1 CONFIRMATION LETTER
BETWEEN
NRG BUSINESS MARKETING LLC
AND
CITY OF VERNON
This confirmation letter (“Confirmation”) confirms the transaction between NRG Business Marketing LLC (“NRG”) and City of Vernon (“City of Vernon”), each individually a “Party” and together the “Parties,” dated as of July 7, 2026 (“Effective Date”). This transaction shall be governed by the WSPP Agreement effective October 31, 2025, including but not limited to Service Schedule R, as amended from time to time (the “WSPP Agreement”). If there is any conflict between the terms set forth in this Confirmation and the WSPP Agreement, the terms set forth in this Confirmation shall govern. The WSPP Agreement, supplemented by this Confirmation (collectively, the “Agreement”), constitutes the complete and final agreement between the Parties concerning the purchase and sale of the Product. For greater clarity, references to Service Schedule R appear, for example, as “Section R-2.3.2”. Additional definitions are included under the Definitions section below. §1 Purchaser/Buyer City of Vernon
§2 Seller NRG Business Marketing LLC
§3 Broker N/A
§4 Product
Other (specify): Firm Project Energy and, if applicable, Flexible Product (as defined below) Project Energy, in each case bundled with the associated Renewable Energy Credits (“RECs”) delivered on an hourly, sub-hourly or real time basis, without substituting energy from another source to the Delivery Points (“PCC 1 Product”) California Public Utilities Code Section 399.16(b)(1) and Section 3203 (a)(1) of the CEC’s Enforcement Procedures for the Renewables Portfolio Standard for Local Publicly Owned Electric Utilities, as adopted by the California Energy Commission on December 22, 2020 and effective on July 12, 2021 (“PCC1 Product”). The Product does not include any other non-Green Attributes (e.g., ancillary services or resource adequacy capacity).
Portfolio Content Category 1
□ Firm REC
□ Firm Bundled REC
□ Resource Contingent REC
□ Resource Contingent Bundled REC
□ Facility As-Run REC
□ Facility As-Run Bundled REC
□ Firm Bundled REC + Resource Contingent Bundled REC
2 Project Energy and the associated RECs may be generated from the Generation Facilities listed below in Appendix A.
§5 Applicable
Program State of California Renewables Portfolio Standard Program §6 WREGIS
Certificate
Transfer Date
Seller shall transfer WREGIS Certificates for the PCC1 Product from its WREGIS account to Purchaser’s WREGIS account no later than May 15th following the end of each Generation Period. Upon receiving written or electronic confirmation from WREGIS that a transfer order has been initiated by Seller, Buyer shall confirm such transfer order in WREGIS within fourteen (14) days after such notice. Upon either Party’s receipt of notice from WREGIS that a transfer of WREGIS Certificates was not recognized, that Party will promptly notify the other Party, providing a copy of such notice, and both Parties will cooperate in taking such actions as are necessary and commercially reasonable to cause such transfer to be recognized and completed.
§7 Generation
Period
The generation period for Project Energy begins on January 1 of the relevant year specified below and continues through the date that all Project Energy transacted under this Confirmation has been delivered in accordance with this Confirmation, but in any case no later than December 31 of the relevant year as detailed below (the “Generation Period”).
Calendar Year Generation Period
2028 January 1, 2028 – December 31, 2028
2029 January 1, 2029 – December 31, 2029
2030 January 1, 2030 – December 31, 2030
2031 January 1, 2031 – December 31, 2031
2032 January 1, 2032 – December 31, 2032
2033 January 1, 2033 – December 31, 2033
2034 January 1, 2034 – December 31, 2034
2035 January 1, 2035 – December 31, 2035
2036 January 1, 2036 – December 31, 2036
2037 January 1, 2037 – December 31, 2037
§8 Generating
Facilities:
The Product shall be produced by one or more of the energy generating facilities listed in Appendix A, each of which is: (i) certified as an ERR for the California Renewable Portfolio Standard (“RPS”) and registered with WREGIS, and (ii) from which Seller is entitled, pursuant to its agreements, to a portion of the output of the 3 Project Energy and associated RECs, and such output is used to source the Product delivered hereunder during the Delivery Term (each, a “Generating Facility” and collectively, the “Generating Facilities”). In addition, each Generating Facility has:
(i) a first point of interconnection with a California balancing authority;
(ii) its first point of interconnection with distribution facilities used to serve end users within a California balancing authority area;
(iii) its generation scheduled into a California balancing authority without substituting electricity from any other source, provided that, if another source provides real-time ancillary services required to maintain an hourly or subhourly import schedule into the California balancing authority, then only the fraction of the schedule actually generated by the Generating Facility from which the electricity is procured may count toward this Product; or
(iv) its generation is scheduled into a California balancing authority pursuant to a dynamic transfer agreement between the balancing authority where the Generating Facility is located and the California balancing authority into which the generation is scheduled.
Seller may add additional Generating Facilities to Appendix A by notice, as further provided in Appendix A.
Contemporaneous with such written notification, such generating facilities shall automatically become a Generating Facility(ies) hereunder provided that such generation facility satisfy on the clauses (i) through (iv) above. The Parties acknowledge and agree that Seller, in its sole discretion, may utilize one or more of the Generating Facility(ies) in order to satisfy its obligations hereunder. §9 Contract
Quantity
Calendar
Year
Firm
(RECs)
Flexible
Product (as
applicable)
(RECs)
2028 75,000 25,000
2029 75,000 25,000
2030 75,000 25,000
2031 75,000 25,000
2032 75,000 25,000
2033 75,000 25,000
2034 75,000 25,000
4 2035 75,000 25,000
2036 75,000 25,000
2037 75,000 25,000
Total 750,000 250,000
§10 Delivery Term The period starting on the first calendar day of the first Generation Period and ending on the last calendar day of the last Generation Period.
§11 Energy Delivery
Point
The Energy Delivery Point(s) shall be the nodes on the CAISO system where the Generating Facilities inject energy onto the CAISO system.
§12 Contract Price The Contract Price for each MWh of PCC1 Product delivered to Buyer shall consist of the Energy Price and the REC Price, calculated as follows:
Contract Price = Energy Price – CAISO Credit + REC Price Where:
“Energy Price” is the applicable day-ahead or real-time LMP at the Energy Delivery Point for the applicable Generating Facility per MWh;
“CAISO Credit” is the Energy Price received by Seller, or its designee(s) from the CAISO at the Energy Delivery Point for the Project Energy for the applicable Generating Facility; and “REC Price” is $37.00 per MWh (i.e., per REC) for the PCC1 Product conveyed to Buyer in accordance with the terms of this Confirmation.
The Contract Price for each MWh of Project Energy is the sum of (a) Energy Price minus the CAISO Credit, which shall equal zero dollars ($0.00) and (b) the REC Price. Notwithstanding anything herein to the contrary, no amount associated with the Project Energy or Energy Price shall be payable by Seller hereunder, including (without limitation) under, and notwithstanding, Section
5.2.4(b) of Schedule R, or (ii) included in the calculation of any Resale Price, Replacement Price or any Termination Payment. §13 Scheduling Seller, its seller(s) or its designee(s) will perform all scheduling and if applicable, NERC e-tagging requirements for this Transaction. All scheduling shall be performed consistent with all applicable NERC, CAISO and WECC scheduling protocols. The Project Energy shall only be sourced from a Generating Facility. Seller may schedule or cause to be scheduled the Project Energy during any or all hours in the Delivery Term.
