ATTACHMENT C- REQUIRED CONTRACT AGREEMENT
cOUNTERpARTY
and
power authority of the state of new york
Renewable Energy Attribute Purchase Agreement
This Agreement (“Agreement”) is entered into this ____day of ___________ 200x, by and between COUNTERPARTY, with a principal place of business at FULL ADDRESS (“Seller”), and Power Authority of the State of New York, a corporate municipal instrumentality of the State of New York, with a principal place of business at 30 South Pearl Street, Albany, New York 12207 (“NYPA”). Hereinafter, Seller and NYPA shall each be referred to individually as a “Party” and, collectively, as the “Parties”.
WHEREAS, Seller has access to “Renewable Energy Attributes” associated with “Renewable Energy Source(s)”; and
WHEREAS, NYPA provides electricity to certain governmental customers located in and about the New York City area; and
WHEREAS, such customers have requested NYPA to procure for them Renewable Energy Attributes; and
WHEREAS, to assist its customers, NYPA desires to purchase Renewable Energy Attributes from Seller for resale to its customers, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, and in consideration of the mutual covenants and obligations contained herein, the Parties hereto agree as follows:
“Renewable Energy Attributes” means any and all credits (including renewable energy credits), benefits, emissions reductions, offsets and allowances of any nature whatsoever and however entitled, attributable to a Renewable Generator, relating to the quantity of megawatt hours (MWh) delivered by such Renewable Generator, including: (i) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO), other pollutants or particulates that are now or may in the future be regulated under the pollution control laws of the United States or any state or political subdivision thereof; (ii) any avoided emissions of carbon dioxide (CO2), methane (CHI) and any other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, Northeast Governors Regional Greenhouse Gas Initiative or other standard-setting entity with respect to any relevant market to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; and (iii) all reporting rights to these avoided emissions, including those rights known as “Green Tag Reporting Rights” that may be available from a legally-constituted or designated authority pursuant to which the purchaser may be entitled to report the ownership of accumulated usage of energy in compliance with Federal or state law, if applicable, and to a Federal or state agency or any other party at such purchaser’s discretion, and include without limitation those 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 any international or foreign emissions trading program. The definition of “Renewable Energy Attributes” does not include the Federal renewable electricity production credit, as provided in 26 U.S.C.§ 45, or any successor thereto.
2. Price
(a) The purchase price shall include all customs duties and charges and be net, F.O.B. destination any point in NYISO’s territory. The price shall be fixed firm and shall represent only the cost of the procurement of the Renewable Energy Attributes. The price is to be in dollars per MWh associated with any transaction and is NOT to include charges for energy or other related capacity, transmission or ancillary services.
(b) All Renewable Energy Credits, to the extent such credits exist or arise, resulting from or associated with the Renewable Energy Attributes purchased hereunder, shall be provided to NYPA.
(c) Seller’s obligation to provide Renewable Energy Attributes is on a reasonable commercial best efforts basis. Seller shall not be liable for damages if, notwithstanding its reasonable commercial best efforts, it fails to deliver all the Renewable Energy Attributes set forth on Exhibit A. However, with respect to any instance when Seller fails to deliver all the Renewable Energy Attributes set forth on Exhibit A, Seller shall give NYPA notice thereof at least six months prior to the applicable Conversion Transaction Date shown in Exhibit A.
3. Delivery
The electrical output equivalent to that of the Renewable Generator(s) associated with the Renewable Energy Attributes provided hereunder will be delivered into the Spot Market administered by the NYISO. In a separate Conversion Transaction, the Renewable Energy Attributes will be transferred to NYPA.
Seller represents and warrants that it has the exclusive right to provide the Renewable Energy Attributes to be provided to NYPA under this Agreement; that it has the right to arrange the transfer of ownership of such Renewable Energy Attributes to NYPA free and clear of all claims, liens, security interests and encumbrances; and that after transfer of ownership to NYPA, NYPA shall have the unrestricted right to transfer ownership of the Renewable Energy Attributes to a third party.
i. Each invoice submitted and requesting payment for the delivery of the rights to Renewable Energy Attributes pursuant to this Agreement shall be accompanied by a certification substantially in the form included in Exhibit B from Seller which will identify the number and vintage of all Renewable Energy Attributes sold to NYPA as set forth in such invoice. The certification shall be accompanied by a representation and warranty substantially in the form included in Exhibit B to the invoiced Renewable Energy Attributes.
ii. In the event the NYS PSC solely, or in conjunction with others, creates, sanctions, adopts or begins participation in a Generation Tracking System in the New York Control Area (“NYCA”) during the term of this Agreement, each REC associated with each applicable Attribute purchased hereunder must be transferred to an account designated by NYPA.
iii. For Renewable Energy Attributes provided hereunder from Renewable Generator(s) located outside the New York Control Area, but located in a control area with compatible environmental attribute accounting system such as NE-GIS, Seller shall provide verification and transfer to NYPA through the export provisions of NE-GIS and New York Public Service Commission rules for Conversion Transaction(s).
