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HomeMy WebLinkAboutAgreement A-21-263 with Forefront Power.pdfAMENDED & RESTATED ENERGY SERVICES AGREEMENT – ENERGY STORAGE FRESNO COUNTY – JUVENILE JUSTICE CAMPUS This Amended & Restated Energy Services Agreement (“Agreement”) is made and entered into as of this ____ day of July, 2021 (or, if later, the latest date of a Party’s execution and delivery to the other Party of this Agreement, the “Effective Date”), between FFP BTM SOLAR, LLC, a Delaware limited liability company (“ForeFront Power”), and the County of Fresno, a political subdivision of the State of California (“Purchaser”; and, together with ForeFront Power, each, a “Party” and together, the “Parties”). RECITALS A.WHEREAS, the Parties entered into that Energy Services Agreement – Energy Storage, dated February 4, 2020 (the “Original Special Conditions”), and the Parties wish to amend and restate the Original Special Conditions in its entirety; B.Purchaser desires that ForeFront Power install and operate an energy storage system at the Premises (as hereafter defined) for the purpose of providing Energy Services (as hereafter defined), and ForeFront Power is willing to do the same; C.ForeFront Power and Purchaser acknowledge those certain General Terms and Conditions of Energy Services Agreement between FFP BTM Solar, LLC and Purchaser dated as of February 4th, 2020 (“General Conditions”), which are incorporated by reference as set forth herein; and D.The terms and conditions of this Energy Services Agreement, excluding the General Conditions incorporated herein, constitute the “Special Conditions” referred to in the General Conditions. In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1.Incorporation of General Conditions. The General Conditions are incorporated herein as if set forth in their entirety. 2.Initial Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for ten (10) years from the Commercial Operation Date (as defined in the General Conditions), unless and until extended or terminated earlier pursuant to the provisions of this Agreement (the “Initial Term”). After the Initial Term, the Agreement may be renewed for additional annual terms (each, a “Renewal Term”) so long as the Agreement(s) for any systems co -located on the Premises remain in effect. At least one hundred and eighty (180) days, but no more than three hundred and sixty -five (365) days, prior to the expiration of the Initial Term or any Renewal Term, ForeFront Power shall give written notice to Purchaser of the availability of a Renewal Term. Purchaser shall have sixty (60) days from receipt of that notice to agree in writing to continuation of the Agreement for such Renewal Term. Pricing and any Minimum Guaranteed Demand Reduction for such Renewal Term shall be as is mutually agreed by the Parties at such time. Absent Purchaser’s written agreement to such Renewal Term, this Agreement shall expire on the last day of the Initial Term or any prior Renewal Term, as applicable. The Initial Term and the subsequent Renewal Term(s), if any, are referred to collectively as the “Term”. 3.Schedules. The following Schedules hereto are hereby incorporated into this Agreement: Schedule 1 Description of the Premises, System and Scope of Work Schedule 2 Intentionally Omitted 13th Agreement No. 21-263 2 Schedule 3 Early Termination Fee Schedule 4 Delivery of Energy Services and Performance Guarantee Schedule 5 Notice Information Schedule 6 Site-Specific Information and Requirements Schedule 7 Specific Items for Scope of Work Schedule 8 System Layout 4.Privacy. Purchaser acknowledges that the System may collect certain information about Purchaser’s electricity usage and the System performance. Such information, which shall be de-identified, may be stored and processed in the United States or any other country in which ForeFront Power or its third-party service providers, or its or their respective affiliates, subsidiaries, or service providers, maintain facilities. Purchaser consents to any such transfer of information outside of Purchaser’s country. 5.Milestone Dates. 