Standard contract terms and conditions that “may not be modified” per CPUC Decision 0711025, and CPUC Decision 10-03-021, as modified by CPUC Decision 11-01-025, are shown in shaded text.
CONFIRMATION AGREEMENT under the
EEI MASTER POWER PURCHASE AND SALE AGREEMENT
Between
PACIFIC GAS AND ELECTRIC COMPANY
(as “Buyer”)
and
(as “Seller”)
MASTER POWER PURCHASE AND SALE AGREEMENT
CONFIRMATION AGREEMENT
This confirmation agreement (“Confirmation”) confirms the transaction (“Transaction”) between [______] (“Seller” or “Party A”) and Pacific Gas and Electric Company (“Buyer” or “Party B”), each individually a “Party” and together the “Parties”, dated as of the latest date of signature below (“Execution Date”). This Transaction is governed by the EEI Master Power Purchase and Sale Agreement between the Parties, effective as of [______] along with any amendments and annexes that exist as of the Execution Date of this Confirmation (collectively, the “EEI Master Agreement”). The EEI Master Agreement and this Confirmation shall be collectively referred to herein as “Agreement.” Capitalized terms used but not otherwise defined in this Confirmation have the meanings ascribed to them in the EEI Master Agreement; provided, that to the extent that this Confirmation is inconsistent with any provision of the EEI Master Agreement, this Confirmation shall govern the rights and obligations of the Parties hereunder with respect to this Transaction. For the avoidance of doubt, the Parties intend that, for all purposes, this Transaction will be treated separately from any other transactions between the Parties under the EEI Master Agreement between them with respect to events of default and termination rights as well as netting and set-off rights among transactions between the Parties. As an example, (i) an Event of Default under the Agreement with respect to any other transaction will not be deemed an Event of Default with respect to this Transaction and so will not give rise to any termination rights with respect to this Transaction, (ii) an Event of Default with respect to this Transaction will not be deemed an Event of Default with respect to any other transaction and so this Transaction may be terminated even though other transactions will not be terminated, and (iii) any Termination Payment that might be owed with respect to this Transaction will not be the result of netting or set-off with any Settlement Amount or set-off with any amounts owed by one Party to the other Party with respect to any other transactions or other agreements between the Parties.
1.Product. For purposes of this Confirmation the “Product” is WSPP Schedule C Firm Energy (“Energy”) along with the total expected volume of Green Attributes produced in that Contract Year generated by the Project.
2.Contract Quantity. [Drafting Note: Sellers of Product on a Unit Contingent basis (i.e. 100% or a fixed % of the total output of a single ERR) use the first bracketed paragraph. Sellers providing a Pooled Resource (i.e. one or more ERRs which may be used to provide energy for the transaction in a fixed amount per month that may come from any resource(s) in the pool) must update the definition of Project accordingly and use the second bracketed paragraph. All Sellers use Special Provisions 2.1 through 2.4 as noted below.]
[[______] MWh per Contract Year (“Contract Quantity”), which is [all of] the metered generation from the Project; provided that Seller may deliver to Buyer all Product created, generated or produced by the Project in each calendar year up to a maximum of one hundred and twenty percent (120%) of the Contract Quantity (“Maximum Amount”).]
[[______] MWh per Contract Year (“Contract Quantity”), which is all of the metered generation from the Project and shall equal the amount stated in Special Provision 3.1 below.]
2.1For each Contract Year in the Delivery Term, Seller shall be required to deliver to Buyer no less than the Minimum Amount. The “Minimum Amount” means an amount of Renewable Energy Credits delivered by Seller to Buyer as measured in MWhs equal to the product of (x) and (y), where (x) is [Pooled Resources to delete: eighty percent (80%) of] the amount of Renewable Energy Credits corresponding to the Contract Quantity, and (y) is the difference between (I) and (II), with the resulting difference divided by (I), where (I) is the number of hours in the applicable Contract Year and (II) is the aggregate number of Seller Excuse Hours in the applicable Contract Year. Minimum Amount is described by the following formula:
[Unit Contingent Sellers use: Minimum Amount = (80% * amount of Renewable Energy Credits corresponding to the Contract Quantity in MWh) * [(Hrs in Contract Year – Seller Excuse Hrs) / Hrs in Contract Year]
[Pooled Resource Sellers use: Minimum Amount = (amount of Renewable Energy Credits corresponding to the Contract Quantity in MWh) * [(Hrs in Contract Year – Seller Excuse Hrs) / Hrs in Contract Year]
2.2If Seller has a Minimum Failure, then within forty-five (45) days after the last day of the last month of a Contract Year, Buyer shall promptly notify Seller in writing of such failure and the amount of the damages, which Seller shall pay within sixty (60) days of receipt of the Notice. Such damages shall be calculated as the product of (x) and (y), where (x) is the Minimum Amount less the quantity of Renewable Energy Credits delivered to Buyer and (y) is Fifty U.S. Dollars ($50.00).