Seller shall submit its invoice(s) for payment to NYPA at the address set forth below. Invoices shall be payable by NYPA in accordance with the provisions of its Prompt Payment Policy (Appendix 1) attached hereto. NYPA shall not be required to pay Seller unless and until NYPA has received the certification(s) described in Section 5(i) above.
The original and two (2) copies of all invoices shall be submitted to:
New York Power Authority
P.O. Box 437
White Plains, NY 10602-0437
Attn: Accounts Payable
Copy: _____________________
All invoices shall reference Agreement No. _____
Seller shall not invoice NYPA for Renewable Energy Attributes before delivery into the Spot Market administered by the NYISO. The parties agree that payment may be made by NYPA prior to the actual completion of the Conversion Transaction for the applicable period. In the event the New York Public Service Commission determines that Seller did not successfully complete Conversion Transactions associated with certifications previously invoiced, Seller shall, within fifteen(15) days of notification, complete Conversion Transactions from a Renewable Energy Source(s) or provide a refund of the invoice amount to NYPA.
COUNTERPARTY
ADDRESS
Attn: ______________
Tel: _______________
Fax: _______________
Notice given to NYPA shall be addressed to:
Power Authority of the State of New York
123 Main Street
White Plains, New York 10601
Attn: Jordan Brandeis
Tel: 914-681-6403
Fax:914-390-8156
9. Term and Termination
(a) This Agreement shall be effective as of the date first written above and, unless extended by mutual agreement of the Parties, shall terminate when the last Attribute(s) scheduled to be sold hereunder are transferred to NYPA. Notwithstanding termination, those obligations intended to survive termination, including but not limited to Sections 1(b), 4, 7, and 12 shall survive termination.
(b) If either Party defaults in its obligations under this Agreement and such default continues uncured for a period of 15 days after the defaulting Party receives notice of the default, the non-defaulting Party may terminate this Agreement by providing written notice to the defaulting Party. Termination shall be effective upon receipt of such notice.
10. Entire Agreement
This Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof. All other letters, agreements or communications whatsoever, whether oral or written with respect to the subject matter contained herein are superseded by the Agreement and will be without effect. Exhibits A and B are incorporated into and form a part of this Agreement. Exhibit C is attached hereto for illustrative purposes only.
11. Governing Law/Venue
This Agreement shall be governed by and construed under the laws of the State of New York without reference to its conflicts of law principles. Any action at law or in equity, or other judicial proceeding, for the enforcement of this Agreement or any of its provisions must be brought in and maintained only in a State court located in Albany County, New York.
Each Party will treat and hold as confidential all of the information received from the other Party that is marked “confidential,” and shall refrain from using any of such confidential information (“Confidential Information”) except in connection with this Agreement undertaken hereunder or except as set forth below.
i. In the event that the Party receiving the information (the “Receiving Party”) is requested or required (by oral question or request for information or documents in any legal proceeding or arbitration, legislative hearing, interrogatory, subpoena, civil investigative demand, or similar process or pursuant to applicable law, rule or regulation, including the New York Freedom of Information Law and the Open Meeting Law) to disclose any Confidential Information, the Receiving Party will notify the Party which provided the Confidential Information (the “Disclosing Party”) promptly of the request or requirement so that the Disclosing Party may seek an appropriate protective order or waive compliance with the provisions of this Section 12. If, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party is, on the advice of counsel, required to disclose any Confidential Information to any tribunal or to disclose any Confidential Information to any third party in compliance with any applicable freedom of information or open meeting law or other applicable law or regulation, the Receiving Party may disclose the Confidential Information to such tribunal or such third party; provided, however, that the Receiving Party shall use its commercially reasonable efforts to obtain, at the request of the Disclosing Party and at the Disclosing Party’s cost, an order or other assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed as the Disclosing Party shall designate.
ii. The obligations set forth in subsection i above shall not apply to any Confidential Information with respect to which the Receiving Party can demonstrate was:
(a) in its possession prior to the time of disclosure by the Disclosing Party and was not, to the knowledge of the Receiving Party, subject to a confidentiality obligation;
(b) in the public domain at the time of disclosure, or subsequently became part of the public domain through no fault of the Receiving Party; or
(c) received from a third party who, to the Receiving Party’s knowledge, was not subject to a confidentiality agreement or other confidentiality or fiduciary obligation regarding the information.
iii. NYPA may provide Confidential Information to any of its customers intended by NYPA to receive any of the Renewable Energy Renewable Energy Attributes, provided that such customers agree in writing to protect the Confidential Information from unwarranted disclosure to third parties as provided in this Section 12.
iv. Notwithstanding anything set forth herein, nothing in this Agreement shall be interpreted as precluding either Party from reporting or disclosing any information with the prior written consent of the Disclosing Party, or to its Affiliates, attorneys, financial advisors and accountants who are assisting either Party in connection with this Agreement or its operations, financing or reporting obligations.
IN WITNESS HEREOF, the Parties, agreeing to be bound, have executed this Agreement by their authorized representatives as of the date first set forth above.
COUNTERPARTY
______________________________________
Name:
Title:
Power Authority of the
State of New York
_____________________________________
Name:
Title: