Chp Rfo Ppa

ID #[Number], [Seller’s Name]

POWER PURCHASE AND SALE AGREEMENT

between

[BUYER’S NAME]

and

[SELLER’S NAME]

(ID #[Number])

Pro Forma Agreement for CHP Facilities Request for Offers Program

TERMS THAT ARE BOXED AND SHADED IN LIGHT YELLOW AND/OR BRACKETED AND IN BLUE FONT ARE EITHER BUYER COMMENTS OR GENERATING FACILITY-TYPE SPECIFIC COMMENTS THAT SHOULD BE REMOVED, ACCEPTED OR COMPLETED, AS APPLICABLE.

THIS FORM OF AGREEMENT IS BUYER’S PRO FORMA FOR THIS CHP RFO.

SELLER MAY, AT ITS OPTION, REVISE THIS AGREEMENT, WHICH REVISIONS ARE SUBJECT TO FURTHER NEGOTIATION AND BUYER’S ACCEPTANCE. BUYER ENCOURAGES SELLER TO MAKE REVISIONS TO THE TERMS OF THIS AGREEMENT TO THE EXTENT IT ADDS VALUE (INCLUDING ALTERNATIVE METHODS TO THOSE IN SECTION 1.02(f) THAT PROVIDE GHG SAVINGS FOR BUYER) TO SELLER’S OFFER.

ID #[Number], [Seller’s Name]

TABLE OF CONTENTS

LIST OF EXHIBITS iii

PREAMBLE 1

RECITALS 1

ARTICLE ONE: SPECIAL CONDITIONS 3

1.01 Term 3

1.02 Generating Facility 4

1.03 Delivery Point 7

1.04 Capacity Performance Requirements 7

1.05 Maintenance Outages; Major Overhaul 7

1.06 Power Product Prices; GHG Compliance Costs 8

1.07 Requirements Applicable Solely to New CHP Facilities, Repowered CHP Facilities, and Certain Expanded CHP Facilities 9

