HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2021-10-13 COU No. 2122-140
Transaction Confirmation
This Transaction Confirmation (the "Confirmation") is entered into this day of
2021 (the "Effective Date"), by and between Party 1, ("Northern California
Power Agency") and Party 2 ("City of Ukiah"), each referred to herein individually as a "Party"
and collectively as the "Parties" regarding the purchase and sale of Portfolio Content Category 1
Product RECs ("the Product") pursuant to the terms and conditions contained herein. The
Master Agreement, WSPP Service Schedule R and this Confirmation shall be collectively
referred to herein as the"Agreement" and supersede and replace any prior oral or written
confirmation regarding the Transaction (as defined below). Terms capitalized but not defined
herein shall have the meaning as set forth in the Master Agreement, WSPP Service Schedule R
or the CAISO Tariff.
Contact
Information:
Seller:City of Ukiah Purchaser: Northern California Power Agency
Address: 300 Seminary Avenue Address:651 Commerce Drive
Ukiah,CA 95482 Roseville,CA 95678
Contract Representative: Mel Grandi Contract Representative: Ken Goeke
Phone: (707)463-6295 Phone: (916)781-4290
Email:mgrandi@cityofukiah.com Email: ken.goeke@ncpa.com
Settlements Contact: Mel Grandi Settlements Contact: Michael Maltese
Phone: (707)463-6295 Phone:(916)781-4213
Email: mgrandi@cityofukiah.com Email: Michael.Maltese@ncpa.com
Master Agreement: WSPP Agreement effective June 20, 2017, as amended to date, including;
WSPP Service Schedule R. Any conflicts between the Master Agreement
and the Confirmation shall be resolved in the following order of control:
first,the Confirmation; and second,the Master Agreement.
Transaction: Seller owns bundled RECs produced from certain generating facilities,
which are identified in this Confirmation, each of which qualifies as an
eligible renewable energy resource ("ERR") during the Delivery Term (as
defined below) under the California RPS(as defined below), as codified at
California Public Utilities Code Section 399.11, et seq., and Seller desires
to sell to Purchaser, and Purchaser desires to accept from Seller, Product
produced by such generating facilities pursuant to the terms and
conditions set forth herein.
Product: Resource Contingent Bundled RECs as such is described under Section R-
2.3.4 of WSPP Service Schedule R. More specifically subject to Eligibility,
Transfer of RECS, and Change of Law Provisions, the Product shall comply
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with Section 399.16(b)(1) Portfolio Content Category 1 Product, as
defined by CPUC Decision 11-12-052, consisting of bundled RECs
produced by the Projects listed herein, each of which is: (i) certified as an
ERR for the California RPS and registered with WREGIS, and (ii) from
which Seller is entitled, pursuant to its agreements, to Seller's
Entitlement Interest of the output of the Energy and associated Green
Attributes, and such output is used to source the Product delivered
hereunder (collectively, the "Generating Facilities"). The Product shall
include unbundled RECs, but does not include any other non-renewable
and environmental attributes (e.g., Ancillary Services or Resource
Adequacy Capacity).
Seller: City of Ukiah
Purchaser: Northern California Power Agency
Delivery Term: Effective Date through 31 October, 2021.
Generating Facilities: Identified Below.
Facility Name CAISO Resource ID WREGIS ID Seller's Entitlement Interest CEC Certification
Geothermal 1,Unit 1 NCPA 7 GP1UN1 W1254 5.6145% 609080A
Geothermal 1, Unit 2 NCPA_7_GP1UN2 W1255 5.6145% 60909A
Geothermal 2, Unit4 NCPA_7_GP2UN4 W1257 5.6145°Y 60911A
Delivery Points: Each Generating Facility's respective Point of interconnection with the
CAI50 Balancing Authority Area.
Contract
Quantity: Not-to-Exceed 3,000 MWh.
Contract Price: The Contract Price for each REC produced and transferred from Seiler to
Purchaser("REC Contract Price") shall be equal to $16.00.
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
Purchaser qualifies under the requirements of the California Renewables
Portfolio Standard. To the extent a change in law occurs after execution
of this Agreement that causes this representation and warranty to be
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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: D.07-11-025, Attachment A.) D.08-
04-009] The aggregate "commercially reasonable efforts" expenditures
for Eligibility, Transfer of RECS, and Change of Law Provisions (Section R-
5.2.2(b)) are limited to the Capped Amount.
Transfer of RECs: Transfer of Renewable Energy Credits. Seller and, if applicable, its
successors, represents and warrants that throughout the Term of this
Agreement the Renewable Energy Credits transferred to Purchaser
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. D.11-01-025]
Tracking of RECS in WREGIS. Seller warrants that all necessary steps to
allow the Renewable Energy Credits transferred to Purchaser 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. D.11-01-025]
Purchaser warrants that all necessary steps to allow the Renewable
Energy Credits transferred to Purchaser to be tracked in the Western
Renewable Energy Generation Information System will be taken prior to
the first delivery under the contract.
The Transfer of RECS shall be made in accordance with the rules and
regulations of WREGIS. For each month during the Delivery Term, Seller
shall transfer RECS from its WREGIS account to Purchaser's WREGIS
account within ten (10) Business Days of creation of the RECS.
Purchaser's WREGIS account ID is 297.
Vintage: Calendar Year 2021.
Payment: Payment Due from Purchaser to Seller= Delivered and Accepted Contract
Quantity * REC Contract Price.
RECS: Purchaser shall pay Seller for transferred RECS within (10) Business
Days of receipt of Seller's invoice subsequent to the transfer of RECS. The
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invoices issued by Seller hereunder shall include a statement detailing the
RECs conveyed via WREGIS (i.e., Project Name,Vintage Month, CEC RPS
ID, Contract Quantity and REC Contract Price).
Environmental
Attributes: All Attributes. The Product is a Bundled REC sourced from the Generating
Facilities. The Parties agree that the Product will be sourced only from
the specific Generating Facilities identified in the Confirmation with no
substitutions.
Applicable
Program: State of California Renewable Portfolio Standard Program (hereinafter
referred to as "California RPS", "Renewables Portfolio Standards" or"RPS
Program"), as codified at California Public Utilities Code Section 399.11,
et seq., and requiring that a specified percentage of a load-serving
entity's retail sales should be supplied with electricity generated by
eligible ERRS.
Tracking System: RECs associated with the Product shall be tracked using WREGIS. In
addition to any audit rights that Purchaser may have under the Master
Agreement, Seller shall, upon Purchaser's reasonable request, provide
documentation which may include meter data as recorded by a CAISO
certified meter, sufficient to demonstrate that the Product has been
conveyed and delivered, in accordance with the terms of this
Confirmation.
Representations and
Warranties: Each Party represents and warrants to the other(i)that it is an "eligible
commercial entity" and "eligible contract participant"within the meaning
of the Commodity Exchange Act; (ii) this transaction has been subject to
individual negotiation by the Parties; and, (iii) all necessary steps have
been taken to allow the Green Attributes to be transferred to Purchaser
to be tracked in WREGIS.
Seller further represents and warrants to Purchaser that:
(i) Seller has the right to sell the Product and holds the rights to
Seller's Entitlement Interest in all Product from the Generating
Facilities;
(ii) Seller has not sold the Product or any Green Attribute of the
Product to be transferred to Purchaser to any other person or
entity;
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(iii) Unbundled RECs to be purchased and sold pursuant to this
Confirmation are not committed to another party;
(iv)the Product is free and clear of all liens or other encumbrances;
and
(v) it will cooperate and work with Purchaser,the CEC, and/or the
CPUC to provide any documentation required by the CPUC or CEC
to support the Product's classification as a Portfolio Content
Category 3 Product as set forth in California Public Utilities Code
Section 399.16(b)(1)(A).
Furthermore,Seller hereby sells and conveys all Green Attributes
associated with the Product produced from the Generating Facilities
(other than resource adequacy attributes and ancillary services)to
Purchaser as part of the Portfolio Content Category 3 Product being
delivered.
Change in Law
Provisions: The Product shall be Regulatorily Continuing requiring that Seller make
commercially reasonable efforts to obtain compliance with Changes in
Law in the California RPS, provided that such costs should not be greater
than $5,000(the "Capped Amount"). This provision shall not apply to any
Product that was Delivered and Accepted prior to any Change in Law if
such Product complies with the California RPS that existed when it was
Delivered and Accepted.
This Confirmation is executed for the express purposes of complying with
the California RPS and Section 399.16(b)(1)(A) of the California Public
Utilities Code. The Parties acknowledge that the CEC and/or CPUC may
be modifying mandatory contract language, altering the procurement
and product qualification rules, and updating the relevant RPS Eligibility
Guidebook in a manner consistent with that legislation. If any statutes,
rules, regulations, permits or authorizations are enacted, amended,
granted or revoked which have the effect of changing the transfer and
sale procedure set forth in this Confirmation so that the implementation
of this Transaction becomes impossible or impracticable, or otherwise
revokes or eliminates the California RPS or language required to conform
to the California RPS,the Parties hereto agree to negotiate in good faith
to amend this Confirmation to conform with such new statutes,
regulations, or rules in order to maintain the original intent of the Parties
under this Agreement.
Reporting
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Obligation: Purchaser shall have no responsibility(whether regulatory or financial)
for greenhouse gas emissions associated with the Product, and any such
obligation shall be fulfilled by or at the direction of Seller at its own cost.
Review: To monitor compliance with this Confirmation, each Party reserves the
right to review during normal business hours and at its own expense,for
up to two (2) years following delivery of the Product under this
Confirmation, and with reasonable advance notice to the other Party, and
to the extent that such other Party is in possession of such information,
information required to verify that the Product sold under this
Confirmation was not otherwise sold by Seller to a third party.
Confidentiality: Except as provided in this Confidentiality section and the California Public
Records Act, and subject to and without limiting Section R-7, neither
Party shall publish, disclose, or otherwise divulge Confidential
Information to any person at any time during or after the term of this
Agreement, without the other Party's prior express written consent.
Each Party shall permit knowledge of and access to Confidential
Information only to those of its affiliates and to persons investing in,
providing funding to or acquiring it or its affiliates, and to its and the
foregoing persons' respective attorneys, accountants, representatives,
agents and employees who have a need to know such Confidential
Information related to this Agreement.
If required by any law, statute, ordinance, decision, order or regulation
passed, adopted, issued or promulgated by a court, Governmental
Authority or agency having jurisdiction over a Party, including the
California Public Records Act, that Party may release Confidential
Information, or a portion thereof, as required by the Applicable Law,
statute, ordinance, decision, order or regulation. A Party may disclose
Confidential Information to accountants in connection with audits. In the
event a Party is required to release Confidential Information, such Party
shall notify the other Party of the required disclosure, such that the other
Party may attempt (if such Party so chooses), at its sole cost,to cause the
recipient of the Confidential Information to treat such information in a
confidential manner, and to prevent such information from being
disclosed or otherwise becoming part of the public domain. Parties
acknowledge that Purchaser is obligated to provide Confidential
Information to the CPUC and CEC for regulatory compliance purposes for
the California RPS program, and Seller waives the prior notice
requirement and authorizes such disclosures to the CPUC and CEC.
Applicable law/
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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, Applicable
Law, Non-Modifiable. (Source: D.07-11-025, Attachment A) D.08-04-009].
FERC Standard of
Review; Mobile-
Sierra Waiver: (a) 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,whether proposed by a Party (to the extent
that any waiver in subsection (b) below is unenforceable or ineffective as
to such Party), a non-party or FERC acting sua sponte, shall solely 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) and clarified by 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 Public Utility Commission, 558
U.S. 527 (2010).
(b) In addition, and notwithstanding the foregoing subsection (a),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 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 subsection (b)
shall not apply, provided that, consistent with the foregoing subsection
(a), neither Party shall seek any such changes except solely under the
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"public interest" application of the "just and reasonable" standard of
review and otherwise as set forth in the foregoing section (a).
