HomeMy WebLinkAboutFinal-Staff-Report-ID-3159_System-Capacity-Sales-Agreement-with-Nextera
City of Palo Alto (ID # 3159)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 10/1/2012
Summary Title: System Capacity Sales Agreement with Nextera
Title: Adoption of a Resolution Authorizing the City Manager to Execute an
Agreement for the Sale of System Resource Adequacy Electricity Capacity to
NextEra Energy Power Marketing, LLC, for Calendar Year 2013
From: City Manager
Lead Department: Utilities
Recommendation
Staff recommends that the City Council adopt the attached resolution, authorizing the City
Manager, or his designee, to execute an agreement for the sale of System Resource Adequacy
Capacity to NextEra Energy Power Marketing, LLC coming from a portion of the City’s system
resource adequacy capacity rights from the Calaveras Hydroelectric Project (Calaveras) for the
months of May 2013 through September 2013.
Executive Summary
The City and other Northern California Power Agency (NCPA) members jointly own the
Calaveras project, which provides 250 megawatts (MW) of capacity. The City’s share in
Calaveras is roughly 23% of the project or 57 MW. Calaveras provides value to the City through
the generation of carbon-free electricity and through its ability to provide ancillary services and
system resource adequacy capacity products (system capacity) to meet load requirements,
which are normally in excess of the City’s requirements. NCPA manages Calaveras within the
month to extract the most value for all of its owners, however, NCPA does not have the ability
to sell products associated with Calaveras for terms greater than one month. Palo Alto,
however, retains the right to sell certain products associated with Calaveras for terms that are
greater than one month. NextEra, like the City, has an obligation to carry system capacity to
meet certain load requirements and to meet its requirements, NextEra Energy Power
Marketing has offered to buy 10 to 56 MW of capacity from the City for the months of May
2013 through September 2013. The system capacity is in excess of the City’s and other NCPA
members’ needs and, if sold to NextEra, would provide a one-time revenue to the City’s Electric
Fund of approximately $364,000.
Discussion
Since 2008 the California Independent System Operator (CAISO) has allocated responsibility to
load serving entities to maintain sufficient generation capacity for transmission grid reliability.
Like all load serving entities, the City is required on both on an annual and monthly basis to
demonstrate its ability to cover 115% of its monthly peak capacity with qualifying system
capacity resources. For 2013, the City is able to fully meet both the annual and monthly system
capacity requirement through several of its resources and is projected to be surplus in all
months.
On September 13, 2012, NextEra Energy Power Marketing provided an unsolicited offer to City
staff to purchase a portion of the City’s excess system capacity related to the Calaveras project
at a price of $2,000 per megawatt-month (MW-month) for varying quantities as shown in
Table 1. The price of $2,000 per MW-month represents a high price relative to market price
indicatives obtained by staff and NCPA and is higher than the NCPA Commission-approved-
price of $1,250 per MW-month for system capacity transactions between NCPA members.
Table 1: System Capacity Volumes and Revenue from NextEra Transaction for 2013
Sales
Volume
(MW)
Price
($/MW-month)
Revenue
($000)
May 10.0 2,000 20
June 40.0 2,000 80
July 56.0 2,000 112
August 56.0 2,000 112
September 20.0 2,000 40
Total 182 2,000 364
As the system capacity is surplus to the City’s needs, the transaction will not require that staff
replace the capacity to meet the City’s requirements. The City’s system capacity resources
compared to the system capacity requirements are illustrated in Figure 1.
Figure 1: Palo Alto’s 2013 System Capacity Balance and NextEra Transaction Volumes
Under the City’s Energy Risk Management Policy, the City Manager has the authority to enter
into contracts for electric commodity purchases and sales for terms of up to three years with
counterparties with whom the City has an existing Electric Master Agreement. Additionally,
under the Palo Alto Municipal Code (Section 2.30.210), the City Manager has authority to enter
into wholesale commodity transactions for a maximum annual transaction amount of $250,000.
The City does not have an Electric Master Agreement with NextEra Energy Power Marketing
and the sales transaction exceeds the City Manager’s transaction authority under the Municipal
Code. In order to meet the CAISO’s deadline of October 2012 for load serving entities to
demonstrate their ability to meet the compliance requirements, staff is requesting Council’s
authorization to execute the transaction under the Western States Power Pool (WSPP)
agreement, subject to the requirements of the Palo Alto Municipal Code (Section 2.30.340) for
contracts for wholesale utility commodities. A draft of the transaction confirmation is attached
and linked is the WSPP agreement http://www.wspp.org/current_effective_agreement.php.
