Contract No. 10157 (CCS)
3 PHASES RENEWABLES
ELECTRICITY SUPPLY ENABLING AGREEMENT
- sept.
THIS ELECTRICITY SUPPLY ENABLING AGREEMENT ("Agreement") is made and entered into this /Shday of July, 2015 (the "Execution Date"), by and between 3 Phases Renewables, Inc. a California Corporation with a place of business located at 1228 E Grand Ave, El Segundo, CA 90245 (hereinafter referred to "3 Phases" or "Seller") and the City of Santa Monica, with a place of business at 1717 4" Street, Santa Monica, CA 90401 (hereinafter referred to as "Customer" or "City").
WHEREAS, 3 Phases is a registered CUC renewable Electric Service Provider in California, registration number 1373.
WHEREAS, Customer's California facilities listed in the applicable Appendix to the Addendum (the substantive form of which is attached herein as Exhibit B), are qualified Direct Access customers (hereinafter referred to as "Customer's California Facilities").
WHEREAS, the City of Santa Monica has prequalified vendors to provide renewable energy to the City through Direct Access, and 3 Phases is one of the prequalified vendors.
WHEREAS, Customer desires to purchase renewable energy from its prequalified vendors pursuant to transactions memorialized by an addendum entitled "Electric Purchase Transaction Confirmation" setting forth the price per transaction.
WHEREAS, 3 Phases agrees to sell electricity to the City for the term of this Agreement to Customer.
WHEREAS, 3 Phases and Customer hereby enter into this master enabling Agreement setting forth the terms and conditions with respect to any prospective transaction during the term of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, and covenants contained in this Agreement, and other valuable consideration, the parties hereto and intending to be legally bound hereby, agree as follows:
A. Scope of Agreement.
1. Transactions. From time to time, the parties may enter into one or more transactions for the purchase of renewable energy. The price per transaction will be proposed by 3 Phases to the City and the City may elect, in its discretion, whether or not to accept such proposed price per transaction and is not obligated to do so. Transactions will be entered into by the execution of an addendum entitled "Electric Purchase Transaction Confirmation," the substantive form of which is attached herein as Exhibit A (each, an "Addendum"). Each Addendum is incorporated herein by reference and the terms of this Agreement are deemed to be repeated in each Addendum.
2. Supply. Upon the execution of an applicable Addendum and in accordance with the terms therein, 3 Phases shall sell and deliver, or cause a third party to deliver, and Customer shall purchase and receive electrical energy (the "Electricity") for Customer's California Facilities. 3 Phases will process all applicable paperwork with Utility on behalf of Customer upon execution of this Agreement.
3. Term. This Agreement shall commence on the Execution Date ("the Commencement Date") and shall continue for a period of five calendar years thereafter ("the Termination Date"), unless earlier terminated by the parties for cause or for convenience in accordance with the notice provisions set forth herein.
3.1. Term of Individual Transaction(s). The term of each transaction shall be governed by the terms of the applicable Addendum. In the event of a termination of this Agreement, this Agreement shall remain in effect with respect to the Addendums) entered into prior to such termination until both parties have fulfilled all of their obligations with respect to such Addendums or such Addendums have each been terminated under the terms of this Agreement.
3.2. Survival of Obligations. All obligations of the parties which, by their nature, are intended to survive this Agreement shall so survive.
4. Product and Quantity. During the term of this Agreement, 3 Phases agrees to sell to Customer and Customer agrees to purchase from 3 Phases such quantity of Electricity as set forth in an applicable Addendum. 3 Phases will provide renewable electricity as required by California's Renewable Portfolio Standards ("RPS"). The renewable mix of electricity may change during the duration of each Addendum; however, 3 Phases will provide a minimum of 100% renewable power at all times, unless otherwise expressly specified in an applicable Addendum.
B. Price and Payments.
1. Electricity Price and Payment Terms. The price that Customer pays to 3 Phases for the Electricity and the applicable payment terms shall be set forth in each Addendum to this Agreement (the "Contract Price"). The terms of any other fees associated with the procurement and delivery of electricity to serve Customer's load shall also be set forth in each Addendum.
