Confidential Information
2006 Pro Forma Agreement, Revision #1
RENEWABLE POWER PURCHASE AND SALE AGREEMENT
between
SOUTHERN CALIFORNIA EDISON COMPANY
and
[SELLER’S NAME]
(QFID #[Number])
The contents of this document are subject to restrictions on disclosure as set forth herein.
Southern California Edison Confidential Information
QFID# [Number], [Seller’s Name] 2006 Pro Forma Agreement, Revision #1
TABLE OF CONTENTS
PREAMBLE 1
ARTICLE One. SPECIAL CONDITIONS 2
1.01 Generating Facility. 2
1.02 Startup Deadline. 2
1.03 Firm Operation Date. 3
1.04 Term. 3
1.05 Energy Price. 3
1.06 Performance Assurance Amount. 3
1.07 Seller’s Guarantor. 3
1.08 Seller’s Debt to Equity Ratio. 3
1.09 CAISO Change Cost Threshold Amount. 4
ARTICLE Two. TERM AND CONDITIONS PRECEDENT; TERMINATION 5
2.01 Effective Date and Term. 5
2.02 Obligations Prior to Commencement of the Term. 5
2.03 Conditions Precedent to Commencement of Term. 6
2.04 Termination Rights of the Parties. 7
2.05 Seller’s PGC Funding Termination Right. 9
2.06 Rights and Obligations Surviving Termination. 13
ARTICLE Three. SELLER’S OBLIGATIONS 16
3.01 Conveyance of Entire Output, Conveyance of Environmental Attributes and Capacity Attributes. 16
3.02 Resource Adequacy Benefits. 17
3.03 Permits and CAISO Agreements. 17
3.04 Development Security. 18
3.05 Seller’s Energy Delivery Performance Obligation. 23
3.06 Metering, Communications, Telemetry and Meteorological Station. 25
3.07 Site Control. 27
3.08 Site Location. 28
3.09 Design. 28
3.10 Operation and Record Keeping. 29
3.11 Obtaining Scheduling Coordinator Services. 31
3.12 Forecasting 32
3.13 Scheduled Outages. 32
3.14 Progress Reporting Toward Meeting Milestone Schedule. 33
3.15 Provision of Information. 33
3.16 SCE’s Access Rights. 35
3.17 Availability Guarantee and Obligation to Make Availability Guarantee Lost Production Payment. 36
3.18 Obtaining and Maintaining CEC Certification and Verification. 37
3.19 Notice of Cessation or Termination of Service Agreements. 37
3.20 Lost Output Report. 38
3.21 CAISO Charges, CAISO Sanctions and SCE Penalties . 39
3.22 Availability Report. 40
3.23 Seller’s Financial Information. 40
ARTICLE Four. SCE’S OBLIGATIONS 43
4.01 Obligation to Pay. 43
4.02 Payments and Adjustments. 43
4.03 Payment Statement and Payment. 44
4.04 Scheduling Coordinator. 47
4.05 CAISO Charges. 48
4.06 Interest Payments on Cash Deposits. 48
ARTICLE Five. FORCE MAJEURE 50
5.01 No Default for Force Majeure. 50
5.02 Requirements Applicable to the Claiming Party. 50
5.03 Startup Deadline Extension. 50
5.04 Firm Operation Date Extension. 51
5.05 Termination. 51
ARTICLE Six. EVENTS OF DEFAULT: REMEDIES 52
6.01 Events of Default. 52
6.02 Early Termination. 56
6.03 Termination Payment. 57
ARTICLE Seven. LIMITATIONS OF LIABILITIES 58
ARTICLE Eight. CREDIT AND COLLATERAL REQUIREMENTS 60
8.01 Financial Information. 60
8.02 Performance Assurance. 60
8.03 First Priority Security Interest in Cash or Cash Equivalent Collateral. 63
8.04 Subordinated Security Interests and Mortgage. 63
8.05 Credit and Collateral Covenants. 65
8.06 Waivers. 66
ARTICLE Nine. GOVERNMENTAL CHARGES 67
9.01 Cooperation to Minimize Tax Liabilities. 67
9.02 Governmental Charges. 67
9.03 Providing Information to Taxing Authorities. 67
ARTICLE Ten. MISCELLANEOUS 68
10.01 Representations and Warranties. 68
10.02 Additional Seller Representations, Warranties and Covenants. 69
10.03 Indemnity. 69
10.04 Assignment. 71
10.05 Consent to Collateral Assignment. 71
10.06 Abandonment. 73
10.07 Governing Law. 74
10.08 Notices. 74
10.09 General. 75
10.10 Confidentiality. 76
10.11 Insurance. 79
10.12 Nondedication. 80
10.13 Mobile Sierra. 80
10.14 Simple Interest Payments. 80
10.15 Payments. 80
ARTICLE Eleven. CHANGE IN ELECTRIC MARKET DESIGN 82
11.01 Changes Rendering the Agreement Incapable of Performance. 82
11.02 Changes Resulting in Costs or Benefits to Seller. 82
11.03 Procedure for Claiming an CAISO Change Cost Payment. 83
ARTICLE Twelve. MEDIATION AND ARBITRATION 86
12.01 Dispute Resolution. 86
12.02 Mediation. 86
12.03 Arbitration. 86
12.04 Arbitration Prior to Release of Deed of Trust. 88
12.05 Waivers. 89
SIGNATURES 90
The contents of this document are subject to restrictions on disclosure as set forth herein.
Table of Contents
i
Southern California Edison Confidential Information
QFID# [Number], [Seller’s Name] 2006 Pro Forma Agreement, Revision #1
LIST OF EXHIBITS
A. Definitions.
B. Generating Facility and Site Description.
C. Notice List.
D. Scheduling and Forecasting Requirements and Procedures.
E. Intentionally deleted
F. Energy Replacement Damage Amount.
G. Seller’s Milestone Schedule.
H. Milestone Progress Reporting Form.
I. Form of Guaranty Agreement.
J. Non-Disclosure Agreement.
K. Time of Delivery Periods and Energy Payment Allocation Factors.
L. Procedure for Partial or Full Return of Development Security.
M. Seller’s Estimate of Lost Output.
N. Form of Letter of Credit.
O. Availability Guarantee Lost Production Payment.
P. CAISO Change Cost Payment Calculation.
Q. SCE Penalties and CAISO Sanctions
{SCE Comment: For Intermittent only}.
CAISO Charges and CAISO Sanctions
{SCE Comment: For Base Load only}.
R. [Form of Pledge and Security Agreement] [Form of Mortgage] [Form of Deed of Trust].
S. Actual Availability Report.
T. Meteorological Station Specifications.
The contents of this document are subject to restrictions on disclosure as set forth herein.
List of Exhibits
vii
Southern California Edison Confidential Information
QFID# [Number], [Seller’s Name] 2006 Pro Forma Agreement, Revision #1
RENEWABLE POWER PURCHASE AND SALE AGREEMENT
between
SOUTHERN CALIFORNIA EDISON COMPANY
and
[SELLER’S NAME]
(QFID #[Number])
This Renewable Power Purchase and Sale Agreement, together with the exhibits, attachments, and any referenced collateral agreement or similar arrangement between the Parties (collectively, the “Agreement”) is made and effective as of the following date: [Date of Execution] (“Effective Date”).
This Agreement is entered into between:
(i) Southern California Edison Company (“SCE”), a California corporation, whose principal place of business is at 2244 Walnut Grove Avenue, Rosemead, California 91770, and
(ii) [Seller’s Name] (“Seller”), a [Seller’s business registration], whose principal place of business is at [Seller place of business].
SCE and Seller are sometimes referred to herein individually as a “Party” and jointly as “Parties.” Capitalized terms in this Agreement shall have the meanings set forth in ExhibitA.
Seller is willing to construct, own, and Operate an electric energy Generating Facility which qualifies as of the Effective Date as an eligible renewable energy resource under the State of California Renewable Portfolio Standard Program as codified at California Public Utilities Code Section399.11, et seq., and to sell all electric energy produced by the Generating Facility as specified herein together with all Environmental Attributes, Capacity Attributes and Resource Adequacy Benefits to SCE; and
SCE is willing to purchase all electric energy delivered by Seller to SCE generated by such Generating Facility together with all Environmental Attributes, Capacity Attributes and Resource Adequacy Benefits pursuant to the terms and conditions set forth herein.
The contents of this document are subject to restrictions on disclosure as set forth herein.
Preamble
Page 1 of 1
Southern California Edison Confidential Information
QFID# [Number], [Seller’s Name] 2006 Pro Forma Agreement, Revision #1
ARTICLE One. SPECIAL CONDITIONS
1.01 Generating Facility.
(a) Name: [Generating Facility Name].
(b) Location of Site: [Generating Facility Address],
as further described in ExhibitB.
(c) Eligible Renewable Energy Resource Type: [Generation Technology].
(d) Contract Capacity: [Number] MW.
The Contract Capacity may be reduced as set forth in Section3.04(f).
(e) Expected Annual Net Energy Production.
The Expected Annual Net Energy Production for each Term Year shall be the value calculated in accordance with the following formula:
EXPECTED ANNUAL NET ENERGY PRODUCTION, in kWh = A x B x C
Where:
A = Contract Capacity in kW.
B = [Number] % capacity factor.
C = 8,760 hours per year.
1.02 Startup Deadline.
The Startup Deadline shall be [Date], or such other date as provided in this Agreement or as may be agreed to in a writing signed by both Parties.
The Startup Deadline shall be extended on a day-for-day basis for any delay in enactment of the Federal Production Tax Credit Legislation beyond [Date], but may in no event be later than [Date];
provided that, in no event shall the Startup Deadline be later than [Date].
{SCE Comment: For Generating Facilities that qualify for PTC.}
1.03 Firm Operation Date.
The Firm Operation Date shall be the date that is six (6) months after Initial Operation, plus any additional days for Force Majeure as provided in Section5.04, or as may be agreed to in a writing signed by both Parties.
1.04 Term.
The Term shall commence as set forth in Section2.03(a) and shall end on the last day of the calendar month which is [number of months in Term (#)] months ([number of years in Term (#)] years) from the month of the Firm Operation Date.
{SCE Comment: Sellers may select Term lengths of either ten (10), fifteen (15) or twenty (20) years}
1.05 Energy Price.
The Energy Price shall be equal to the lesser of:
(a) Market Price Referent; or
(b) The fixed price of [Dollar amount text] dollars ($[Number]) per MWh.
1.06 Performance Assurance Amount.
[Dollar amount text] dollars ($[Number]) per kW of Contract Capacity.
1.07 Seller’s Guarantor.
(a) Guarantor: [Guarantor Name, if any]
(b) Guaranty Amount: [Dollar amount text] dollars ($[Number])
(c) Cross Default Amount: [$______, if any]
1.08 Seller’s Debt to Equity Ratio.
[number to be inserted]
1.09 CAISO Change Cost Threshold Amount.
The CAISO Change Cost Threshold Amount shall be the value calculated in accordance with the following formula:
CAISO CHANGE COST THRESHOLD AMOUNT = A x B x C
Where A = Expected Annual Net Energy Production set forth in
Section1.01(e), in kWh.
B = Energy Price specified in Section1.05, in $/kWh
(i.e., $/MWh/1000).
C = Two percent (2%).
{SCE Comment: For Solar Only.}
CAISO CHANGE COST THRESHOLD AMOUNT = A x B x C
Where A = Expected Annual Net Energy Production set forth in Section1.01(e), in kWh.
B = Generation-weighted average of the time-differentiated Energy Price (i.e., generation-weighted average of “D x E” below) based on Metered Amounts for all Settlement Intervals in the Term Year in $/kWh.
C = Two percent (2%).
D = Energy Price specified in Section 1.05, in $/kWh (i.e., $/MWh/1000).
E = Energy Payment Allocation Factor, set forth in ExhibitK, applicable to the Settlement Interval being calculated.
*** End of ARTICLE ONE ***
The contents of this document are subject to restrictions on disclosure as set forth herein.
Article One Special Conditions
Page 4 of 4
Southern California Edison Confidential Information
QFID# [Number], [Seller’s Name] 2006 Pro Forma Agreement, Revision #1
ARTICLE Two. TERM AND CONDITIONS PRECEDENT; TERMINATION
2.01 Effective Date and Term.
This Agreement shall become effective on the Effective Date.
2.02 Obligations Prior to Commencement of the Term.
(a) CPUC Filing and Approval of this Agreement.
Within forty five (45) days after the Effective Date, SCE shall file with the CPUC the appropriate request for CPUC Approval.
SCE shall seek such approval expeditiously, including promptly responding to any requests for information related to the request for approval from the CPUC.
Seller shall use commercially reasonable efforts to support SCE in obtaining CPUC Approval.
SCE shall have no obligation to seek rehearing or to appeal a CPUC decision which fails to approve this Agreement or which contains findings required for CPUC Approval with conditions or modifications unacceptable to either Party.
(b) Seller’s Interconnection Application.
Seller shall exercise diligence in obtaining a FERC-accepted interconnection agreement and any transmission, distribution or other service agreement required to transmit electric energy from the Generating Facility to the Delivery Point.
(c) Seller’s Regulatory and Governmental Filings.
(i) Within one hundred eighty (180) days after the Effective Date, Seller shall file:
(1) An application or other appropriate request with the CEC for CEC Certification and Verification for the Generating Facility; and
(2) All applications or other appropriate requests with the proper authorities for all other Permits.
(ii) Seller shall expeditiously seek CEC Certification and Verification and all Permits, including promptly responding to any requests for information from the requesting authority.
2.03 Conditions Precedent to Commencement of Term.
(a) Commencement of Term.
The Term shall commence upon Initial Operation (as defined below).
(b) Initial Operation.
Initial operation of the Generating Facility (“Initial Operation”) shall be deemed to have been achieved on the date selected by Seller (the “Selected Date”) to begin Forecasting and delivering Product to SCE.
Seller shall provide at least three (3) Business Days advance Notice to SCE of the Selected Date.
The Selected Date shall be no later than
sixty (60) days from the first date that the Generating Facility operates in parallel with the applicable Transmission Provider’s electric system.
{SCE Comment: Base Load only.}
one hundred twenty (120) days from the first date that the Generating Facility operates in parallel with the applicable Transmission Provider’s electric system.
{SCE Comment: Intermittent only.}
In addition, prior to the Selected Date:
(i) SCE shall have obtained or waived CPUC Approval, as provided herein;
(ii) Seller shall have demonstrated to SCE’s reasonable satisfaction that Seller has executed all necessary Transmission Provider and CAISO agreements;
(iii) Seller shall have obtained CEC Certification and Verification;
(iv) Seller shall have obtained all necessary Permits;
(v) Seller shall have demonstrated to SCE’s reasonable satisfaction that Seller has complied with its obligations with respect to the CAISO Approved Meter as set forth in Section3.06(a);
(vi) SCE shall have been authorized by the CAISO to Schedule the electric energy produced by the Generating Facility with the CAISO;
(vii) Seller shall have posted with SCE the Performance Assurance required under Sections1.06 and 8.02;
(viii) SCE and Seller shall have executed all Security Documents required by Section8.04;
(ix) Seller shall have furnished to SCE the insurance documents required under Section10.11(b);
(x) The Generating Facility shall be Operating in parallel with the applicable Transmission Provider’s electric system;
(xi) Seller shall be Forecasting and delivering electric energy to SCE at the Delivery Point; and
(xii) Seller shall have installed and placed in operation the stand-alone meteorological station required under Section3.06(d).