5.1 The Guaranteed Construction Start Date is December 31, 2022, assuming that the Local Electric Utility study results are received by March 31, 2022. If the Local Electrical Utility study results are received later than March 31, 2022, the Guaranteed Constru ction Start Date shall be extended by the number of days that the Local Electrical Utility study results are delayed (e.g., if the Local Electrical Utility study results are delayed by 90 days, the Guaranteed Start Date shall be extended to 90 days from December 31, 2022). An additional 60-day extension may be allowed at the reasonable discretion of Purchaser. 5.2 The Guaranteed Commercial Operation Date is 240 days from the Construction Start Date. 6.Energy Services Payment. Purchaser shall pay to Provider a monthly payment (the “Energy Services Payment”) for the Energy Services provided by the System during each calendar month of the Term, equal to the following annual payment multiplied by the Energy Storage System Size in kilowatts AC divided by twelve: Energy Storage System Size (kW AC) Energy Services Payment ($/year/kW AC for each Term Year) 1,000 $73.87 7.Additional System Uses. Purchaser acknowledges and agrees that during the Term, ForeFront Power may, with Purchaser’s consent, not to be unreasonably withheld, conditioned or delayed, use the System to provide additional services to third parties, including without limitation an electric utility and/or the electrical grid operator, provided that no such additional use shall in any way alter, reduce or eliminate ForeFront Power’s obligations under this Agreement. 8.Electronic Signatures. The parties agree that this Amended and Restated Agreement may be executed by electronic signature as provided in this section. An “electronic signature” means any symbol or process intended by an individual signing this First Amendment to represent their signature, including but not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an electronically scanned and transmitted (for example by PDF document) of a handwritten signature. Each electronic signature affixed or attached to this First Amendment (1) is deemed equivalent to a valid original handwritten signature of the person signing this First Amendment for all purposes, including but not limited to evidentiary proof in any administrative or judicial 3 proceeding, and (2) has the same force and effect as the valid original handwritten signature of that person. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with sect ion 1633.1). Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that representation. This Amended and Restated Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Amended and Restated Agreement with an original handwritten signature. 9.Amendment. This Amended & Restated Agreement hereby amends and restates and supersedes the Original Special Conditions in its entirety. IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, Forefront Power and Purchaser have executed this Agreement as of the Effective Date. FOREFRONT POWER: FFP BTM Solar, LLC -''1 . ,,-1z... B . '~ C. ~-~~- y:-';'--~--------- Name: Michael Smith Title : President 4 COUNTY OF FRESNO Steve Br ndau , ha1rman of the Board of Supervisors of the County of Fresno ATTEST: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno , State of California By d.M ', c..,~ Deput FOR ACCOUNTING USE ONLY: FUND: 1045 SUBCLASS : 10000 ORG: 8935 ACCOUNT 7431 5 SCHEDULES I.Schedule 1: Description of the Premises, System and Subsidy A.Premises The Premises is within the area delineated in Schedule 8, below, for the System, also identified herein as the Energy Storage System. Site diagram attached: Yes ✓No B.Description of Energy Storage System “System” means the battery or other technology system and related components to be installed by or for ForeFront Power at the Premises. Energy Storage System Size: 1,000 kW, 1914 kWh (this is an estimate (and not a guarantee) of the System size; ForeFront Power may update the System Size prior to the Commercial Operation Date. C.Anticipated Subsidy or Rebate $0.22 / Watt-hour SGIP Step 4 II.Schedule 2 – Intentionally Omitted. 