2. Taxes and Fees. Any applicable taxes will be applied for the sale of this product, to appear on Customer's electric service bills from the utility and 3 Phases.
Additionally, in the event that a meter needs to be replaced, the cost of the meter will be passed through to the Customer.
3. Monthly Payments. The Customer acknowledges and agrees that it shall continue to receive a monthly service bill from its local utility (the "Utility"). Such monthly service bill will include cost of transmission and any and all utility charges and legislatively-mandated charges in connection with the delivery of the 2 Electricity. Customer agrees to continue to make payments directly to the Utility and to comply with any existing Utility company requirements. Customer acknowledges and agrees that 3 Phases' charges for the Electricity will be included in the Utility's bill and will be due according to the Utility's invoice due date. In the event that Customer does not pay its monthly service bill within 30 days of its due date, Customer shall be considered in Default and 3 Phases may terminate this Agreement after notice and Customer's failure to cure.
C. Material Changes.
1. Load Modifications. In the event that Customer intends to make any changes to its current operations which would materially change its consumption of Electricity ("Load Modifications"), Customer agrees to notify 3 Phases in writing of such Load Modifications at least thirty (30) days prior to such Load Modifications becoming effective. For the purposes of this Agreement, a material change in consumption of Electricity is defined as any planned change that would increase or decrease Customer's peak or off-peak net Electricity consumption by more than 50% for ten (10) or more days within a one month period. In the event That has often on that a Load Modification occurs, and no notice of such Load Modification was given by the Customer to 3 Phases, 3 Phases may adjust the Contract Price, but only to the extent the adjustment reflects 3 Phases' actual incremental costs. For purposes of this Agreement, "actual incremental costs" are defined as the delta between Customer's peak or off-peak consumption prior to the relevant Load Modification period and Customer's peak or off-peak consumption during the relevant Load Modification time period multiplied by the delta between the Contract Price as defined in Paragraph 3.1 and the real-time SP-15 Index Price.
Load Modifications shall include changes in net Electricity consumption due to any and all generation changes at any of the Customer's Onsite Energy Projects, including the installation of new Customer Onsite Energy Projects.
2. Change in Law. In the event that a change in any applicable federal, state, or local law, rule or regulation occurs that results in additional costs to 3 Phases in connection with this Agreement, 3 Phases may, upon notice to the Customer, adjust the Contract Price to reflect 3 Phases' actual incremental costs (and/or savings, as the case may be associated with such changes. Changes in the law may include, but are not limited to those that: a) re-define or alter the congestion zone(s) where Customer's California Facilities are located or b) alter the CAISO market structure or protocol design.
3. Change to Project List. In the event that Customer intends to make any changes to its current Project List (described below in Section D(2)), Customer agrees to notify 3 Phases in writing of such changes at least thirty (30) days prior to such changes becoming effective.
D. On-site Generation.
1. Net Metering. During the Term of this Agreement the Customer may have onsite electricity generation at one or more of Customer's California Facilities 3 ("Customer's Onsite Energy Project"). In such event, the terms of this Section shall apply. Customer's Onsite Energy Project may in any given hour, pursuant to the terms of its grid interconnection agreement, generate more electricity than the electric load at the Customer's California Facility where it is located (hereinafter referred to as "Exported Power"). In such case, 3 Phases will provide a credit for the Exported Power at the same rate as the Electricity Rate (the "Credit Rate"). The Parties agree that the Electricity Rate and Credit Rate take into account the estimated quantity and time of day of the Exported Power. When applying any credit for Exported Power to Customer's invoice, the following rules shall apply:
i. If the Exported Power multiplied by the Credit Rate (the "Credit"), exceeds the Facility electric load multiplied by the Electricity Price (the "Facility Price") in any billing period, the Credit shall be applied to the total amount owed by Customer for electricity at Customer's California Facilities in the applicable billing period.
ii. In the rare event that the total Exported Power in any calendar year exceeds the total electric load for all of Customer's California Facility in the same calendar year, Customer will be compensated for the remaining net exported power based on a "Wholesale Electric Rate." The Wholesale Electric Rate shall be the average real-time electricity rate at the California ISO, SP15 hub, between the hours of 7:00am and 5:00pm for the corresponding calendar year.