1.08 Scheduling Coordinator Election 10

1.09 Economic Curtailment Option 10

1.10 Power Rating 10

ARTICLE TWO: SELLER'S SATISFACTION OF OBLIGATIONS BEFORE THE TERM START DATE; TERMINATION; CPUC APPROVAL 11

2.01 Seller's Satisfaction of Obligations before the Term Start Date 11

2.02 Termination Rights of the Parties 12

2.03 Rights and Obligations Surviving Termination 12

2.04 CPUC Filing and Approval of this Agreement 13

ARTICLE THREE: SELLER'S OBLIGATIONS 15

3.01 Conveyance of the Product; Retained Benefits 15

3.02 Resource Adequacy Rulings 16

3.03 Site Control 17

3.04 Permits 17

3.05 Transmission 17

3.06 CAISO Relationship 18

3.07 Generating Facility Modifications 19

3.08 Metering 20

3.09 Telemetry System 22

3.10 Provision of Information 22

3.11 Progress Reporting 24

3.12 Fuel Supply 24

3.13 Capacity Demonstration Tests; Resource Adequacy Demonstrations 24

3.14 Operation and Record Keeping 25

3.15 Power Product Curtailments at Transmission Provider’s, CAISO’s or Buyer’s Request 27

3.16 Report of Lost Output 28

3.17 FERC Qualifying Cogeneration Facility Status 29

3.18 Notice of Cessation or Termination of Service Agreements 29

3.19 Buyer's Access Rights 30

3.20 Seller Financial Information 30

3.21 NERC Electric System Reliability Standards 33

3.22 Allocation of Availability Incentive Payments and Non-Availability Charges 34

3.23 Seller’s Reporting Requirements 34

ARTICLE FOUR: BUYER'S OBLIGATIONS 35

4.01 Obligation to Pay 35

4.02 Payment Adjustments 35

4.03 Payment Statement and Payment 36

4.04 GHG Compliance Costs 38

4.05 No Representation by Buyer 39

4.06 Buyer’s Responsibility 39

4.07 Buyer’s Reporting Requirements 39

ARTICLE FIVE: FORCE MAJEURE 40

5.01 No Default for Force Majeure 40

5.02 Requirements Applicable to the Claiming Party 40

5.03 Termination 40

ARTICLE SIX: EVENTS OF DEFAULT; REMEDIES 41

6.01 Events of Default 41

6.02 Early Termination 46

6.03 Termination Payment 46

ARTICLE SEVEN: LIMITATIONS OF LIABILITIES 48

ARTICLE EIGHT: GOVERNMENTAL CHARGES 50

8.01 Cooperation to Minimize Tax Liabilities 50

8.02 Governmental Charges 50

8.03 Providing Information to Taxing Governmental Authorities 50

ARTICLE NINE: MISCELLANEOUS 51

9.01 Representations, Warranties and Covenants 51

9.02 Additional Covenants by Seller 52

9.03 Indemnity 53

9.04 Assignment 55

9.05 Consent to Collateral Assignment 56

9.06 Governing Law and Jury Trial Waiver 59

9.07 Notices 59

9.08 General 59

9.09 Confidentiality 61

9.10 Insurance 63

9.11 Nondedication 65

9.12 Mobile Sierra 65

9.13 Seller Ownership and Control of Generating Facility 65

9.14 Simple Interest Payments 66

9.15 Payments 66

9.16 Provisional Relief 66

ARTICLE TEN: DISPUTE RESOLUTION 67

10.01 Dispute Resolution 67

10.02 Mediation 67

10.03 Arbitration 67

SIGNATURES 70

LIST OF EXHIBITS

A. Definitions

B. Generating Facility and Site Description

C. Capacity Demonstration Test for Firm Contract Capacity

D. Monthly Contract Payment Calculation

D-1. Force Majeure Credit Value

D-2. Transmission Curtailment Credit Value

D-3. Economic Curtailment Credit Value

E. Scheduling and Calculation of Maintenance Outage and Major Overhaul Credits

F. Requirements Applicable Solely to New CHP Facilities, Repowered CHP Facilities and Certain Expanded CHP Facilities

G. Scheduling Coordinator Services

H. Milestone Progress Reporting Form

I. Seller’s Forecasting Submittal and Accuracy Requirements

J. CAISO Charges

K. Scheduling and Delivery Deviation Adjustments

L. Physical Trade Settlement Amount

M. SC Trade Settlement Amount

N. Notice List

O. Form of Guaranty Agreement

P. Form of Letter of Credit

Q. Seller’s Milestone Schedule

R. Outage Schedule Submittal Requirements

S. Payment Adjustments if Buyer Assumes GHG Compliance Costs; GHG Reporting Requirements

T. QF Efficiency Monitoring Program – Cogeneration Data Reporting Form

U. Economic Curtailment Option for Negative Pricing in the Day-Ahead Market

iii

ID #[Number], [Seller’s Name]

POWER PURCHASE AND SALE AGREEMENT

between

[BUYER’S NAME]

and

[SELLER’S NAME]

(ID# [Number])

PREAMBLE

This Power Purchase and Sale Agreement by and between [Buyer’s name], a California corporation (“Buyer”), and [Seller’s name], a [Seller’s form of business entity and state of registration] (“Seller”), together with the exhibits, attachments, and any applicable referenced collateral agreement or similar arrangement between the Parties that is expressly incorporated into this Agreement by the Parties (collectively, this “Agreement”), is made, effective and binding as of [Date of execution] (the “Effective Date”).

Buyer and Seller are sometimes referred to in this Agreement individually as a “Party” and jointly as the “Parties.” Unless the context otherwise specifies or requires, initially capitalized terms used in this Agreement have the meanings set forth in Exhibit A.

RECITALS

A. On or about September 20, 2007, the CPUC issued Decision (“D.”) 07-09-040 (the “Decision”) which, among other things, directed Buyer to develop a form of a standard contract and offer such contract to qualifying facilities meeting the eligibility criteria set forth in the Decision.

B. Commencing in May 2009, Pacific Gas and Electric Company, San Diego Gas and Electric Company, Southern California Edison Company, the California Cogeneration Council, the Cogeneration Association of California, the Energy Producers and Users Coalition, the Independent Energy Producers Association, the Division of Ratepayer Advocates of the California Public Utilities Commission, and The Utility Reform Network (collectively, the “Settling Parties”) entered into CPUC-facilitated settlement negotiations in order to resolve certain outstanding issues among the Settling Parties, including the implementation of the Decision.

C. Pursuant to the settlement negotiations, the Settling Parties entered into that certain Settlement Agreement, dated [Date of Settlement Agreement] (the “Settlement Agreement”), which resolved certain issues pending in Rulemakings 99-11-022, 04-04-003 and 04-04-025.

D. The Settlement Agreement became effective on [___] (the “Settlement Effective Date”).

E. The Settling Parties, pursuant to the Settlement Agreement, established a request for offers program for eligible CHP Facilities and developed a pro forma agreement to be made available to such CHP Facilities as part of such request for offers program (the “CHP RFO Pro Forma”).

The Parties, intending to be legally bound, agree as follows:

Preamble; Recitals

Page 2

ID #[Number], [Seller’s Name]

ARTICLE One. SPECIAL CONDITIONS

{Buyer Comment: If the Term is greater than or equal to five years, before executing this Agreement, Seller must provide to Buyer documentation evidencing its compliance with the Greenhouse Gas Emissions Performance Standard set forth in D.07-01-039 and in subsequent CPUC rulings implementing D.07-01-039, and with any subsequent CPUC-established precondition to the execution of this Agreement, including any precondition set forth in the Settlement Agreement.