5 For any Product that requires a NERC e-Tag (“e-Tag”), each e-Tag shall have a Generating Facility as the source of energy, sink inside California and contain the applicable Generating Facility’s CEC RPS IDs (noted in table above) on the Buyer’s Designee line of the physical path in the Miscellaneous Information field. Buyer will be copied on all e-Tags provided to Seller and all e-Tags will be matched with RECs in WREGIS before such RECs are transferred to Buyer. To the extent available to Seller, Seller shall make commercially reasonable efforts to provide necessary supporting documentation, as required by the California Public Utilities Commission and the California Energy Commission (CEC), to Buyer for purposes of supporting product eligibility claims for the PCC1 Product under California’s RPS Program – such materials may include the Hourly Meter and e-Tag Reconciliation reporting template and the Hourly e-Tag Summary reporting template, as may be applicable for certain Product.
If the source of the Project Energy is from a facility located outside of California, Seller, its seller(s) or its designee(s) shall be the electricity importer for purposes of California Global Warming Solutions Act, California Cap on Greenhouse Gas Emissions and Market-Based Compliance Mechanisms, also referred to as Capand-Trade Regulations. If the source of the Project Energy is from a facility located in California, these Scheduling provisions shall be modified to reflect such facility characteristics.
For Generating Facilities that require a NERC e-Tag, Buyer agrees, by May 15 following the end of each Calendar Year covered in the Term of this Confirmation, to provide Seller with a WREGIS event log, providing a detailed breakdown of the total quantity of WREGIS Certificates transferred under this Confirmation associated with the PCC1 Product that have been placed in a WREGIS retirement subaccount and those that remain in a WREGIS active subaccount and the name of each such account. The detailed breakdown should include REC serial numbers, vintage year and month by quantity and WREGIS Generating Unit ID, as well additional information, to the extent such information is available in WREGIS, that may be necessary for Seller to meet the California Air Resources Board Mandatory Reporting Requirements Section 95111(g)(1)(M)(3).
§14 Additional
Flexible Product
Provisions
Seller may. at its option, deliver Flexible Product, but shall have no obligation to deliver any Flexible Product unless and until the delivery of a 10/31 Notice and shall not be deemed to have failed to meet any Flexible Product delivery obligation hereunder in a Generation Period unless Seller has notified Buyer in writing on or before October 31 of such Generation Period of the Contract Quantity of any Flexible Product which Seller commits to delivering after October 31 of such Generation Period (each, a “10/31 Notice”). Buyer shall have no obligation to accept any Flexible Product after October 31 of such Generation Period if Seller has not notified Buyer of such Product in the 10/31 Notice for such Generation Period. The failure of Seller to deliver Flexible Product which Seller has not been specified by Seller in a 10/31 Notice, 6 including for avoidance of doubt any failure of any representation and warranty with respect to such Flexible Product, shall not constitute a failure or other breach by Seller under this Agreement.
Any Product delivered by Seller under this Agreement will first be allocated to the applicable “Firm” portion of Contract Quantity for that Generation Period, with any excess over such amount then allocated to the applicable Flexible Product portion of the Contract Quantity for that Generation Period.
§15 Settlement and
Payment
(a) Project Energy. Seller shall receive CAISO Credit directly from the CAISO for Project Energy delivered under this
Confirmation. Seller shall invoice, and Purchaser shall pay for, Project Energy delivered to the Delivery Points at the Energy Price less the CAISO Credit, which shall equal out to zero dollars ($0.00), pursuant to Section 9 of the WSPP Agreement. Whether invoiced or not, Seller shall be entitled to retain for its account all revenues received from CAISO associated with the delivery of Project Energy to a California balancing authority.
(b) RECs. Payments of amounts owed by Purchaser to Seller hereunder shall be due and payable after the WREGIS Certificates for the RECs have been transferred to Purchaser’s WREGIS account. Purchaser shall pay the invoice no later than ten (10) days following receipt of Seller’s invoice subsequent to the transfer of the RECs, pursuant to Section 9 of the WSPP Agreement. Buyer shall pay Seller via wire transfer in immediately available funds. §16 No Recourse to
Members of
Purchaser
N/A
§17 Collateral Pursuant to Section R-4 of Schedule R, Section 27 of the WSPP Agreement is not applicable to this Confirmation and neither Party shall have the right to request credit assurances under Section 27. §18 Governing Law Governing Law: This Agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC 17, Non-Modifiable. CPUC Decision .11-01-025] For purposes of this paragraph, “parties” means the “Parties” hereto and “this Agreement” means this Confirmation.
§19 Representations
and Warranties
Eligibility: Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that:
(i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a 7 change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC 6, Non-Modifiable. (Source: CPUC Decision 07-11-025, Attachment A.) CPUC Decision 08-04-009] For purposes of the STCs quoted in this §19, “this Agreement” means this Confirmation, “commercially reasonable efforts” for Seller is subject to the limitations below in this §19, “change in law” means “Change in Law as defined in the WSPP Agreement (as modified herein), and “Project” means the relevant Generating Facilities from which Seller elects to deliver the Product.
Transfer of Renewable Energy Credits: Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08- 028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation.
To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC REC-1, Non-modifiable. CPUC Decision 11-01-025]
Seller has the contractual rights to sell the Products required to be delivered hereunder, and Seller will not sell the Project Energy produced by the applicable Generating Facility back to the Generating Facility that produced the Project Energy, and the initial date of generation of the Project Energy will be on or after the Effective Date of this Confirmation.
Seller further represents and warrants that Seller has not sold the Product, including the RECs associated with the Product, to any other person or entity.
For the purposes of STC REC-1 and STC 6, “commercially
reasonable efforts” shall not require Seller to incur more than $10,000 (the “Compliance Cap”) in aggregate direct or indirect costs, including lost profits and out-of-pocket costs and expenses to comply with such change in law to the Applicable Program, and then only to the extent incurring such costs would be reasonably likely to achieve the desired effect. Where any other section of this Confirmation requires a Party to use “commercially reasonable efforts”, such efforts shall likewise not require Seller to expend more than $10,000 in aggregate direct or indirect costs, including lost profits and out-of-pocket costs and expenses to comply with such “commercially reasonable efforts” obligation. If Seller has met or exceeded the Compliance Cap or the Parties have not agreed to written amendments to this Confirmation within sixty (60) days after the change referred to in the preceding sentence, then in either case either Party may by giving written notice to the other terminate this Confirmation. In the event of any such termination, 8 neither Party shall have any liability to the other as a result of such termination nor any further liability or payment or performance obligations hereunder; provided, however, that the Parties shall remain liable for any payments due for, and all other obligations that may lawfully be performed respecting, delivery and receipt of Product prior to such termination.
If and to the extent that the Products sold by Seller is a resale of part or all of a contract between Seller and one or more third parties, Seller represents, warrants and covenants that the resale complies with the following conditions in (i) through (iv) below as of the Effective Date and throughout the Generation Period:
(i) The original upstream third-party contract(s) meets the criteria of California Public Utilities Code Section
399.16(b)(1) or Section 399.16(b)(2), as applicable;
(ii) This Confirmation transfers only Electric Energy and Green Attributes that have not yet been generated prior to the Effective Date;
(iii) The Project Energy delivered hereunder is transferred to the Delivery Points in real time; and
(iv) If the relevant Generating Facility has an agreement to dynamically transfer electricity to a California balancing authority, the transactions implemented under this
Confirmation are not contrary to any condition imposed
by a balancing authority participating in the dynamic
transfer arrangement.
THE EXPRESS WARRANTIES SET FORTH IN THIS
CONFIRMATION ARE THE EXCLUSIVE
REPRESENTATIONS OF SELLER, AND SELLER MAKES NO
OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WITH RESPECT TO THE PRODUCTS
DELIVERED AND TRANSFERRED OR RETIRED, WHETHER
AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR ANY OTHER MATTER.
Buyer represents and warrants to Seller continuing throughout the term of this Confirmation as follows:
(a) all acts necessary to the valid execution, delivery and performance of this Confirmation and this Agreement,
including without limitation, competitive bidding, public notice, election, referendum, or other required procedures has or will be taken and performed as required under
applicable law and Buyer’s ordinances, bylaws or other
regulations;
(b) all persons making up the governing body of Buyer are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with applicable law;
(c) entry into and performance of this Agreement and this Confirmation by Buyer are for a proper public purpose within the meaning of the laws applicable to Buyer and all other 9 relevant constitutional, organic or other governing
documents and applicable law;
(d) the term of this Agreement does not extend beyond any applicable limitation imposed by any applicable law or other relevant constitutional, organic or other governing
documents applicable to Buyer;
(e) entry into and performance of this Confirmation, this Agreement and each transaction hereunder by Buyer will
not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Buyer otherwise entitled to such exclusion; and
(f) obligations to make payments hereunder do not constitute any kind of indebtedness of Buyer or create any kind of lien on, or security interest in, any property or revenues of Buyer which, in either case, is proscribed by any provision of any relevant constitutional, organic or other governing
documents or applicable law, any order or judgment of any court or other agency of government applicable to Buyer or its assets, or any contractual restriction binding on or affecting Buyer or any of its assets.
Buyer further warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to this Agreement, this Confirmation or, if applicable, any credit support provided with respect to this Agreement from (A) suit, (B) jurisdiction of any court (provided such court is located with a venue permitted under this Confirmation), (C) relief by way of injunction, order for specific performance or recovery of property, (D) attachment of assets, or (E) execution or enforcement of any judgment.
This Section shall survive the expiration or termination of this Confirmation.
§20 RECs Tracking
Obligations
Seller shall use Western Renewable Energy Generation
Information System (WREGIS) to transfer RECs to Purchaser and conform to the definition and attributes required for compliance with the RPS, as set forth in CPUC Decision 08-08-028, and as may be modified by subsequent decision of the CPUC or by subsequent legislation, but in no event shall RECs be transferred that do not contain the California RPS Certification Number.
Tracking of RECs in WREGIS: Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract. [STC REC-2, Non-modifiable. CPUC Decision 11-01-025] For purposes of this paragraph, “the contract” means this Confirmation and the reference to delivery is the delivery of the Product under this Confirmation.
The transfer of RECs to Purchaser under WREGIS shall be deemed to transfer title to all of the Green Attributes associated with the Project Energy hereunder. If available, Seller shall match 10 RECs with e-tags in WREGIS before transferring to Purchaser. In the event a future edition of the CEC Eligibility Guidebook or WREGIS Operating Rules establishes or eliminates a delivery, matching and/or transfer process for the RECs or their attributes, such as e-tags and the WREGIS e-Tag Summary report, Seller or WREGIS otherwise changes the WREGIS Operating Rules in
effect on the Reference Date (or its application thereof) such that WREGIS Certificates cannot be transferred to Buyer as required this Confirmation, the Parties will negotiate in good faith using commercially reasonable efforts to revise or amend this Confirmation to the extent possible to enable the transfer of WREGIS Certificates to Buyer.
Purchaser’s WREGIS Account: #257 Sub-account with SCPPA Seller’s WREGIS ID: Direct Energy Business, LLC (A107)
Without limiting the rights of the Parties in circumstances involving Uncontrollable Forces as contemplated in the Agreement, if WREGIS is not available for tracking RECs for an extended period of time, the Parties will negotiate in good faith using commercially reasonable efforts to identify a replacement platform for tracking and transferring RECs and to amend this Confirmation to enable the transfer of RECs from Seller to Buyer in a manner that satisfies applicable regulatory requirements and standards.
§21 Definitions Capitalized terms not otherwise defined in this §21 shall have the meaning set forth in the WSPP Agreement unless otherwise noted herein. The following words and terms used in this Confirmation shall have the following meanings:
“Buyer Eligibility Failure” means a failure of a Product to meet or satisfy the applicable Eligibility Requirements or any element or component thereof which are in the direct control of Buyer to meet or satisfy as a result of or if caused by or attributable to an act or omission of Buyer, including use of the Product other than for satisfying its own California RPS Program compliance obligations, a failure by Buyer to accept an applicable transfer on WREGIS, to provide information and data available to Buyer (including as provided by Seller) as may be required to verify the Green Attributes comprised in the Products or failure to retire or designate for retirement the RECs for the purposes of compliance with the California RPS Program.
“CAISO Balancing Authority” means the CAISO Balancing
Authority as identified in section 3.5.1.1.1. of CPUC Decision 11-12-052.
“CAISO Tariff” means the applicable tariff and protocol provisions of the CAISO (as amended from time to time). 11 “California Balancing Authorities” means all of the California Balancing Authorities as identified in section 3.5.1.1.1 of CPUC Decision 11-12-052.
“California RPS Program” means the “California Renewables Portfolio Standard” program jointly administered by the CEC, the California Public Utilities Commission and the California Air Resources Board, as such program exists as of the Effective Date, including without limitation all applicable eligibility criteria and requirements thereof in force and effect as of the Effective Date.
"CPUC" means the California Public Utilities Commission. “E-Tag” has the meaning set forth in the CAISO Tariff.
“Eligibility Requirements” means and includes any applicable criteria or requirements of the California RPS Program in force and effect as of the Effective Date respecting the eligibility or qualification of the Product, this Confirmation or the Transaction confirmed hereby for the California RPS Program, including without limitation any eligibility criteria applicable to an out-ofstate resource. “Energy Commission” or “CEC” means the California Energy Resources Conservation and Development Commission.
“Flexible Product” means any Product that Seller, in its sole discretion, elects to deliver pursuant to §13; provided, however, in no event shall the quantity of such Flexible Product delivered hereunder during a given Generation Period exceed the quantity specified for “Flexible Product” in §9 for such Generation Period. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the applicable Generating Facility, and its avoided emission of pollutants.
Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emission of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other
pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons,
perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tag Reporting Rights are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s discretion, and include without limitation those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program. Green Tags are accumulated on a 12 MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Project Energy. Green
Attributes do not include (i) any energy, capacity, reliability or other power attributes from the applicable Generating Facility, (ii) production tax credits associated with the construction or operation of the applicable Generating Facility and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the applicable Generating Facility for compliance with local, state, or federal operating and/or air quality permits. If the applicable Generating Facility is a biomass or biogas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction
benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the applicable Generating Facility. [STC 2] “Green Tag” and “Green Tag Reporting Rights” have the
meanings set forth in the definition of “Green Attributes”, and for the purposes of this Transaction, “Green Tag Purchaser” means Purchaser.
“Mandatory Reporting Rule” means the regulations entitled Mandatory Greenhouse Gas Emissions Reporting set forth at Article 2 of Subchapter 10 of Title 17 of the California Code of Regulations.
“Reference Date” means the later of the dates a Party executed this Confirmation (as reflected on the signature page hereto). “Renewable Energy Credit” or “REC” has the meaning set forth in California Public Utilities Code Section 399.12(h) and CPUC Decision 08-08-028, as applicable to the specific RECs
transferred hereunder.
“Specified Source” means “specified source”, as such term is defined in the Mandatory Reporting Rule.
“STC(s)” means the standard terms and conditions required to be included, and determined to be non-modifiable, as adopted by the CPUC and applicable to the Products.
“WREGIS” means the Western Renewable Energy Generation
Information System or any successor renewable energy
tracking program.
“WREGIS Certificate” means a “Certificate” as defined by WREGIS in the WREGIS Operating Rules and designated by
law as eligible for complying with the California Renewables Portfolio Standard and for evidencing the Green Attributes associated with the Product.
13 “WREGIS Operating Rules” means the operating rules and requirement adopted by WREGIS, as amended from time to
time.
§22 Confidentiality Notwithstanding Section 30.1 of the WSPP Agreement:
(a) (i) Purchaser may disclose information to the CAISO, the CPUC or a Governmental Body1 of competent jurisdiction
as necessary in order to support its Compliance Showings or otherwise show it has met its Compliance Obligations; (ii) Seller may disclose information as necessary to a
Shown Unit’s SC or as necessary for its Supply Plans; (iii) each Party may disclose information as necessary to the independent evaluator or other administrator of any
competitive solicitation process of Purchaser, which in turn may disclose such information as necessary to
CAISO or any Governmental Body; and (iv) Purchaser
may disclose information to any Subsequent Purchaser
as necessary for such Subsequent Purchaser to benefit
from the Product and meet its Compliance Obligations.
(b) Seller acknowledges that Buyer is a public agency subject to the requirements of the California Public Records Act (Cal. Gov. Code section 7920 et seq.) and that Seller may be required to make public this Confirmation (which may be partially redacted by Seller) in connection with the process of seeking approval from its board of directors for the execution of this Confirmation. Seller may submit
information to Purchaser that Seller considers
confidential, proprietary, or trade secret information
pursuant the Uniform Trade Secrets Act (Cal. Civ. Code
section 3426 et seq.), or otherwise protected from
disclosure pursuant to an exemption to the California
Public Records Act. Seller acknowledges that Purchaser
may submit to Seller information that Purchaser considers confidential or proprietary or protected from disclosure pursuant to exemptions to the California Public Records Act. Upon request or demand of any third person or entity not a party to this Confirmation (“Requestor”) pursuant to the California Public Records Act for production,
inspection and/or copying of this Confirmation or any
information designated by a disclosing Party as
confidential, the receiving Party as soon as practical shall notify the disclosing Party that such request has been
made, by telephone call, letter sent via electronic mail, and/or by overnight carrier to the address, or email
address listed at the end of this Confirmation. The
disclosing Party shall be solely responsible for taking whatever legal steps are necessary to protect information deemed by it to be confidential information and to prevent release of information to the Requestor by the receiving Party. If the disclosing Party takes no such action within ten (10) days, after receiving the foregoing notice from the 14 receiving Party, the receiving Party shall be permitted to comply with the Requestor’s demand and is not required
to defend against it. Notwithstanding the foregoing,
Purchaser may release confidential information without
notice to Seller if Purchaser’s legal counsel advises
Purchaser that Purchaser is required by law to release
such confidential information without notice to Seller or over the objection of Seller if Purchaser’s legal counsel advises Purchaser that Purchaser is required by law to
release such confidential information.
§23 Other WSPP
Agreement
Changes
For this Transaction, the WSPP Agreement shall be amended as follows:
(a) Section 9.4 is deleted in its entirety and replaced with the following:
“In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed,
payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed
amount shall not be required until the dispute is resolved.
Upon resolution of the dispute, any required payment shall be made within ten (10) Business Days of such resolution.
Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments. Any dispute with respect to an
invoice is waived unless the other Party is notified in writing within twelve (12) months after the invoice is
rendered or any specific adjustment to the invoice is made.
If an invoice is not rendered within twelve (12) months after the close of the month during which performance under a Confirmation occurred, the right to payment for such
performance is waived.”
(b) Section 14 is deleted and replaced with the following:
”Neither Party shall be entitled to assign this Agreement or assign, delegate or transfer all or any portion of its rights or obligations hereunder without the prior written consent of the non-assigning Party, which consent shall not be
unreasonably conditioned, delayed or withheld. Any
purported assignment made without the prior written
consent of the non-assigning Party shall be deemed void ab initio.”
(c) Section 22.1 is modified by inserting the following new text at the end thereof:
“(f) the failure of the Defaulting Party to pay its debts generally as they become due or the Defaulting Party’s
admission in a writing that is unable to pay its debts
generally as they become due;
15 (g) the institution, by the Defaulting Party, of a general assignment for the benefit of its creditors; or
(h) the application for, consent to, or acquiescence to, by the Defaulting Party, the appointment of a receiver,
custodian, trustee, liquidator, or similar official for all or a substantial portion of its assets.”
(d) Section 22.2(a) is deleted in its entirety replaced with the following:
“If an Event of Default shall have occurred and be
continuing, the Non- Defaulting Party, upon written notice to the Defaulting Party, shall have the right to (i) suspend performance under any or all transactions under this
Agreement; provided, however, in no event shall any such suspension continue for longer than ten (10) Business Days with respect to any single transaction, and (ii) exercise any remedy available at law or equity.”
(e) Section 22.2(b) is amended by inserting “and is continuing” after “Event of Default occurs” in the first line thereof and deleting the second sentence therein.
(f) Section 22.3(c) is amended by deleting the third sentence thereof and replacing it with the following:
“If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the
termination of this Agreement or a Confirmation, the
Termination Payment for all such Terminated Transactions shall be zero, notwithstanding any provision in this Section or Agreement to the contrary.”
(g) Section 22.3(e) is deleted in its entirety and replaced with the following: “[Intentionally omitted]”
(h) Section 22.3(f) is deleted in its entirety and replaced with the following:
“If the Defaulting Party disagrees with the calculation of the Termination Payment and the Parties cannot otherwise
resolve their differences, and provided that the Defaulting Party has paid the undisputed part of the Termination
Payment to the Non-Defaulting Party as provided under
Section 22.3(c), and that any amounts disputed by the
Defaulting Party are disputed in good faith, then the
Defaulting Party may submit the calculation issue to dispute resolution pursuant to Section 34.”