Resource Impact
Without this transaction, resource adequacy capacity purchases were expected to cost the City
approximately $2.0 million in calendar year 2013. Net revenue received through this
transaction would reduce this cost estimate by $364,000.
Policy Implications
This recommendation is consistent with the Council-approved Utilities Strategic Plan to ensure
a high level of system reliability in a cost-effective manner and to maximize the value of existing
generation assets.
Environmental Review
Support of the recommendation to adopt a resolution approving the NextEra Energy Power
Marketing resource system capacity sales agreement does not constitute a project for the
purposes of the California Environmental Quality Act.
Attachments:
Attachment A: RESO NextEra Energy Power Marketing LLC System RA Sale (PDF)
Attachment B: Draft System Capacity Sale Agreement to NextEra (PDF)
Prepared By: Monica Padilla, Sr. Resource Planner
Department Head: Valerie Fong, Director
City Manager Approval: ____________________________________
James Keene, City Manager
*NOT YET APPROVED*
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Resolution No. _____
Resolution of the Council of the City of Palo Alto Approving the Sale
of System Resource Adequacy Electricity Capacity to NextEra Energy Power
Marketing, LLC, for Calendar Year 2013
A. The California Public Utilities Commission (“CPUC”) adopted a Resource
Adequacy (“RA”) program to ensure the reliability of electric service in California by requiring all
Load Serving Entities (“LSEs”) to file a resource adequacy plan with the California Independent
System Operator (“CAISO”), demonstrating sufficient system resource adequacy electricity
capacity resources (“System Capacity”), including reserves needed to serve its aggregate system
load on a monthly basis.
B. The City of Palo Alto (“City”), as an LSE, jointly built and owns with other
Northern California Power Agency (“NCPA”) members the Calaveras Hydroelectric Project
(“Calaveras”) located in Calaveras County, California. Calaveras is a 250 MW power plant, of
which the City’s ownership share is 57 MW. Calaveras is capable of producing electricity,
ancillary service products and system RA Capacity.
C. The City has sufficient system RA Capacity to meet its current load obligations on
an annual and monthly basis and in all months has excess system RA Capacity, which may be
attributed to Calaveras.
D. NextEra Energy Power Marketing, LLC (“NextEra”) desires to enter into a
contract to purchase from the City a portion of the City’s excess System Capacity associated
with Calaveras in quantities ranging from 10 MW to 56 MW for the months of May through
September 2013 at a price of $2 per kilowatt-month.
E. The City and NextEra are both members of Western State Power Pool (“WSPP”)
and therefore may use the WSPP agreement to engage in electric wholesale commodity
transactions. Under Palo Alto Municipal Code, Section 2.30.340, the City may use the WSPP
agreement to negotiate energy and capacity transactions.
G. NextEra currently does not have an energy master purchase and sale agreement
with the City, therefore, the City Manager is not authorized by the Municipal Code to enter into
transactions in excess of $250,000 per year.
NOW, THEREFORE, the Council of the City of Palo Alto does hereby resolve, as follows:
SECTION 1. The Council hereby authorizes the City Manager, or his designee, to execute
an agreement under the WSSP contract form or substantially similar form between the City and
NextEra for the sale of System Capacity associated with Calaveras to NextEra in exchange for a
total payment to the City of three-hundred, sixty-four thousand dollars ($364,000.00).