6 III.Schedule 3 – Early Termination Fee The Early Termination Fee with respect to the System under this Agreement shall be calculated using the following: Early Termination Fee ($) = Applicable $/Wac value (from tables below) * Energy Storage System Size (set in Schedule 1, ) * 1000 as indicated in column 1b and 2b Early Termination Occurs in Year: Column 1a Early Termination Fee where Purchaser does not take Title to the System ($/Wac including costs of removal) *** Column 1b Expected Termination Fee based on System Size** / *** 1* $2.19 $2,192,848 2 $1.61 $1,611,476 3 $1.49 $1,494,286 4 $1.37 $1,373,538 5 $1.25 $1,249,127 6 $1.12 $1,120,763 7 $1.10 $1,101,372 8 $1.08 $1,084,257 9 $1.07 $1,065,947 10 $1.05 $1,046,352 Purchase Date Occurs on the 1st day following: (Each “Anniversary” below shall refer to the anniversary of the Commercial Operation Date) Column 2a Early Termination Fee where Purchaser takes Title to the System ($/Wac, does not include costs of removal) *** Column 2b Expected Termination Fee based on System Size** / *** -- -- -- -- 5th Anniversary $0.62 $620,763 6th Anniversary $0.60 $601,372 7th Anniversary $0.58 $584,257 8th Anniversary $0.57 $565,947 9th Anniversary $0.55 $546,352 Thereafter Fair Market Value Fair Market Value At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0). *Includes Early Termination prior to the Commercial Operation Date. **Based on System Size as of the Effective Date. System Size (and therefore Columns 1b and 2b will change upon System Size change). *** The Early Termination Fee for Column 1 shall be calculated in accordance with and subject to Sections 2.1(b), 11.2(b), and 11.3 of the General Conditions, as applicable. The Early Termin ation Fee for Column 2 shall be calculated in accordance with and subject to Section 2.2 of the General Conditions. IV.Schedule 4 – Delivery of Energy Services 4.1 Energy Services. Provider shall operate the System to, when feasible, (i) reduce Purchaser’s peak electric energy demand from the Local Electric Utility (“Demand Reduction Services”); and (ii) charge the System 7 during Off-Peak Hours and dispatch stored electric energy to Purchaser during Peak Hours (“Energy Arbitrage Services,” and collectively with Demand Reduction Services, the “Energy Services”). (a)Demand Charge Management Guarantee. Provider shall perform the Demand Reduction Services such that the Purchaser receives demand charge reductions at a minimum as follows for each Term Year (such amount, the “Minimum Guaranteed Demand Reduction”), for the applicable rate tariff: Term Year Minimum Guaranteed Demand Reduction (kW AC) – GF E-20 Primary Option R Term Year Minimum Guaranteed Demand Reduction (kW AC) ) – GF E-20 Primary Option R 1 2,733 6 2,733 2 2,733 7 2,733 3 2,733 8 2,733 4 2,733 9 2,733 5 2,733 10 2,733 Term Year Minimum Guaranteed Demand Reduction (kW AC) – TOU 2.0 B-20 Primary Option R Term Year Minimum Guaranteed Demand Reduction (kW AC) ) – TOU 2.0 B-20 Primary Option R 1 1,870 6 1,870 2 1,870 7 1,870 3 1,870 8 1,870 4 1,870 9 1,870 5 1,870 10 1,870 (b)Energy Arbitrage Guarantee. Provider shall perform the Energy Arbitrage Services such that the Purchaser achieves energy arbitrage at a minimum as follows for each Term Year (such amount, the “Minimum Guaranteed Energy Arbitrage”) for the applicable rate tariff: Term Year Minimum Energy Arbitrage (kWh) – GF E-20 Primary Option R Term Year Minimum Energy Arbitrage (kWh) – GF E-20 Primary Option R 1 411,928 6 411,928 2 411,928 7 411,928 3 411,928 8 411,928 4 411,928 9 411,928 5 411,928 10 411,928 Term Year Minimum Energy Arbitrage (kWh) – TOU 2.0 B-20 Primary Option R Term Year Minimum Energy Arbitrage (kWh) – TOU 2.0 B-20 Primary Option R 1 319,803 6 319,803 2 319,803 7 319,803 3 319,803 8 319,803 4 319,803 9 319,803 5 319,803 10 319,803 8 (c)Lost Savings. For each Term Year, if ForeFront Power does not provide at least the Minimum Guaranteed Demand Reduction or the Minimum Guaranteed Energy Arbitrage, ForeFront Power shall credit Purchaser an amount equal to Purchaser’s Lost Savings on an invoice or invoices within ninety (90) days after the end of such period, up to the Lost Savings Cap. Upon ForeFront Power’s payment of any Lost Savings, ForeFront Power shall be deemed to have met the Minimum Guaranteed Demand Reduction and Minimum Guaranteed Energy Arbitrage for each Term Year. “ (d)The “Demand Reduction Guarantee Rate” or “DR” and the “Energy Arbitrage Guarantee Rate” or “ER” for each Term Year are as follows for the applicable rate tariff: Term Year Demand Reduction Guarantee Rate ($/kW AC) – GF E- 20 Primary Option R Term Year Energy Arbitrage Guarantee Rate ($/kWh) – GF E-20 Primary Option R 1 $22.98 1 $0.027 2 $22.98 2 $0.027 3 $22.98 3 $0.027 4 $22.98 4 $0.027 5 $22.98 5 $0.027 6 $22.98 6 $0.027 7 $22.98 7 $0.027 8 $22.98 8 $0.027 9 $22.98 9 $0.027 10 $22.98 10 $0.027 Term Year Demand Reduction Guarantee Rate ($/kW AC) – TOU 2.0 B-20 Primary Option R Term Year Energy Arbitrage Guarantee Rate ($/kWh) – TOU 2.0 B-20 Primary Option R 1 $23.03 1 $0.10 2 $23.03 2 $0.10 3 $23.03 3 $0.10 4 $23.03 4 $0.10 5 $23.03 5 $0.10 6 $23.03 6 $0.10 7 $23.03 7 $0.10 8 $23.03 8 $0.10 9 $23.03 9 $0.10 10 $23.03 10 $0.10 (e)The Parties acknowledge and agree that Purchaser’s purchase under this Agreement does not include any right or title to seek any capacity payments that may be attributable to the System that the Local Electric Utility or CAISO may be required to pay in connection with the availability of capacity of the System, and that all such rights are reserved and retained by ForeFront Power, subject to Applicable Law. 4.2 The Minimum Guaranteed Demand Reduction and the Minimum Guaranteed Energy Arbitrage shall, for each Term Year, be reduced to the extent ForeFront Power’s ability or cost to provide the Energy Services are adversely affected by any of the following: 9 (a) Any act or omission by Purchaser affects the System in any way that impairs its ability to safely store and discharge energy or ForeFront Power’s ability to monitor or control the System. (b) Theft, destruction or damage affects the System in any way that impairs its ability to safely store and discharge energy or ForeFront Power’s ability to monitor or control the System, except to the extent caused by the manufacturer of the System or ForeFront Power. (c) A Disruption Period occurs. (d) A Purchaser Default, including ForeFront Power suspending the Energy Services as a result of a Purchaser Default. (e) Purchaser fails to provide access to the Premises or the System as required by Section 7.2(d) of the General Terms and Conditions. (f) A Force Majeure Event. (g) Purchaser elects to have the Local Electric Utility apply a different tariff to the Premises that has an adverse impact on ForeFront Power’s ability to reduce Purchaser’s peak demand from the Local Electric Utility. (h) Any material deviation in the Purchaser’s load profile at the Premises from the Base Year Load not resulting from the Energy Services or ForeFront Power’s acts or omissions. On each invoice submitted by ForeFront Power to Purchaser, ForeFront Power shall, if applicable, include a statement of the amount by which the Minimum Guaranteed Demand Reduction and Minimum Guaranteed Energy Arbitrage will be reduced pursuant to this Section 4.2. If Purchaser does not dispute the amount of such reduction within thirty (30) days after its receipt of such invoice, Purchaser will be deemed to have accepted such reduction. 4.3 The Local Electric Utility Tariff means the retail tariff pursuant to which the Local Electric Utili ty provides electric distribution and interconnection services to Purchaser at the Premises . As of the date below, the Local Electric Utility Tariff applicable to the Premises is as follows: Date Local Electric Utility Tariff Effective Date PG&E E-20 Primary Commercial Operation Date PG&E E-20 Primary Option R (2020 GF) If at any time after the date above, Provider determines that an alternative Local Electric Utility Tariff is more advantageous for Purchaser, Provider may , with Purchaser’s consent, change the Local Electric Utility Tariff set forth above to such alternative Local Electric Utility Tariff for the Premises. If there is a change in the Local Electric Utility Tariff applicable to the Premises that has a material impact on ForeFront Power’s ability to provide the Energy Services or evaluate compliance with the performance guarantee in this Schedule 4, then upon written notice from ForeFront Power to Purchaser, the Parties shall negotiate in good faith to make the minimum changes to this Agreement necessary to preserve to the maximum extent possible the benefits, burdens and obligations set forth in this Agreement as of the Effective Date; provided, any change in the rates or other costs applicable to the Premises under the Local Electric Utility Tariff will not constitute a change that will cause this Section 4.3 to be applicable. Notwithstanding the foregoing, ForeFront Power shall continue to provide the Energy Management Services, and Purchaser shall continue to make the Energy Services Payments, while the Parties negotiate the changes to this Agreement contemplated in this Section 4.3. 