(i) Section 24, for purposes of this Confirmation, is deleted in their entirety and replaced with the following: “
“THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED, ENFORCED AND PERFORMED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. TO THE EXTENT ENFORCEABLE
AT SUCH TIME, EACH PARTY WAIVES ITS
16 RESPECTIVE RIGHT TO ANY JURY TRIAL WITH
RESPECT TO ANY LITIGATION ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT. “
(j) Section 28.1 is applicable and the Parties shall net monthly payments in accordance with Exhibit A of the WSPP
Agreement and the netting provisions of Exhibit A to the WSPP Agreement shall apply to the transaction covered by this Confirmation as if Buyer and Seller had both executed Exhibit A to the WSPP Agreement.
(k) Section 30.1(4) is amended by inserting “or requested” after the word “required” and by adding the following at the end of the first sentence: “; or (8) to the Party’s and such Party’s affiliates’ lenders, counsel, accountants, advisors and agents who have a need to know such information and have agreed to or are otherwise bound to keep such terms
confidential”.
(l) Subsections 34.1 and 34.2 are deleted and replaced with the following:
“34.1 DISPUTE RESOLUTION
IN THE EVENT OF ANY CONTROVERSY, DISPUTE OR
CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THIS
TRANSACTION OR THE BREACH, PERFORMANCE,
TERMINATION, ENFORCEMENT, INTERPRETATION,
CONSTRUCTION OR VALIDITY OF THIS AGREEMENT,
WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY (EACH, A “DISPUTE”), WITHIN TEN
(10) DAYS FOLLOWING THE RECEIPT OF A WRITTEN
NOTICE FROM EITHER PARTY IDENTIFYING SUCH
DISPUTE, THE PARTIES SHALL MEET, NEGOTIATE
AND ATTEMPT, IN GOOD FAITH, TO RESOLVE THE
DISPUTE QUICKLY, INFORMALLY AND
INEXPENSIVELY. IF THE PARTIES ARE UNABLE TO
RESOLVE A DISPUTE ARISING HEREUNDER WITHIN
THIRTY (30) DAYS AFTER RECEIPT OF SUCH NOTICE,
THEN EITHER PARTY MAY SEEK ANY AND ALL
REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY,
SUBJECT TO THE LIMITATIONS SET FORTH IN THE
AGREEMENT AND THE REQUIREMENTS OF SECTION
34.2.”
“34.2 EXCLUSIVE JURISDICTION
EACH PARTY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE STATE OR FEDERAL COURTS
LOCATED IN THE CITY OF SAN FRANCISCO,
CALIFORNIA (EACH, A “SPECIFIED COURT”), FOR ANY
ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY TRANSACTION, AND
EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE
TO SUCH JURISDICTION OR THE CONVENIENCE OF
SUCH FORUM; PROVIDED; HOWEVER, THAT ANY
DISPUTE NOT RESOLVED WITHIN THE TIME PERIODS
17 SPECIFIED IN SECTION 34.1 SHALL BE RESOLVED AS
FOLLOWS:
(a) ANY DISPUTE, INCLUDING THE
DETERMINATION OF THE SCOPE OF THIS
AGREEMENT TO ARBITRATE, SHALL BE DETERMINED
BY FINAL, NON-APPEALABLE BINDING ARBITRATION
IN THE COUNTY OF LOS ANGELES, CALIFORNIA
BEFORE THREE (3) ARBITRATORS. THE ARBITRATION
SHALL BE ADMINISTERED BY JUDICIAL ARBITRATION
AND MEDIATION SERVICES, INC. (“JAMS”) PURSUANT
TO ITS COMPREHENSIVE ARBITRATION RULES AND
PROCEDURES. WITHIN FIFTEEN (15) DAYS AFTER THE
COMMENCEMENT OF ARBITRATION, EACH OF BUYER,
ON THE ONE HAND, AND SELLER, ON THE OTHER
HAND, SHALL SELECT ONE INDIVIDUAL TO ACT AS
ARBITRATOR, AND JAMS SHALL APPOINT ONE (1)
PERSON TO ACT AS AN ARBITRATOR. THE JAMS
APPOINTED ARBITRATOR SHALL SERVE AS THE
CHAIRPERSON (THE “CHAIRPERSON”). IF ANY OF
BUYER, ON THE ONE HAND, OR SELLER, ON THE
OTHER HAND, IS UNABLE OR FAILS TO SELECT ONE
INDIVIDUAL TO ACT AS ARBITRATOR, SUCH
ARBITRATOR SHALL BE APPOINTED BY JAMS. THE
CHAIRPERSON SHALL BE AN INDIVIDUAL WHO HAS
EXPERIENCE IN RENEWABLE ENERGY-RELATED
TRANSACTIONS, AND NONE OF THE ARBITRATORS
SHALL HAVE BEEN PREVIOUSLY EMPLOYED BY ANY
PARTY OR HAVE ANY DIRECT PECUNIARY INTEREST
IN ANY PARTY OR THE SUBJECT MATTER OF THE
ARBITRATION, UNLESS SUCH CONFLICT IS
EXPRESSLY ACKNOWLEDGED AND WAIVED IN
WRITING BY ALL OF THE PARTIES. THE PARTIES
SHALL MAINTAIN THE CONFIDENTIAL NATURE OF THE
ARBITRATION PROCEEDING AND ANY AWARD,
INCLUDING ANY HEARING(S), EXCEPT AS MAY BE
NECESSARY TO PREPARE FOR OR CONDUCT THE
ARBITRATION HEARING ON THE MERITS, OR EXCEPT
AS NECESSARY IN CONNECTION WITH A COURT
APPLICATION FOR A PRELIMINARY REMEDY, A
JUDICIAL CHALLENGE TO AN AWARD OR ITS
ENFORCEMENT, OR UNLESS OTHERWISE REQUIRED
BY LAW OR JUDICIAL DECISION. ANY ARBITRATION
PROCEEDINGS, DECISION OR AWARD RENDERED
HEREUNDER AND THE VALIDITY, EFFECT AND
INTERPRETATION OF THIS ARBITRATION PROVISION
SHALL BE GOVERNED BY THE FEDERAL
ARBITRATION ACT. THE ARBITRATOR(S) SHALL HAVE
NO AUTHORITY TO AWARD CONSEQUENTIAL,
TREBLE, EXEMPLARY, OR PUNITIVE DAMAGES OF
ANY TYPE OR KIND REGARDLESS OF WHETHER SUCH
DAMAGES MAY BE AVAILABLE UNDER ANY LAW OR
RIGHT, WITH THE PARTIES HEREBY AFFIRMATIVELY
WAIVING THEIR RIGHTS, IF ANY, TO RECOVER OR
CLAIM SUCH DAMAGES. THE RESPONSIBILITY FOR
18 COMPENSATION AND EXPENSES OF THE THREE
ARBITRATORS AND ALL OTHER EXPENSES CHARGED
BY JAMS SHALL BE EQUALLY SPLIT BY EACH OF
BUYER AND SELLER. IN ANY ARBITRATION ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE
ARBITRATORS SHALL AWARD TO THE PREVAILING
PARTY, IF ANY, THE COSTS AND ATTORNEY’S FEES
REASONABLY INCURRED IN SEEKING TO ENFORCE
THE APPLICATION OF THIS SECTION 34.2(a) AND BY
THE PREVAILING PARTY IN CONNECTION WITH THE
ARBITRATION. NOTWITHSTANDING THE FOREGOING
PROVISIONS OF THIS SECTION 34.2(a), ANY COSTS
INCURRED BY A PARTY IN SEEKING JUDICIAL
ENFORCEMENT OF ANY WRITTEN DECISION OF THE
ARBITRATORS SHALL BE CHARGEABLE TO AND
BORNE EXCLUSIVELY BY THE PARTY AGAINST WHOM
SUCH COURT ORDER IS OBTAINED. THE AWARD
SHALL BE FINAL AND BINDING ON THE PARTIES AND
JUDGMENT UPON ANY AWARD MAY BE ENTERED IN
ANY COURT OF COMPETENT JURISDICTION.