//
//
*NOT YET APPROVED*
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SECTION 2. The Council finds that the adoption of this resolution does not meet the
definition of a project under the California Environmental Quality Act (CEQA) pursuant to
California Public Resources Code Section 21065, and therefore, no environment assessment is
required.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENTIONS:
ABSENT:
ATTEST: APPROVED:
____________________________ _____________________________
City Clerk Mayor
APPROVED AS TO FORM:
_____________________________ _____________________________
Senior Asst. City Attorney City Manager
_____________________________
Director of Utilities
_____________________________
Director of Administrative Services
RA Capacity
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MASTER POWER PURCHASE AND SALE AGREEMENT
CONFIRMATION LETTER
BETWEEN
NEXTERA ENERGY POWER MARKETING LLC
AND
CITY OF PALO ALTO
This confirmation letter ("Confirmation") confirms the Transaction between the City of Palo Alto, California
(“Seller”) and NextEra Energy Power Marketing, LLC (“Buyer”), each individually a “Party” and together
the “Parties”, dated as of ____________ (the "Confirmation Effective Date") in which Seller agrees to
provide to Buyer the right to the Product, as such term is defined in Article 2 of this Confirmation. This
Transaction shall be subject to the terms and conditions of the Western System Power Pool Agreement,
as updated April 23, 2012 (the “Master Agreement”). The Master Agreement and this Confirmation shall
be collectively referred to herein as the “Agreement”. Capitalized terms used but not otherwise defined in
this Confirmation have the meanings ascribed to them in the Master Agreement, or the Tariff (defined
herein below).
DEFINITIONS
1.1 "Applicable Laws" means any law, rule, regulation, order, decision, judgment, or other legal or
regulatory determination by any Governmental Body having jurisdiction over one or both Parties
or this Transaction, including without limitation, the Tariff.
1.2 “Availability Incentive Payments” has the meaning set forth in the Tariff.
1.3 “Availability Standards” has the meaning set forth in the Tariff.
1.4 "CAISO" means the California Independent System Operator or any successor entity performing
the same functions.
1.5 “Capacity Attributes” means any and all current or future defined characteristics, certificates, tags,
credits, or accounting constructs, howsoever entitled, including any accounting construct counted
toward any resource adequacy requirements, attributed to or associated with the Units throughout
the Delivery Period.
1.6 "Capacity Flat Price" means the price specified in the Capacity Flat Price Table in Section 4.1.
1.7 "Capacity Replacement Price" means the market price for the quantity of Product not provided by
Seller under this Confirmation as determined in the manner upon which market prices are
determined under Section 5.2 of the Master Agreement. For purposes of Section 1.51 of the
Master Agreement, “Capacity Replacement Price” shall be deemed the “Replacement Price” for
this Transaction.
1.8 "Contract Price" means, for any Showing Month, the product of the Capacity Flat Price and the
Price Shape for such period.
1.9 "Contract Quantity" has the meaning set forth in Section 2.5.
1.10 "CPUC Decisions" means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-
064, 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036 and any other existing or
subsequent decisions, resolutions, or rulings related to resource adequacy, as may be amended
from time to time by the CPUC.
1.11 “CPUC Filing Guide” is the annual document issued by the CPUC which sets forth the guidelines,
requirements and instructions for LSE’s to demonstrate compliance with the CPUC’s RA
program.
1.12 "Delivery Period" has the meaning specified in Section 2.4.
1.13 "GADS" means the Generating Availability Data System, or its successor.
RA Capacity
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1.14 "Governmental Body" means any federal, state, local, municipal or other government; any
governmental, regulatory or administrative agency, commission or other authority lawfully
exercising or entitled to exercise any administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power; and any court or governmental tribunal.
1.15 “Local Capacity Area” has the meaning set forth in the Tariff.
1.16 "Local RA Attributes" means, with respect to a Unit, any and all resource adequacy attributes or
other locational attributes for the Unit related to a Local Capacity Area, as may be identified from
time to time by the CPUC, CAISO or other Governmental Body having jurisdiction, associated
with the physical location or point of electrical interconnection of the Unit within the CAISO
Control Area, that can be counted toward a Local RAR, but exclusive of any RA Attributes.
1.17 "Local RAR" means the local resource adequacy requirements established for LSEs by the
CPUC pursuant to the CPUC Decisions, or by any other Governmental Body having jurisdiction.
Local RAR may also be known as local area reliability, local resource adequacy, local resource
adequacy procurement requirements, or local capacity requirement in other regulatory
proceedings or legislative actions.
1.18 "Local RAR Showings" means the Local RAR compliance showings (or similar or successor
showings) an LSE is required to make to the CPUC (and, to the extent authorized by the CPUC,
to the CAISO) pursuant to the CPUC Decisions, or to any Governmental Body having jurisdiction.
1.19 "LSE" means load-serving entity.
1.20 "Monthly Payment" has the meaning specified in Section 4.1.
1.21 "NERC" means the North American Electric Reliability Corporation, or its successor.
1.22 "NERC/GADS Protocols" means the GADS protocols established by NERC, as may be updated
from time to time.