2.3The Parties agree that the damages sustained by Buyer associated with Seller’s failure to achieve the Minimum Amount would be difficult or impossible to determine, or that obtaining an adequate remedy would be unreasonably time consuming or expensive and therefore agree that Seller shall pay the damages in Special Provision 2.2 to Buyer as liquidated damages.
2.4If Seller does not pay the damages in Special Provision 2.2 due to a Minimum Failure within the sixty (60) day time period, Buyer may, at its option, declare an Event of Default pursuant to Article 5 of the EEI Master Agreement. Following Seller’s failure to pay the damages in Special Provision 2.2, if Buyer does not (a) notify Seller of the Minimum Failure or (b) after notifying Seller of the Minimum Failure, declare an Event of Default, then Buyer shall be deemed to have waived its right to declare an Event of Default based on Seller’s failure with respect to the Contract Year which served as the basis for the notice of Minimum Failure, damages due to the Minimum Failure, or default; provided however, that Buyer shall be entitled to payment of the damages for the Minimum Failure as long as Buyer has provided notice to Seller of such failure pursuant to Special Provision 2.2.
2.5Performance Excuses.
(a)Seller Excuses. Seller shall be excused from delivering the Product during Seller Excuse Hours.
(b)Buyer Excuses. The performance of Buyer to receive and/or pay for the Product shall be excused only (i) during periods of Force Majeure as defined in the EEI Master Agreement or Uncontrollable Force as provided in Section 10 of the WSPP Agreement, or (ii) by Seller’s failure to perform.
2.6Transaction. In no event shall Seller have the right to procure the Green Attributes from sources other than the Project for sale or delivery to Buyer under this Agreement. Buyer shall have no obligation to receive or purchase Green Attributes from Seller (a) produced, created or generated prior to the Effective Date or (b) in an amount greater than the [Maximum Amount] [Contract Quantity]. [Drafting Note: Pooled Resources to delete Maximum Amount]
3.Delivery Rate. The amount of Energy delivered in a Contract Year to the Delivery Point shall match the total expected volume of Green Attributes produced in that same Contract Year as generated by the Project. Seller shall deliver in each quarter the amount of Product in MWs (“A” or “Quarterly Quantity”) as set forth in the below chart (“Delivery Rate”) during each day of a Contract Year during the Delivery Term and shall ensure that the amount of Energy (as measured in MWh) delivered to the Delivery Point during a Contract Year matches the amount of Green Attributes generated by the Project during such Contract Year. [Drafting Note: Sellers to insert the number of MWs which will be delivered to Buyer in each quarter for On-Peak and Off-Peak. Such Quarterly Quantity shall be the same for all quarters, On-Peak and Off-Peak, except for Q2 Off-Peak. Deliveries will not be accepted for Q2 Off-Peak. If Seller is providing different amounts per Contract Year then Seller should replicate the chart below and note the Contract Year.]
Delivery Rate for Contract Year[s] 201[__]Q1 / Q2 / Q3 / Q4
On-Peak / A / A / A / A
Off-Peak / A / Not applicable / A / A
3.1Quarterly Quantities.
[Pooled Resource Sellers use: The Contract Quantity shall equal (x) the sum of the Quarterly Quantities multiplied by (y) 8,760 hours minus 952 (which corresponds to the number of hours in a quarter of Off-Peak hours); as pro-rated in the first Contract Year based on the Initial Delivery Date to reflect the actual number of calendar days in the first Contract Year. During leap years, (y) shall equal 7,832 hours.]
[Unit Contingent Sellers use: The Quarterly Quantity may be expressed in increments of five (5) MW such that the sum of Quarterly Quantities in a Contract Year may exceed the Contract Quantity for that Contract Year; provided that the product of (x) and (y) shall not be less than the Contract Quantity and shall not exceed the Maximum Amount, where (x) equals the sum of the Quarterly Quantities and (y) equals 8,760 hours minus 952 (which corresponds to the number of hours in a quarter of Off-Peak hours); as pro-rated in the first Contract Year based on the Initial Delivery Date to reflect the actual number of calendar days in the first Contract Year. During leap years, (y) shall equal 7,832 hours.]