(b) WITHOUT LIMITING THE PROVISIONS IN
SECTION 34.2(a), IF SECTION 34.2(a) IS DEEMED
INEFFECTIVE OR UNENFORCEABLE IN A REFERENCE
PROCEEDING OR IN AN ARBITRATION PURSUANT TO
SECTION 34.2(a), ANY DISPUTE AS TO ITS
EFFECTIVENESS OR ENFORCEABILITY, TOGETHER
WITH ANY OTHER REMAINING DISPUTES, SHALL BE
RESOLVED BY A REFERENCE PROCEEDING IN
CALIFORNIA IN ACCORDANCE WITH THE PROVISIONS
OF SECTIONS 638 ET SEQ. OF THE CALIFORNIA CODE
OF CIVIL PROCEDURE (“CCP”), OR THEIR SUCCESSOR
SECTIONS (A “REFERENCE PROCEEDING”), WHICH
SHALL, AFTER THE DETERMINATION THAT SECTION
34.2(a) IS INEFFECTIVE OR UNENFORCEABLE,
CONSTITUTE THE EXCLUSIVE REMEDY FOR THE
RESOLUTION OF ANY SUCH DISPUTE(S). AS A
CONDITION PRECEDENT TO INITIATING A
REFERENCE PROCEEDING WITH RESPECT TO ANY
DISPUTE, THE PARTIES SHALL COMPLY WITH THE
PROVISIONS OF SECTION 34.1 AND SHALL SEEK AND
OBTAIN A DETERMINATION PURSUANT TO SECTION
34.2(a) WHETHER SECTION 34.2(a) IS EFFECTIVE OR
ENFORCEABLE. VENUE FOR A REFERENCE
PROCEEDING WILL BE IN ANY SPECIFIED COURT
WHERE VENUE IS APPROPRIATE UNDER CALIFORNIA
LAW (THE “REFERENCE COURT”). THE FOLLOWING
MATTERS SHALL NOT REQUIRE A REFERENCE
PROCEEDING: (i) EXERCISE OF SELF-HELP REMEDIES
(INCLUDING WITHOUT LIMITATION SET-OFF), AND (ii)
TEMPORARY, PROVISIONAL OR ANCILLARY
REMEDIES (INCLUDING TEMPORARY RESTRAINING
ORDERS OR PRELIMINARY INJUNCTIONS). THE
EXERCISE OF, OR OPPOSITION TO, ANY OF THE
19 ABOVE DOES NOT WAIVE THE RIGHT TO A
REFERENCE PROCEEDING HEREUNDER. THE
REFEREE IN SUCH REFERENCE PROCEEDING SHALL
BE SELECTED BY THE WRITTEN AGREEMENT OF THE
PARTIES. IF THE PARTIES DO NOT AGREE UPON A
REFEREE WITHIN THE TIME PERIODS SPECIFIED IN
SECTION 34.1, UPON REQUEST OF A PARTY TO A
REFERENCE COURT, A REFEREE SHALL BE
SELECTED BY THE JUDGE PRESIDING OVER THE
REFERENCE PROCEEDING. THE REFEREE SHALL
DETERMINE ALL ISSUES IN ACCORDANCE WITH
EXISTING CASE LAW AND STATUTORY LAW OF THE
STATE OF CALIFORNIA, INCLUDING THE RULES OF
EVIDENCE APPLICABLE TO PROCEEDINGS AT LAW.
THE REFEREE IS EMPOWERED TO ENTER EQUITABLE
AND LEGAL RELIEF, AND RULE ON ANY MOTION
WHICH WOULD BE AUTHORIZED IN A COURT
PROCEEDING, INCLUDING WITHOUT LIMITATION
MOTIONS FOR SUMMARY JUDGMENT OR SUMMARY
ADJUDICATION. THE REFEREE SHALL ISSUE A
DECISION, AND PURSUANT TO CCP § 644 THE
REFEREE’S DECISION SHALL BE ENTERED BY THE
COURT IN WHICH SUCH REFERENCE PROCEEDING
WAS INITIATED AS A JUDGMENT OR ORDER IN THE
SAME MANNER AS IF TRIED BY ANY SUCH
COURT. THE FINAL JUDGMENT OR ORDER FROM ANY
DECISION OR ORDER ENTERED BY THE REFEREE
SHALL BE FULLY APPEALABLE AS PROVIDED BY
LAW. THE PARTIES RESERVE THE RIGHT TO
FINDINGS OF FACT, CONCLUSIONS OF LAW, A
WRITTEN STATEMENT OF DECISION, AND THE RIGHT
TO MOVE FOR A NEW TRIAL OR A DIFFERENT
JUDGMENT, WHICH NEW TRIAL IF GRANTED, WILL BE
A REFERENCE HEREUNDER.”
(m) The following shall be inserted as a new Section 34.5:
“34.5 LIMITATION OF DAMAGES
EXCEPT AS OTHERWISE SPECIFIED IN ANY
CONFIRMATION, FOR BREACH OF ANY PROVISION OF
THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY
OR MEASURE OF DAMAGES IS PROVIDED, THE
EXPRESS REMEDY OR MEASURE OF DAMAGES
PROVIDED IS THE SOLE AND EXCLUSIVE REMEDY
UNDER THIS AGREEMENT AND LIABILITY FOR THE
BREACH IS LIMITED AS SET FORTH IN THE PROVISION
AND ALL OTHER REMEDIES FOR DAMAGES AT LAW
OR IN EQUITY ARE WAIVED. EXCEPT AS OTHERWISE
SPECIFIED IN ANY CONFIRMATION, IF NO EXPRESS
REMEDY OR MEASURE OF DAMAGES IS PROVIDED IN
THIS AGREEMENT FOR A PARTICULAR BREACH,
LIABILITY FOR THE BREACH IS LIMITED TO DIRECT
DAMAGES ONLY, THE DIRECT DAMAGES ARE THE
SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT FOR THE BREACH, AND ALL OTHER
20 REMEDIES FOR DAMAGES AT LAW OR IN EQUITY ARE
WAIVED. EXCEPT AS OTHERWISE SPECIFIED IN ANY
CONFIRMATION, NEITHER PARTY IS LIABLE FOR ANY
OTHER TYPE OF DAMAGE, INCLUDING INCIDENTAL,
PUNITIVE, EXEMPLARY, CONSEQUENTIAL, SPECIAL
OR INDIRECT DAMAGES OF ANY NATURE (INCLUDING
DAMAGES ASSOCIATED WITH LOST PROFITS,
BUSINESS INTERRUPTION AND LOSS OF GOODWILL)
ARISING AT ANY TIME, WHETHER IN TORT
(INCLUDING THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF EITHER PARTY OR ANY RELATED
PERSON), WARRANTY, STRICT LIABILITY, CONTRACT
OR STATUTE, UNDER ANY INDEMNITY PROVISION, OR
OTHERWISE.”