1.23 “Net Qualifying Capacity” has the meaning set forth in the Tariff.
1.24 “Non-Availability Charges” has the meaning set forth in the Tariff.
1.25 "Outage" means any disconnection, separation, or reduction in the capacity of any Unit, other
than a Planned Outage but including, without limitation, any such disconnection, separation or
reduction in capacity that is designated as either forced or unplanned pursuant to the Tariff or the
NERC/GADS Protocols.
1.26 "Planned Outage" means, subject to and as further described in the CPUC Decisions, a CAISO-
approved planned or scheduled disconnection, separation or reduction in capacity of any Unit that
is conducted for the purposes of carrying out routine repair or maintenance of such Unit, or for the
purposes of new construction work for such Unit.
1.27 "Price Shape" means the Price Shape specified in the Monthly Payment Price Shape Table in
Section 4.1.
1.28 "Product" has the meaning specified in Section 2.1.
1.29 "RA Attributes" means, with respect to a Unit, any and all resource adequacy attributes, as may
be identified from time to time by the CPUC, or other Governmental Body having jurisdiction, that
can be counted toward RAR, exclusive of any Local RA Attributes.
1.30 "RAR" means the resource adequacy requirements established for LSEs by the CPUC pursuant
to the CPUC Decisions, or by any other Governmental Body having jurisdiction.
1.31 "RAR Showings" means the RAR compliance showings (or similar or successor showings) an
LSE is required to make to the CPUC (and/or, to the extent authorized by the CPUC, to the
CAISO), pursuant to the CPUC Decisions, or to any Governmental Body having jurisdiction.
1.32 "Replacement Capacity" has the meaning specified in Section 5.2.
1.33 "Replacement Unit" means a generating unit meeting the requirements specified in Section 5.1.
RA Capacity
3
1.34 "Resource Category" shall be as described in the annual CPUC Filing Guide for System and
Local Resource Adequacy (RA) Compliance Filings, as such may be modified, amended,
supplemented or updated from time to time.
1.35 “Scheduling Coordinator” or “SC” has the meaning set forth in the Tariff.
1.36 “Showing Month” shall be the calendar month that is the subject of the RAR Showing, as set forth
in the CPUC Decisions. For illustrative purposes only, pursuant to the CPUC Decisions in effect
as of the Confirmation Effective Date, the monthly RAR Showing made in June is for the Showing
Month of August.
1.37 “Substitute Capacity” has the meaning set forth in Section 10.1.
1.38 “Substitution Rules” has the meaning set forth in Section 10.2.
1.39 "Supply Plan" has the meaning set forth in the Tariff.
1.40 "Tariff" means the tariff and protocol provisions, including any current CAISO-published
“Operating Procedures” and “Business Practice Manuals,” as amended or supplemented from
time to time, of the CAISO.
1.41 “Term” shall have the following meaning: The “Term” of this Transaction shall commence upon
the Confirmation Effective Date and shall continue until the later of (a) the expiration of the
Delivery Period or (b) the date the Parties’ obligations under this Agreement have been satisfied.
1.42 "Unit" or "Units" shall mean the generation assets described in Appendix A (including any
Replacement Units), from which Product is provided by Seller to Buyer.
1.43 “Unit NQC” means the Net Qualifying Capacity set by the CAISO for the applicable Unit. The
Parties agree that if the CAISO adjusts the Net Qualifying Capacity of a Unit after the
Confirmation Effective Date, the Unit NQC shall be deemed the lesser of (i) the Unit NQC as of
the Confirmation Effective Date, or (ii) the CAISO-adjusted Net Qualifying Capacity.
1.44 "Unit Quantity" means the amount of Product (in MWs) provided by Seller to Buyer by each
individual Unit identified in Appendix A subject to reductions as outlined in Section 3.2.
ARTICLE 2
TRANSACTION
2.1 Product
The RA Attributes, Local RA Attributes and Capacity Attributes of the Unit(s) identified in Appendix A
(collectively, the “Product”). Product does not include any right to the energy or ancillary services from
the Unit.
Any change by the CAISO, CPUC or other Governmental Body that defines new or re-defines existing
Local Capacity Areas that result in a decrease or increase in the amount of Local RA Attributes provided
hereunder will not result in a change in payments made pursuant to this Transaction. In addition, the
Parties agree that, under this Confirmation, if the CAISO, CPUC or other Governmental Body defines new
or re-defines existing Local Capacity Areas whereby the Units qualify for a Local Capacity Area, the
Product shall include such Local RA Attributes.