10 4.4 Additional Defined Terms. “Actual Annual Demand Reduction” or “AADR” means the sum of all Actual Demand Reductions during each Term Year, calculated as follows: AADRTerm Year = ADRBilling Period 1 + ADRBilling Period 2…+ADRBilling Period 24 “Actual Demand Reduction” or “ADR” means the sum of the Peak Demand Reductions occurring during Demand Periods for which a Demand Charge is charged within a Billing Period, calculated as follows: ADRBilling Period = PDRDemand Period 1 + PDRDemand Period 2…+ PDRDemand Period Final “Actual Annual Shifted Energy” or “AASE” means the sum of all Actual Shifted Energy during each Term Year. “Actual Shifted Energy” or “ASE” means the sum of all electric energy (in kWh) discharged during Peak Hours. “Actual System Savings” means the savings associated with the AADR and AASE, which is the gross aggregate savings that accrues to Purchaser’s Local Electric Utility bill resulting from the operation of the System, calculated based on Purchaser’s load and the Energy Services metered data, and shall include, but is not limited to, changes in demand charges, energy and utility usage taxes. “Base Year Load” means the electrical load of the Premises during the 12 months from March 2019 to March 2020, as recorded by the Local Electric Utility meter(s). “Billing Period(s)” means each of the consecutive time periods applicable to Purchaser during which the Local Electric Utility assesses and bills demand charges for the Premises. “Demand Charge” means a charge by the Local Electric Utility generally assessed for a given period based upon Purchaser’s maximum demand (on a per kW basis) occurring during such period, generally charged as a fixed rate calculated with reference to such maximum demand. “Demand Period” means each period within a Billing Period for which a Demand Charge is or could be assessed by the Local Electric Utility. The Premises may have one or more Demand Periods per Billing Period, including, if applicable, Demand Periods referred to as “peak”, “part-peak”, “off-peak”, “non-coincident”, or “on- peak”. “Demand Reduction Guarantee Rate” or “DR” has meaning set forth in Section 4.1(d) of this Schedule 4. “Energy Arbitrage Guarantee Rate” or “ER” has the meaning set forth in Section 4.1(d) of this Schedule 4. “Local Electric Utility Tariff” has meaning set forth in Section 4.3 of this Schedule 4. “Lost Savings” means the dollar amount Provider will credit to Purchaser in accordance with the terms of this Agreement for any Term Year for which MGDR exceeds AADR or MGEA exceeds ASE, calculated as follows: Lost Savings = (MGDR – AADR) x DR; or Lost Savings = (MGEA – AASE) x ER “Lost Savings Cap” means the maximum amount of Lost Savings that Provider will credit to Purchaser in accordance with the terms of this Agreement for any Term Year, calculated as the difference between the Energy Services Payments for the relevant Term Year and the Actual System Savings. The Lost Savings Cap will be deemed to be $0 to the extent the Actual Systems Savings exceeds the Energy Services Payments for the relevant Term Year. 11 “Minimum Guaranteed Energy Arbitrage” or “MGEA” has the meaning set forth in Section 4.1(b) of this Schedule 4. “Minimum Guaranteed Demand Reduction” or “MGDR” has the meaning set forth in Section 4.1(a) of this Schedule 4. “Off-Peak Hours” means 6pm – 12:00pm, Pacific time. “Peak Demand Level” or “PDL” means the maximum electricity service demand level (in kW AC) in a Demand Period for the Premises, as billed by the Local Electric Utility. “Peak Demand Reduction” or “PDR” means the amount of the reduction in maximum electricity service demand level (in kW AC) in a Demand Period for the Premises, calculated as True Peak Load minus Peak Demand Level. “Peak Hours” means 12:01pm – 6:00pm, Pacific time. “True Peak Load” means the maximum electricity service demand level in a Demand Period for the Premises, which demand may be supplied by the Storage System, the Local Electric Utility, on -site electricity generation (if any), or other distributed energy resource. The True Peak Load is calculated as the highest combined total of the electricity sources concurrently providing electric energy to the Premises during a month. 4.5 System Size. To the extent there is a change in System size, Provider shall be required to obtain Purchaser consent to such change. If Purchaser consents to such change in System size, then the Parties agree to amend the Agreement accordingly. Purchaser’s County Administrative Officer or its Director of ISD/Chief Information Officer are authorized to amend this Agreement for the sole purpose of reflecting the change in System size. The Guaranteed Commercial Operation Date and the Guaranteed Construction Start Date shall be extended on a day for day basis for delays in obtaining any such consent and/or amendment. V.Schedule 5 – Notice Information Purchaser: County of Fresno Director of Internal Services/ Chief Information Officer Internal Services Department 333 W. Pontiac Way Clovis, CA 93612 With a copy to Facility Services Manager 4590 E. Kings Canyon Road Fresno, CA 93702 ForeFront Power: FFP BTM Solar, LLC c/o Forefront Power, LLC Attn: Director, Energy Services 100 Montgomery St., Suite 725 San Francisco, CA 94104 With a copy to FFP BTM Solar, LLC c/o Forefront Power, LLC Attn: Legal Department 100 Montgomery St., Suite 725 San Francisco, CA 94104 Email: FPLegal@forefrontpower.com Financing Party: [To be provided by ForeFront Power when known] 12 VI.Schedule 6 – Site Specific Information and Requirements In accordance with Section 7.2(f) of the General Terms and Conditions, the following information references any known restrictions on the use of the Premises for the construction, ownership, use and operation of the System, including any land use restrictions, known underground structures or equipment, o r limitations arising under permits or applicable law, as well as any additional Environmental Documents, reports or studies in the possession or control of the Purchaser, which shall each have been delivered to ForeFront Power as of the Effective Date: Type of Information Information Delivered as of the Effective Date Phase I environmental site assessment Not Applicable Reports on site sampling (soil or groundwater) Not Applicable Land use restrictions imposed by governmental authorities Not Applicable Lease restrictions on proposed solar installation Not Applicable Cleanup plan, corrective action plan or permits applicable to Premises Not Applicable Open spill reports or unresolved release reports Not Applicable Known underground storage tanks, foundations, utilities Not Applicable Utility easements or public rights of way Not Applicable Completed closure or “cap” on buried waste or other materials Not Applicable Systems in place for extracting and collecting methane, groundwater or leachate Not Applicable Subject to the control of a trustee, group of entities or entities other than landlord and/or Purchaser Not Applicable 13 VII.Schedule 7 – Specific Items for Scope of Work 1.ForeFront Power Responsibilities: 1.1.ForeFront Power intends to interconnect the System to Purchaser-owned 12KV service conductors at a mutually agreeable location. ForeFront Power assumes that existing the 12KV conductors and service equipment are sufficiently capable of accepting the additional electrical load of the System. ForeFront Power shall not bear responsibility for any required upgrades to the pre-existing electrical system. 1.2.ForeFront Power shall be responsible for securing, maintaining and paying all fees associated with all Governmental Approvals (as defined in Section 1.1 of the General Terms and Conditions) necessary for the installation, operation, and maintenance of the System, including but not limited to permitting and approval as may be required by the Authority Having Jurisdiction (AHJ). 1.3.ForeFront Power shall be responsible for all grading, paving, or other Site preparation necessary in order to install the System, and for the paym ent of all costs associated with such Site preparation. 14 VIII.Schedule 8 – System Layout The System shall be placed be within the area of the Premises shown for such System below. The Purchaser and ForeFront Power will work cooperatively to designate the specific placement of the electrical lines, meters, and transformer, within the area of the Premises. For the avoidance of doubt, the Premises is limited to the area of green shading below.