(n) Section 37 is amended by inserting the following in the beginning thereof: “On the date of entering into this
Confirmation,”.
(o) Section 41 “Witness” shall become Section 42 and the following “Standard of Review” Section shall be substituted as Section 41 in its place:
“The Parties agree as follows:
From the date of entering into a Transaction under this Agreement and throughout the term of such Transaction,
the Parties each warrant and covenant as follows:
(i) Absent the agreement of all Parties to the proposed change, the standard of review for changes to any rate, charge, classification, term or condition of this Agreement (including all Transactions and/or Confirmations), whether proposed by a Party (to the extent that any waiver in
subparagraph (ii) below is unenforceable or ineffective as to such Party), a non-party or FERC acting sua sponte, shall be the “public interest” application of the "just and
reasonable" standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power
Co., 350 U.S. 348 (1956) ( the “Mobile-Sierra” doctrine) and clarified in Morgan Stanley Capital Group, Inc. v. Public Util.
Dist. No. 1 of Snohomish, 554 U.S. 527 (2008) and NRG
Power Marketing LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165 (2010).
(ii) In addition, and notwithstanding the foregoing
subparagraph (i), to the fullest extent permitted by
applicable law, each Party, for itself and its successors and assigns, hereby expressly and irrevocably waives any rights it can or may have, now or in the future, whether under §§ 205 and/or 206 of the Federal Power Act or otherwise, to seek to obtain from FERC by any means, directly or
indirectly (through complaint, investigation or otherwise), and each hereby covenants and agrees not at any time to seek to so obtain, an order from FERC changing any section of this Agreement specifying the rate, charge, classification, or other term or condition agreed to by the Parties, it being 21 the express intent of the Parties that, to the fullest extent permitted by applicable law, neither Party shall unilaterally seek to obtain from FERC any relief changing the rate,
charge, classification, or other term or condition of this Agreement, notwithstanding any subsequent changes in
applicable law or market conditions that may occur. In the event it were to be determined that applicable law precludes the Parties from waiving their rights to seek changes from FERC to their market-based power sales contracts
(including entering into covenants not to do so) then this subparagraph (ii) shall not apply, provided that, consistent with the foregoing subparagraph (i), neither Party shall seek any such changes except solely under the "public interest" application of the "just and reasonable" standard of review and otherwise as set forth in the foregoing subparagraph (i).”
(p)The Parties agree to the following modifications to
Schedule R for this Transaction.
§1
1. Clarification Regarding Acceptance of RECs. The
following is added to the end of Section R-3.1.2 of
Service Schedule R: "Purchaser shall not be entitled to reject or refuse to Accept any RECs Delivered which
comply with the requirements of a Confirmation
pursuant to which they are Delivered. Purchaser's
rejection of or failure to Accept any conforming RECs
Delivered in accordance with this Agreement and the
applicable Confirmation shall be subject to Section
R-9.1.1 or R-9.1.2 of Service Schedule R, as the case
may be, as modified by a Confirmation."
§2
2. Clarification Regarding Issuance of RECs. The first
sentence of Section R-3.3.2 is deleted up to the
semicolon and replaced with the following: "Seller is
responsible for initiating the transfer and issuance of RECs in the Tracking System, and it shall not be a
failure by Seller to deliver Product to the extent the
result of an error or omission of the Tracking System;". §3
3. Definition of "Change in Law". The first sentence of Section R-5.2.2(a) is deleted and replaced with the
following: "(a) "Change in Law" means any addition,
amendment, decision, ruling, order, binding
interpretation, determination, guideline, policy or
guidance by or of the CEC, the CPUC or any other
Governmental Authority having jurisdiction over the
Applicable Program designated in the Confirmation, to
or regarding any laws, rules, regulations, orders, or
judicial precedent, that applies to an Applicable
Program designated in the Confirmation, that is
enacted, issued or becomes effective after the
Reference Date and materially affects the Applicable
Program or compliance of the REC with the Applicable
Program; provided, however, the Change in Law
22 provisions of the WSPP Agreement shall not apply to
any Product that was delivered prior to any Change in
Law if such Product complied with the California RPS
Program that existed when it was delivered.”
§4
4. Damages. For purposes of this Confirmation,
Schedule R—9 is deleted in its entirety and replaced
with the following:
§5
“If Purchaser refuses or fails to Accept Delivery of
RECs or Energy in accordance with this Confirmation,
then Purchaser will pay Seller the Contract Price for the quantity of RECs and Energy Purchaser refused or
failed to Accept. If Seller fails to Deliver RECs to
Purchaser in accordance with this Confirmation, then
Seller shall be liable to Purchaser for the product of (i) and (ii) where (i) is the amount, if any, by which the
Replacement Price exceeded the Contract Price and
(ii) is the amount by which the quantity of RECs Seller Delivered was less than the Contract Quantity, subject
to any limitations stated in the Confirmation. In no event will Seller be liable for any compliance penalties, costs or other damages in any form with respect to its failure to delivery of Product to Purchaser hereunder. For
greater certainty, Seller shall not be liable to Purchaser for any quantity of Product that does not meet or satisfy the applicable Eligibility Requirements as a result of a Buyer Eligibility Failure.”
§6
5. Uncontrollable Force. For purposes of this Transaction, the performance of the Parties' obligations under the
WSPP Agreement and the Confirmation shall be
subject to Uncontrollable Force and Section 10 of the
WSPP Agreement shall apply such that either Party will
be relieved of its obligations to sell and Deliver or
purchase and Accept the Product without liability to the extent that, and for the period during which such
performance is prevented by Uncontrollable Force. The
first sentence of the second paragraph of Section 10 of the WSPP as set out in Section R-8 is modified as
follows: (a) the following is added at the end of
subparagraph (ii) of Section 10 of the WSPP
Agreement as set out in Section R-8 ", except to the
extent such supply is itself subject to Uncontrollable
Force"; (b) the word “or” is deleted after subparagraph (iii); and (c) the following is added at the end of
subparagraph (iii) “; or (iv) any action taken by
Purchaser in its governmental capacity”.
§7
6. Replacement Price. The first sentence of Section R10.1.4 is deleted and replaced with the following:
“Replacement Price: The price at which the Purchaser,
acting in a commercially reasonable manner, effects a
23 purchase of substitute Products in place of the
Products not Delivered by the Seller or, absent such a
purchase, the market price for such quantity of
Products not Delivered by the Seller as determined by
the Purchaser in a commercially reasonable manner.”
7. Resale Price. Section R-10.1.5 is deleted and replaced with the following: “Resale Price: The price at which
the Seller, acting in a commercially reasonable
manner, effects a resale of the Products not received
or accepted by the Purchaser or, absent such a resale,
the market price for such quantity of the Products as
determined by the Seller in a commercially reasonable
manner.”
