termination of PPA . Recommend to the CCP Board an early termination of the PPA pursuant to Section 11.2 of the PPA. (c) A ssignm ent by Project Developer. Recommend to the CCP Board any proposed assignment by Project Developer pursuant to Section 14.1 of the PPA other than any assignment pursuant to Sections 14.2 or 14.3 of the PPA.
(d) Buyer Financing Assignment. Recommend to the CCP Board an assignment by CCP to a financing entity.
(e) Change of Control. Recommend to the CCP Board any Change of Control requiring CCP’s consent, as specified in Section 14.1 of the PPA.
(f) Compliance Expenditures. Recommend to the CCP Board any Compliance Expenditures, as specified in Section 3.12(c), (d), and (e) of the PPA.
6.3. CCP Manager Report to CCP Board on Actions relating to 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.
(a) Any recommendations made by the CCP Manager to the Project Developer on the design of the Project.
(b) Confirmation by the CCP Manager that the requirements of Exhibit B of the PPA have been satisfied, such that the Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date has been extended.
Exhibit B 3
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
(c) Any exercise of CCP’s rights under the PPA upon the occurrence of an Event of Default has occurred under Section 11.1 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 Facility and the scheduling, handling, tagging, dispatching, and crediting of the Product, the handling and crediting of Environmental Attributes associated with the Facility and the control and use of the Facility.
(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 Facility. (f) The approval or other action relating to the form or content of any written statistical, administrative, or operational reports, Facility -related data and technical information, facility 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 Project Developer, experts, consultants or others. (g) The approval or modification 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 Facility. (h) The approval or modification 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 Performance 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 Facility.
(j) Any recommendations made by the CCP Manger 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 Facility).
(k) The approval or disapproval of any specifications, vendors’ proposals, bid evaluations, or any related matters with respect to the Facility.
(l) The approval of any Remedial Action Plan submitted by Project Developer to CCP pursuant to Section 2.4 of the PPA.
(m) The approval of the submission of the written acknowledgement of the Commercial Operation Date in accordance with Section 2.2 of the PPA.
Exhibit B 4
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
(n) The approval of the return of the Development Security to Project Developer in accordance with Section 8.8 of the PPA.
(o) The approval of the return of any unused Performance Security to Project Developer in accordance with Section 8.9 of the PPA.
(p) The collection of any liquidated damages owed by Project Developer to CCP under the PPA, or any draw upon the Development Security or Performance Security.
(q) Any dispute by CCP of an invoice pursuant to Section 8.5 of the PPA. (r) The approval of the return of the CP Security to Project Developer in accordance with Section 8.7 of the PPA.
(s) The approval of the submission of the Pseudo- tie Participating Generator Agreement in accordance with Section 2.2(b) of the PPA. (t) The approval of the submission of the Meter Ser vice Agreement in accordance with Section 2.2(c) of the PPA.
(u) The approval of the submission of the Interconnection Agreement in accordance with Section 2.2(d) of the PPA.
(v) Confirmation by the CCP Manager that Project Developer has secured the required Firm Transmission Rights in accordance with Section 2.2(f) of the PPA. (w) Confirmation by the CCP Manager that Project Developer has received CEC Precertification for the Facility in accordance with Section 2.2(g) of the PPA. (x) Any direction to the Project Developer to submit a Green- e® Energy Tracking Attestation Form the Product delivered under the PPA to the Center for Resource Solutions pursuant to Section 4.10 of the PPA.
(y) Any direction to the Project Developer to change the Negative LMP Strike Price in pursuant to subdivisions (e) of Exhibit C of the PPA.
6.4. Subcommittees. 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.
(a) Project Participant Expenses. Any expenses incurred by any representative of any Project Participant or group of Project Participants serving on any subcommittee in connection 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.
Exhibit B 5
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
6.5. Delegation. 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.
Attachment D - Amendment No. 1 to OME Project Participation and Share Agreement
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 O perating 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) O
perating 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 the Construction Start Date pursuant to Exhibit B of the PPA, the Effective Date, each Project Participant shall deposit into such Project Participant’s Operating Account an amount equal to that Project Participant’s Operating Account Amount. (c) Us
e 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 costs and obligations of CCP under the PPA, any amounts then remaining in any Project Participant’s Operating A ccount shall be paid to the associated Project Participant.
Exhibit C 1