In accordance with Sections 7 and 8 of the Settlement Agreement, before executing this Agreement, Seller must provide to Buyer anticipated Generating Facility operations estimates in order for Buyer to count this Agreement towards Buyer’s GHG Emissions Reduction Target (as defined in the Settlement Agreement), which include reasonable estimates of (i) the total expected Useful Thermal Energy Output of the Generating Facility per Term Year, and (ii) the total expected electricity generation of the Generating Facility per Term Year. Buyer shall use such information as specified in Section 7 of the Settlement Agreement.}

1.01 Term.

(a) The term of this Agreement (the “Term”) commences on, or within 120 days before [Date]; provided, however, that Seller may change the date set forth in this Section 1.01(a) by providing Notice to Buyer at least one year before such date;

(b) Seller shall provide Buyer with 30 days advance Notice confirming the exact date on which the Term commences, which date must be within the 120-day period set forth in Section 1.01(a) (the “Term Start Date”);

(d) The Term ends [Number of months] months after the Term Start Date (the “Term End Date”); and

(e) Notwithstanding the proviso set forth in Section 1.01(a), the Term Start Date must occur within 60 months of CPUC Approval, subject to any extension of the Term Start Date as a result of a Force Majeure as to which Seller is the Claiming Party (subject to Section 5.03) and Section 4(c)(ii) of Exhibit F.

{Buyer Comment: Select this Section 1.01 if the Generating Facility is a New CHP Facility or a Repowered CHP Facility. Seller designates the Term Start Date and the Term End Date; provided, however, that the Term must be no more than 12 years.}

(d) The Term ends [Number of months] months after the Term Start Date (the “Term End Date”); and

(e) Notwithstanding the proviso set forth in Section 1.01(a), the Term Start Date must occur within 36 months of CPUC Approval, subject to any extension of the Term Start Date as a result of a Force Majeure as to which Seller is the Claiming Party (subject to Section 5.03) and Section 4(c)(ii) of Exhibit F.

{Buyer Comment: Select this Section 1.01 if the Generating Facility is an Expanded CHP Facility. Seller designates the Term Start Date and the Term End Date; provided, however, (a) the Term must be no more than seven years if Seller has elected in Section 1.02(a) not to comply with the credit and collateral obligations set forth in this Agreement with respect to such Expanded CHP Facility, and (b) no more than 12 years if the Generating Facility is an Expanded CHP Facility, and Seller has elected in Section 1.02(a) to comply with the credit and collateral requirements set forth in this Agreement with respect to such Expanded CHP Facility.}

(a) The term of this Agreement (the “Term”) commences on [Date] (the “Term Start Date”);

(b) The Term ends [Number of months] months after the Term Start Date (the “Term End Date”);

(c) Seller may change the Term Start Date set forth in this Section 1.01 by providing Notice to Buyer at least one year before such Term Start Date; and

(d) Notwithstanding Section 1.01(c), the Term Start Date must occur within 24 months of the Effective Date, subject to any extension of the Term Start Date as a result of a Force Majeure as to which Seller is the Claiming Party (subject to Section 5.03).

{Buyer Comment: Select this Section 1.01 if the Generating Facility is an Existing CHP Facility. Seller designates the Term Start Date and the Term End Date; provided, however, that the Term must be no more than seven years.}

1.02 Generating Facility.

(a) Name; Designation. The name of the Generating Facility is [Generating Facility name], which:

____ is a New CHP Facility;

____ is an Existing CHP Facility;

____ is or will be a Repowered CHP Facility on or before the Term Start Date;

____ is or will be an Expanded CHP Facility on or before the Term Start Date, which elects to comply with the credit and collateral requirements set forth in this Agreement; or

____ is or will be an Expanded CHP Facility on or before the Term Start Date, which elects not to comply with the credit and collateral requirements set forth in this Agreement.

(b) Location; Site. The Generating Facility is located at [Generating Facility address], and is further described in Exhibit B.

(c) CHP Facility Type. As of the Effective Date, the Generating Facility is a [“topping-cycle cogeneration facility”, as defined in 18 CFR Part 292, Section 292.202(d)] [“bottoming-cycle cogeneration facility”, as defined in 18 CFR Part 292, Section 292.202(e)].

(d) Contract Capacity. As set forth in the following table, Seller may elect (i) only Firm Contract Capacity, (ii) only As-Available Contract Capacity, or (iii) both Firm Contract Capacity and As-Available Contract Capacity:

Month / Monthly Firm Contract Capacity (kW) / As-Available Contract Capacity (kW) / Net Contract Capacity
(kW)
January / [___] / [___] / [___]
February / [___] / [___] / [___]
March / [___] / [___] / [___]
April / [___] / [___] / [___]
May / [___] / [___] / [___]
June / [___] / [___] / [___]
July / [___] / [___] / [___]
August / [___] / [___] / [___]
September / [___] / [___] / [___]
October / [___] / [___] / [___]
November / [___] / [___] / [___]
December / [___] / [___] / [___]

Firm Contract Capacity, As-Available Contract Capacity and Net Contract Capacity are subject to adjustment in accordance with Section 3.07(c) and, if the Generating Facility is (w) a New CHP Facility, (x) an Expanded CHP Facility, (y) a Repowered CHP Facility, or (z) as set forth in Section 5.2.4.4 of the Settlement Agreement, an Existing CHP Facility that is Operating in California but that has never entered into an agreement for the purchase and sale of electric energy with Buyer or any other California investor-owned utility, then, in each case, the Firm Contract Capacity, As-Available Contract Capacity and Net Contract Capacity are subject to adjustment in accordance with Section 3.13(b) and Exhibit C, as applicable.