2. Project List. Prior to the commencement of each and every Electricity Purchase Transaction Confirmations, the Customer shall provide to 3 Phases an updated full and complete list of all Customer's Onsite Energy Projects, which shall include the generation technology, the nameplate capacity, and the facility address (the "Project List"). Customer agrees to keep the Project List updated as necessary per the terms of Section C, above.
E. Representations and Warranties.
1. Each party represents and warrants to the other that:
i. It is validly existing and in good standing in the jurisdiction of its formation;
ii. The execution, delivery, and performance of this Agreement and each Addendum are within its power, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents or any agreements to thwich it is a party or any applicable law;
ili. It has not filed, does not plan to file, nor has it had filed against it, any bankruptcy proceeding;
iv. This Agreement and each Addendum constitutes its legally valid and binding obligation enforceable against it in accordance with its terms (subject to any equitable defenses);
4 v. It is not a party or subject to any agreement that may restrict or interfere with the delivery or receipt of the Electricity under this Agreement; vi. It shall be solely responsible for retaining adequate advisors and counsel to advise it with respect to the obligations assumed hereunder regardless of any information provided by the other party;
vii. It has knowledge and experience in business matters sufficient to enable it to evaluate the risks associated with this Agreement and this Agreement is entered into by each party at its sole election and in the exercise of its independent judgment without duress, and it is not relying on any representations of the other party other than those expressly set forth herein.
F. Delivery of the Electricity.
1. Utility Delivery. Customer acknowledges and agrees that, during the Term of this Agreement, the Utility maintains sole responsible for the reliable delivery of the Electricity to the Customer's meter.
2. Power Outage. In the event of a power outage, Customer understands that it is solely responsible for contacting the Utility for appropriate and timely services, for which they will be billed by the latter.
G. Default and Termination.
1. Default and Termination. If either party fails or refuses to perform any of the provisions of this Agreement or any executed Addendum, the nonbreaching party shall give written notice of default ("Notice of Default") to the breaching party in accordance with the notice provisions set forth in Section 9 of this Agreement. The written Notice of Default shall specify the nature of the default, the remedial actions necessary to cure the default, and a reasonable time period after receipt of the Notice of Default to cure. If the default is not cured within the cure period, the nonbreaching party may terminate the master enabling Agreement and Addendum, in writing, effective on the date of termination.
A. Calculation of Damages for Breach by Customer. In the event that Customer breaches this Agreement, it is agreed that the damage of 3 Phases shall include the reasonable cost of reselling the power. Reasonable cost of reselling shall be defined as the difference between the sale price under this Agreement and the market price if the market price is lower than the sale price and zero if the market price is higher than sale price
B. Calculation of Damages for Breach by 3 Phases. In the event that 3 Phases breaches this Agreement, the Customer shall be entitled to its "direct damages" as further specified in Section H(1) and (2) below.
2. Termination for Convenience. Either party may, at its sole discretion and without cause, terminate this master enabling Agreement upon forty-five (45) day written notice or other date as mutually agreed upon by the parties. Any termination shall be 5 subject to Section A(3.1) re Term of Individual Transactions) and Section A(3.2) re Survival of Obligations.
H. Disclaimer and Limitation of Liability.
1. 3 Phases' liability for the breach of terms of this Agreement shall be no greater than Customers' "direct damages". "Direct damages" shall equal the difference between the price paid by Customer to a third party and the price payable by Customer to 3 Phases under this Agreement less any expenses saved in consequence of 3 Phases' breach, provided that the purchase of services is made in good faith and in a commercially reasonable manner. If 3 Phases does not use commercially reasonable efforts in finding a replacement provider of electricity, direct damages shall also include the Customer's reasonably costs associated with Customer's restoration of "direct access" status.
2. In the event that 3 Phases is unable to supply electricity, 3 Phases shall use its best reasonable efforts to assist in finding a replacement provider of electricity, so that Customer does not lose its "direct access" status.