8. Governmental Authority. The phrase “including any
department or agency” is deleted from the definition of Governmental Authority in Annex 1 of Schedule R to
the WSSP Agreement and replaced with the following:
“including any department, agency, municipality,
county, governmental board, public power authority,
public utility district, joint action agency, or other similar political subdivision or public entity”.
§24 Counterparts This Confirmation may be signed in any number of counterparts with the same effect as if the signatures to the counterparts were upon a single instrument. The Parties may rely on electronic, or scanned signatures as originals under this Confirmation. Delivery of an executed signature page of this Confirmation as a PDF attachment to an email shall be the same as delivery of a manually executed signature page.
§25 Entire
Agreement;
No Oral
Agreements or
Modifications
This Confirmation sets forth the terms of the Transaction into which the Parties have entered and shall constitute the entire agreement between the Parties relating to the contemplated purchase and sale of the Products. Notwithstanding any other provision of the Agreement or this Confirmation, this Transaction may be confirmed only through a Documentary Writing executed by both Parties, and no amendment or modification to this Transaction shall be enforceable except through a Documentary Writing executed by both Parties.
§26 Invoice
Requirements
Each invoice shall provide Buyer (a) records of metered data, including metering and CAISO transaction data sufficient to document and verify the amount of Project Energy by the Generating Facility(ies) for each Generation Period during the applicable month, including the amount of the Project Energy as set forth in the first CAISO settlement statement for the applicable month that includes meter data from the CAISO-approved meter; (b) the applicable Contract Price; (c) a reconciliation in .xlsx format of hourly meter data, E-Tag data and associated calculations, including the lesser of each by hour in the format set forth in Form of Hourly Meter and E-Tag Reconciliation Report (also known as the “lesser of workbook”) or as otherwise reasonably requested by 24 Buyer, plus any additional data as may be reasonably required by Buyer for compliance with CPUC reporting obligations, including pursuant to the CPUC’s Energy Division Portfolio Content Category Classification Review Handbook (or successor publication); (d) a statement of the quantity of WREGIS Certificates transferred during the prior month that have been matched with E-Tags associated with the Dynamic Schedules, and (e) any additional information reasonably requested by Purchaser. Seller shall provide Purchaser reasonable access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount included by Seller on an invoice. Each invoice shall be in an electronic format reasonably specified by Purchaser (e.g., PDF, .xlsx).
§27 Uncontrollable
Forces
This Confirmation and the obligations hereunder are subject to the Uncontrollable Force provisions of the WSPP Agreement such that either Party will be relieved of its obligations to sell and deliver or purchase and receive the Product without liability to the extent that, and for the period during which, such performance is prevented by an Uncontrollable Force. For greater certainty and without limiting the foregoing, in the event and to the extent that the Project Energy does not meet or satisfy the Eligibility Requirements as a result of an event or circumstance which otherwise meets the definition of “Uncontrollable Force” in the WSPP Agreement, that will be considered a Uncontrollable Force for the purposes of this Confirmation, and any Product quantities provided for in this Confirmation shall be reduced to the extent of and by the amount affected by such event of Uncontrollable Force.
§28 Conditions
Precedent
On the Effective Date and as a condition to the obligations of Seller under this Confirmation, Buyer shall provide Seller: certified copies of all resolutions and any other documents evidencing the necessary internal authorizations with respect to the execution, delivery and performance by Buyer of this Confirmation. §29 Assignment Subject to the terms in this Error! Reference source not found., Seller agrees that Buyer may make a limited assignment of Buyer’s right to receive all (but not less than all) of the Project Energy hereunder for a specified period of time during the Delivery Term in connection with a municipal prepayment transaction to a Permitted Transferee in which Buyer remains obligated to perform all of its obligations hereunder, subject to the execution of a limited assignment agreement by and among Seller, Buyer and Permitted Transferee upon terms and conditions mutually agreed in writing by such parties. “Permitted Transferee” means any entity that has a credit rating from S&P and/or Moody’s and is at least as creditworthy (taking into account any credit support provided by such person) as Buyer when the assignment is executed as reasonably determined by Seller (but in no event shall such transferee be rated lower than investment grade by the
aforementioned rating agencies).
Signature Page Follows
25 ACKNOWLEDGED AND AGREED BY THE PARTIES AS OF THE EFFECTIVE DATE:
NRG Business Marketing LLC
Signature: ___________________________________
Name (print): ___________________________________
Title: ___________________________________
Date: ___________________________________
City of Vernon
Signature: ___________________________________
Name (print): ___________________________________
Title: ___________________________________
Date: ___________________________________
Attest:
______________________
Genoveva Rocha, City Clerk
Date:
Approved as to Form:
______________________
Zaynah Moussa-Milward, City Attorney
Date:
Brian Saeki
City Administrator
26 APPENDIX A
GENERATING FACILITY(S)
Seller Designated Facility(s):
Name of Facility Resource CEC
RPS ID
Host Balancing
Authority
Harquahala Sun I Solar PV 64824C CAISO
Fifth Standard Solar PV Solar PV 62761A CAISO
SE Athos I Solar PV 63755A CAISO
Alta Wind X, LLC Wind 62244A CAISO
Alta Wind XI, LLC Wind 62245A CAISO
Rising Tree Wind Farm III, LLC Wind 62469A CAISO
Rising Tree Wind Farm, LLC Wind 62425A CAISO
Copper Mountain Solar 4, LLC Solar 62662A NV Energy
Imperial Valley Solar 2, LLC Solar 61648A Imperial Irrigation District Imperial Valley Solar 3, LLC Solar 61649A Imperial Irrigation District 41MB 8me LLC Solar 61829A CAISO
Panoche Valley Solar, LLC Solar 60858A CAISO
Great Valley Solar 3, LLC Solar 63281A CAISO
Blythe Solar III, LLC Solar 63130A CAISO
CED Wistaria Solar, LLC Solar 62623A CAISO
Copper Mountain Solar 2 Solar PV 60990A NV Energy
Shiloh IV Wind Project Wind 61617A CAISO
Kansas Solar PV 61263A CAISO
Lost Hills Solar Solar PV 61893A CAISO
Cuyama Solar Array Solar PV 61891A CAISO
Blackwell Solar Solar PV 61892A CAISO
Midway Solar Farm I Solar PV 61295A Imperial Irrigation District Bayshore Solar A Solar PV 63133A CAISO
Bayshore Solar B Solar PV 63134A CAISO
Bayshore Solar C Solar PV 63135A CAISO
Java Solar Solar PV 63137A CAISO
RE Gaskell West 3 Solar PV 63619A CAISO
RE Gaskell West 4 Solar PV 63617A CAISO
27 RE Gaskell West 5 Solar PV 63618A CAISO
Additional generating facilities may be added by Seller pursuant to the process set forth herein (together with the Generating Facility set forth in the table above, the “Generating Facilities”).
Seller may add additional generating facilities by providing notice of such addition to Buyer at least ten (10) Business Days prior to delivering Product from such additional generating facilities, and such generating facilities shall automatically become a Generating Facility hereunder. Seller will, in its sole discretion, utilize any one or more of the Generating Facilities in order to satisfy its obligations hereunder. In addition to meeting the requirements in this Confirmation for Generating Facilities, any generating facilities added or substituted by Seller shall be owned by the Seller or shall be subject to a long-term contract in its original term of at least ten (10) years.