Forward Contract: This Confirmation constitutes a sale of a nonfinancial commodity for
deferred shipment or delivery that the parties intend to be physically
settled and is excluded from the term "swap" as defined in the
Commodity Exchange Act under 7 U.S.C. § 1a(47)and the regulations of
the Commodity Future Trading Commission and Securities and Exchange
Commission, with further reference to 77 Fed. Reg. 48233-35.
Amendments
To The Master
Agreement: Assignment.Section 14,Transfer of Interest in Agreement,of the WSPP
Agreement shall for purposes of this Confirmation be deleted in its
entirety and replaced with the following: "Neither Party shall transfer,
assign or sell its rights as set forth in this Confirmation,to any third party
without first obtaining the prior written consent of the other Party.
Notwithstanding the foregoing, no such consent shall be required to the
extent that the transfer or sale occurs (i) to an affiliate of a Party by
operation of law,through merger or acquisition, or as the result of the
sale or transfer of all or substantially all of the transferring Party's assets,
and the resulting entity's creditworthiness is equal to or higher than that
of such Party as of the Effective Date of this Confirmation, or(ii)the
obligations of such Affiliate are guaranteed by such Party or its
Guarantor, if any, in accordance with a guaranty agreement in form and
substance satisfactory to the other Party, and (iii)transfer or assign this
Confirmation is to any person or entity succeeding to all or substantially
all of the assets of such Party whose creditworthiness is equal to or
higher than that of such Party or its Guarantor, if any, as of the Effective
Date of this Confirmation."
Confidentiality.Section 30, Confidentiality,of the WSPP Agreement is
amended for purposes of this Confirmation by inserting at the end of
Section 30.1(6) prior to the semicolon the following: "or to Deliver RECs
pursuant to the requirements of WREGIS".
Definitions/
Interpretations: For purposes of the Confirmation,the following definitions and rules of
interpretations shall apply:
"Applicable Law" means all legally binding constitutions,treaties, statutes, laws, ordinances,
rules, regulations, orders, interpretations, permits,judgments, decrees, injunctions,writs and
orders or any Governmental Authority or arbitrator that apply to RPS or any one or both of the
Parties or the terms hereof.
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"CAISO" means the California ISO.
"CAISO Tariff" means the CAISO FERC Electric Tariff.
"Confidential Information" means all oral and written information exchanged between the
Parties with respect to the subject matter of this Agreement.The following information does
not constitute Confidential Information for purposes of this Agreement: (a) information that is
or becomes generally available to the public other than as a result of a disclosure by either
Party in violation of this Agreement; (b) information that was already known by either Party on
a non-confidential basis prior to this Agreement; and (c) information that becomes available to
either Party on a non-confidential basis from a source other than the other Party if such source
was not subject to any prohibition against disclosing the information to such Party.
"Green Attributes" means any and all credits, benefits,emissions reductions, offsets, and
allowances, howsoever entitled, attributable to the generation from the Generating Facilities,
and its avoided emission of pollutants. Green Attributes include but are not limited to RECs, 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, including but not
limited to 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 MWh basis and one Green Tag represents the
Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i)
any energy, capacity, reliability or other power attributes from the Generating Facilities, (ii)
production tax credits associated with the construction or operation of the Generating Facilities
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 Generating Facilities for compliance with local, state, or federal operating and/or
air quality permits. If the Generating Facilities are 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 Purchaser with sufficient Green
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Attributes to ensure that there are zero net emissions associated with the production of
electricity from the Generating Facilities.
"WECC means the Western Electricity Coordinating Council or its successor organizations.
"WREGIS" mean the Western Renewable Energy Generation Information System, or its
successor organization.
The Parties agree that the terms and conditions stated herein accurately reflect the agreement
reached by the Purchaser and Seller.
IN WITNESS WHEREOF,the Parties have signed the Confirmation effective as of the Effective
Date.
Northern California Power Agency City of Ukiah
Name:Ken C.Goeke Name: Sa a Sangiacomo
Title:Manager, Portfolio and Pool Administration Title: City Manager _ 1
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