3. 3 Phases shall not be liable for any indirect, incidental, consequential, punitive or exemplary damages, whether in contract or in tort, including but not limited to lost profits, lost revenues, business interruption or claims of third parties.
4. 3 Phases assumes no liability or responsibility for losses or consequential damages arising from the following items associated with local utility company:
operations and maintenance of system, any interruption of service, termination of service, or deterioration of service. 3 Phases explicitly disclaims responsibility or liability for losses arising from any in-home or building wiring damages.
5. Customer acknowledges that 3 Phases is not an agent of the Utility, and that 3 Phases is not liable for any of the utility company's acts, omissions, or representations.
6. 3 PHASES DOES NOT GIVE ANY WARRANTY REGARDING THE SALE,
PURCHASE OR DELIVERY OF RENEWABLE ENERGY, WHETHER
EXPRESS, IMPLIED, OR STATUTORY, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT. 3 PHASES DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND 3 PHASES SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS OF RENEWABLE ENERGY FOR A PARTICULAR PURPOSE OR USE. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
ARE OBLIGATIONS OF THE PARTIES ONLY, AND NO RECOURSE
SHALL BE AVAILABLE AGAINST ANY EMPLOYEE, OFFICER,
DIRECTOR, SHAREHOLDER, MEMBER, PARTNER, OR AFFILIATE OF A
PARTY FOR A PARTY'S FAILURE TO MEET ITS OBLIGATIONS
HEREUNDER, UNELSS SPECIFICALLY PROVIDED IN A SEPARATE
AGREEMENT.
I. Redress of Complaints.
1. Disputes arising from billing or distribution services from local electric utility may be filed with the California Public Utilities Commission (CPUC), pursuant to conditions set forth in Rule 9 of CUC's Rules of Practice and Procedures.
2. Billing-related or service-related disputes with 3 Phases may be filed as above, with CPUC
3. Disputes with 3 Phases not relating to rates, charges, or terms and conditions of service may be filed with the CPUC or by filing a complaint against 3 Phases in civil court.
4. Filings with CPUC against utilities or ESPs cannot result in disconnection of service provided that disputed amount is deposited in an escrow account. For questions regarding the CPUC complaint procedures, contact the Consumer Affairs Branch (CAB) of the CPUC at 800-649-7570.
J. Miscellaneous.
1. Entire Agreement. The terms and conditions set forth in this Agreement constitute the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements between the parties with respect to the subject matter hereof.
2. Force Majeure. 3 Phases shall not be liable in any respect for failure or delay in the fulfillment or performance of this Agreement that are outside of its control, including but not limited to, the obligation to make deliveries, if performance is hindered or prevented, directly or indirectly by war, riots, embargo, national emergency, shortage or inability to obtain transportation or transfer facilities, plant breakdown, inability to secure fuel, power, material or labor, fire, flood, windstorm or other acts of God; strikes, lockouts, or other labor disturbances (whether among employees, of 3 Phases, 3 Phases suppliers, or other); delays, failure, and/or refusal of suppliers to supply materials; orders or acts of any government or governmental agency or authority (explicitly inclusive of any measures adopted by any state or federal agency or authority or any quasi- government entity or authority or any government-appointed entity or authority affecting energy policy and any measures adopted by the utility; or any other cause of like or different kind beyond 3 Phases' reasonable control, and which by the exercise of reasonable diligence 3 Phases is unable to prevent; it being understood, however, that 3 Phases shall be under no obligation to settle strikes, lockouts or other disputes and that 3 Phases shall have no obligation to supply electricity to Customer from any other power sources referenced herein (collectively " Force Majeure"). In the event that 3 Phases is unable to supply its total requirements to Customer under this Agreement resulting from any Force Majeure, then 3 Phases may allocate any existing or available supply in a manner determined by 3 Phases to be fair and equitable, and 3 Phases shall use its best efforts to assist Customer in finding a replacement provider of electricity so that Customer does not lose its 'direct access' status. Force Majeure excludes any labor disputes among 3 Phases employees.
7 3. Waiver, Amendment. None of the terms or conditions of this Agreement may be amended or waived except by a writing signed by the parties. The parties agree that no waiver, amendment, or modification of this Agreement shall be established by conduct, custom, or course of dealing. The failure by any party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same.
4. Conflict in Agreement. No terms or conditions in the Utility's billing statement which conflict or are inconsistent with the terms and conditions in this Agreement or which increase 3 Phases' obligations hereunder shall be binding on 3 Phases unless accepted in writing by 3 Phases. In the event of any conflict between this Agreement and any Addendum, the terms of this Agreement shall govern.
5. Assignability. The rights and obligations of each party under this Agreement may be acquired, pledged or assigned as by such party subject to notice and approval by the other party, which shall not be unreasonably withheld.
6. Severability. If any part of this Agreement is found to be void or unenforceable, the provisions shall be severable and those provisions which are lawful shall remain in full force and effect.
7. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. Any dispute under this Agreement shall be resolved in the State or Federal Courts in Los Angeles County in the State of California.
8. Attorneys' Fees. In the event that an action, suit or other proceeding is brought ot enforce or interpret this Agreement or any part hereof or the rights or obligations of any party to this Agreement, the prevailing party will be entitled to recover from other party reasonable attorneys fees and direct out-of-pocket costa and disbursements associated with the dispute that are reasonably incurred by the prevailing party.
9. Notices. Notices given hereunder shall be in writing and delivered personally or sent by overnight courier to the address noted as the place of business below or as either party may hereafter furnish in writing to the other party.
Notice to 3 Phases shall be made to:
3 Phases Renewables
Attn: Michael Mazur PE MBA
1228 E Grand Ave
El Segundo, CA 90245
Notice to Customer shall be made to:
Santa Monica Office of Sustainability and the Environment 1717 4* Street, Suite 100
8 Santa Monica, California 90401
Attention: Dean Kubani, Sustainability Manager
and
Santa Monica Finance Department, Procurement
1717 4* Street, Suite 150
Santa Monica, California 90401
Attention: Araceli Esparza, Purchasing Manager
with a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: Marsha Jones Moutrie, City Attorney
Overnight courier notices shall be deemed to be received one day after the date on which the notice is timely delivered to the courier.
10. Confidentiality. The parties acknowledge that the Customer is a local public entity and subject to the California Public Records Act. Neither party will voluntarily disclose, directly or indirectly to third parties, any of the terms, conditions or covenants in this Agreement, except in compliance with any foreign or federal or state law, regulation or rule, or pursuant to any judicial, legislative or administrative proceeding; provided that in the event of compliance with a proceeding the disclosing party first provide the nondisclosing party prompt notice of the mandated disclosure so as to provide the nondisclosing party sufficient time to object.
11. Headings. The headings are inserted for convenience only and shall not define or limit any of the terms or conditions hereof.
12. Insurance. Prior to commencing work, 3 Phases will procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by 3 Phases or 3 Phases' agents, representatives, employees or subconsultants for the duration of this Agreement. 3 Phases must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
13. Indemnification. As to 3 Phases' Services produced under this Agreement, 3 Phases agrees to defend, indemnify, protect, and hold harmless the Customer, its agents, officers, boards and commissions, and employees (collectively, "City") from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney's fees, or payments for injury to any person or property (collectively, "Losses") caused or claimed to be caused by the acts, errors and/or omissions of 3 Phases, or 3 Phases' employees, agents, officers, and subconsultants. Notwithstanding 3 Phases' obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from 3 Phases, if City chooses to do so.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written.
CITY OF SANTA MONICA,
ATTEST: a munidipal corporation
Suauft Lich oh
By:
SARAH P. GORMAN RICK COLE
City Clerk City Manager
APPROVED AS TO FORM:
Maske me Mintui b 95.
MARSHÁ JONES MOUTRIE
City Attorney
3 Phases Renewables, Inc.
BY: MM. Mrp
Date:_
Print: MicHaeL MAZUR
Title: PRINCIPAL, CEO
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