3.2[Pooled Resource Sellers to delete Special Provision 3.2]Physical Year-End True-Ups. Seller may revise the Delivery Rate twice during each Contract Year of the Delivery Term to ensure that the amount of Energy delivered during a Contract Year matches the amount of Green Attributes produced by the Project during such Contract Year as follows:
(a)Upon Notice to Buyer on October 15 of a Contract Year, Seller may adjust the Delivery Rate for the months of November (November 1 – 30) and December (December 1-31) either up or down.
(i)If decreasing the Delivery Rate, Seller shall first reduce the Delivery Rate in the Off-Peak hours in 5 MW decrements for both November and December until the Delivery Rate reaches zero MW. If necessary, Seller shall then decrease the Delivery Rate in the On-Peak hours in 5 MW increments for both November and December until the Delivery Rate reaches zero MW.
(ii)If increasing the Delivery Rate, Seller shall first increase the Delivery Rate in the On-Peak hours in 5 MW increments for both November and December up to 50% of the Quarterly Quantity in Special Provision 3 (“Incremental On-Peak Quantity”). If a further increase in the Delivery Rate is required, Seller shall then increase the Delivery Rate in the Off-Peak hours in 5 MW increments for both November and December up to 50% of the Quarterly Quantity in Special Provision 3 (“Incremental Off-Peak Quantity”). If further increases in the Delivery Rate are required, Seller shall repeat the procedure of first increasing the Delivery Rate in the On-Peak hours in 5 MW increments up to the Incremental On-Peak Quantity, followed by increasing the Delivery Rate in the Off-Peak hours in 5 MW increments up to the Incremental Off-Peak Quantity
(b)Upon Notice to Buyer on November 15, Seller may adjust the Delivery Rate for December 1 through and including December 31 either up or down. Such adjustment may be in addition to an adjustment pursuant to Special Provision 3.2(a).
(i)If decreasing the Delivery Rate, Seller shall first reduce the Delivery Rate in the Off-Peak hours in 5 MW decrements for December until the Deliver Rate reaches zero MW. If necessary, Seller shall then decrease the Delivery Rate in the On-Peak hours in 5 MW increments for December until the Delivery Rate reaches zero MW.
(ii)If increasing the Delivery Rate, Seller shall first increase the Delivery Rate in the On-Peak hours in 5 MW increments for December up to the Incremental On-Peak Quantity. If a further increase in the Delivery Rate is required, Seller shall then increase the Delivery Rate in the Off-Peak hours in 5 MW increments for December up to the Incremental Off-Peak Quantity. If further increases in the Delivery Rate are required, the Seller shall repeat the procedure of first increasing the Delivery Rate in the On-Peak hours in 5 MW increments up to the Incremental On-Peak Quantity, followed by increasing the Delivery Rate in the Off-Peak hours in 5 MW increments up to the Incremental Off-Peak Quantity.
4.Delivery Point. The Delivery Point for Product shall be COB.
5.Delivery Term. As used herein, “Delivery Term” shall mean the period of time beginning on the first date [on or after the Commercial Operation Date] [Existing Facilities: Delete bracketed text] that Seller delivers Product to Buyer from the Project which qualifies and is certified as an ERR (“Initial Delivery Date”) and continuing until all of the Product created, generated, or produced from the Project with the Vintages [insert year(s) of generation] (as well as Vintage [insert following year of generation] to the extent Seller claims an FM Extension that delays the creation, generation or production of Product in the final Contract Year until [insert same year]) [Existing Facilities: Delete parenthetical] has been delivered by Seller to Buyer during the period of [insert number of years] Contract Years from the Initial Delivery Date, unless terminated earlier as provided by the terms of this Agreement; provided, however ,that in no event shall the Delivery Term exceed five years. The Initial Delivery Date shall occur as soon as practicable once all of the following have been satisfied: (i) [Seller shall have achieved the Commercial Operation Date;] [Existing Facilities: Delete bracketed text] [(ii)] all of the applicable Conditions Precedent have been satisfied or waived in writing, [and] [(iii)] Buyer shall have received and accepted the Delivery Term Security in accordance with the relevant provisions of this Agreement, as applicable; [and] [(iv)] Seller shall have obtained the requisite CEC Certification and Verification for the Project.
5.1Term; Binding Nature.
(a)Term. The term of the Confirmation shall commence upon the satisfaction or waiver of the Conditions Precedent set forth in Special Provision 16 and shall remain in effect until the conclusion of the Delivery Term, unless terminated sooner pursuant to the Agreement (the “Term”); provided that this Agreement shall thereafter remain in effect until the Parties have fulfilled all obligations with respect to the Transaction, including, payment in full of amounts due for the Product delivered prior to the end of the Term, the Settlement Amount, or other damages and the undrawn portion of the Performance Assurance is released and/or returned as applicable (the “Satisfaction Date”).
(b)This Agreement shall be effective and binding as of the Execution Date only to the extent required to give full effect to, and enforce, the rights and obligations of the Parties under the following Special Provisions: 5.1 (Term); [5.2(a)(iii)(New Generation Facility)][Existing Facilities to delete bracketed text]; 16 (Conditions Precedent); 16.3 (Failure to Meet All Conditions Precedent); 10 (Seller’s Representations and Warranties) (except with respect to Special Provisions 10.2, 10.6, 10.7 and 10.8); 13.1, 13.2(a), 13.2(b)(i), 13.2(c), and 13.3 through 13.10 (Performance Assurance); 14 (Events of Default) (except with respect to 14.1(b); 15.2 (Confidentiality); 17 (Definitions); 18 (Assignment); 19 (Governing Law); 20 (Counterparts); and under the following Sections of the EEI Master Agreement as they apply to this Agreement and as such provisions may have been modified by the Parties pursuant to the negotiated terms of the EEI Master Agreement: Article 1, 2.1, 2.2, 5.1(a), 5.1(b) and 5.1(c) only with respect to the Special Provisions or Sections identified in this Special Provision 5.1, 5.1(d) through (g), 5.4 through 5.7, Article 6, 7.1, 8.1(b) through (e), 8.2(b) through (e), 8.3, 10.2(i), (iv) through (ix), (xi), and (xii), 10.4, 10.7, 10.8, [and] 10.10 [and the Collateral Annex]. This Agreement shall be fully binding and effective as of the Effective Date.
5.2[Drafting Note: Existing Facilities: Delete Special Provision 5.2]New Generation Facility.
(a)Seller, at no cost to Buyer, shall be responsible to:
(i)Design and construct the Project.
(ii)Acquire all Government Approvals and other approvals necessary for the construction, operation, and maintenance of the Project.
(iii)Within fifteen (15) days after the close of each month from the first month following the Execution Date until the Commercial Operation Date, provide to Buyer a Monthly Progress Report substantially in the form provided in Appendix I and agree to regularly scheduled meetings between representatives of Buyer and Seller to review such monthly reports and discuss Seller’s construction progress and the anticipated Commercial Operation Date and Initial Delivery Date. The Monthly Progress Report shall identify the Milestones and indicate whether Seller has met or is on target to meet such Milestones.
(b)Buyer shall have the right, but not the obligation, to inspect the Project or the Project’s construction site or on-site Seller data and information pertaining to the Project during business hours upon reasonable notice.
(c)Construction Milestones.
(i)Milestones. The Parties agree time is of the essence in regards to the Transaction. Seller shall provide Buyer with any requested documentation to support the achievement of certain milestones for the construction of the Project as set forth in Appendix II hereto (“Milestones”) within ten (10) Business Days of receipt of such request by Seller.
(ii)Construction Start Date. Seller shall provide Buyer with a written certification substantially in the form set forth in Appendix III within ten (10) Business Days of delivering a Notice to Proceed to the EPC Contractor for the Project.
(iii)Guaranteed Commercial Operation Date. Seller shall have demonstrated Commercial Operation no later than twelve (12) calendar months after the Effective Date (the “Guaranteed Commercial Operation Date”); provided that the Guaranteed Commercial Operation Date may be extended on a day for day basis for not more than three hundred sixty (360) days in the event of Force Majeure (“FM Extension”), provided that Seller works diligently to resolve the effect of the Force Majeure and provides evidence of its efforts promptly to Buyer upon Buyer’s written request. If Seller claims an FM Extension, Seller shall provide Buyer with sixty (60) days Notice prior to the original date of the Guaranteed Commercial Operation Date, which Notice must include information necessary for Buyer to verify the length and qualification of the extension; provided that if sixty (60) days in impracticable or impossible, Seller shall provide Notice as soon as possible thereafter.