2.2 Firm RA Product
Seller shall provide Buyer with the Product from the Units in the amount of the Contract Quantity. If the
Units are not available to provide the full amount of the Contract Quantity for any reason, including
without limitation any Outage or Planned Outage or any adjustment of the RA Attributes, Local RA
Attributes and Capacity Attributes of any Unit, Seller shall provide Buyer with Replacement Capacity from
one or more Replacement Units pursuant to Section 5.1 hereof. If Seller fails to provide Buyer with
Replacement Capacity from Replacement Units pursuant to Section 5.1, then Seller shall be liable for
damages and/or to indemnify Buyer for penalties or fines pursuant to the terms of Article Five. The
Parties agree that Section 3.2 shall not apply if this Section 2.2 has been elected.
RA Capacity
4
2.3 Contingent Firm RA Product
Seller shall provide Buyer with the Product from the Units in the amount of the Contract Quantity. If the
Units are not available to provide the full amount of the Contract Quantity, Seller may elect to provide
Buyer with Replacement Capacity from one or more Replacement Units pursuant to Section 5.1. In such
case, if Seller elects to provide Replacement Capacity pursuant to Section 5.1 and fails or if Seller elects
not to provide such Replacement Capacity, then Seller shall be liable for damages and/or shall indemnify
Buyer for penalties or fines pursuant to the terms of Article Five. If the Units provide less than the full
amount of the Contract Quantity in the event of a Planned Outage or a reduction to Unit NQC, Seller is
not obligated to provide Buyer with Replacement Capacity and shall not be liable for damages or
obligated to indemnify Buyer for penalties or fines pursuant to Article 5 hereof.
2.4 Delivery Period
The Delivery Period shall be: May 1, 2013 through September 30, 2013, inclusive, unless terminated
earlier in accordance with the terms of this Agreement.
2.5 Contract Quantity
Contract Quantity equals the total sum of each Unit Quantity identified in Appendix A. As of the
Confirmation Effective Date, the Contract Quantity is as follows:
Contract Quantity (MWs)
Showing
Month 2013
May 10
June 40
July 56
August 56
September 20
ARTICLE 3
DELIVERY OBLIGATIONS
3.1 Delivery of Product
Subject to any reductions set forth in Section 3.2 (if Section 2.3 above is selected), Seller shall provide
Buyer with the Contract Quantity of Product for each Showing Month consistent with the following:
(a) Seller shall, on a timely basis, submit, or cause each Unit's SC to submit, Supply Plans to identify
and confirm the Unit Quantity provided to Buyer so that the total amount of Unit Quantity
identified and confirmed equals the Contract Quantity, unless specifically requested not to do so
by the Buyer.
(b) Seller shall cause each Unit’s SC to submit written notification to Buyer, no later than fifteen (15)
Business Days before the relevant deadline for any applicable RAR or Local RAR Showing, that
Buyer will be credited with the Unit Quantity for the Delivery Period in the Unit’s SC Supply Plan
so that the total amount of Unit Quantity credited equals the Contract Quantity.
3.2 Adjustments to Contract Quantity
In the event that Section 2.3 is applicable, then:
RA Capacity
5
(a) Seller’s obligation to deliver the Contract Quantity of Product for any Showing Month
may be reduced if any portion of the Unit(s) is scheduled for a Planned Outage
during that month; provided, Seller notifies Buyer, no later than fifteen (15) Business
Days before the relevant deadline for the corresponding RAR Showing or Local RAR
Showing applicable to that month, the amount of Product from each Unit Buyer is
permitted to include in Buyer’s RAR or Local RAR Showing applicable to that month
as a result of such Planned Outage.
In the event Seller is unable to provide the Contract Quantity of Product because of a
Planned Outage of a Unit, Seller has the option, but not the obligation, to provide Product
from Replacement Units; provided, Seller provides and identifies such Replacement Units
consistent with Section 5.1. In addition, if Seller chooses not to provide Product from
Replacement Units and a Unit is on a Planned Outage for the applicable Showing Month,
then, the Contract Quantity shall be revised in accordance with any applicable
adjustments stipulated by the CPUC Filing Guide or CAISO guidelines in effect for the
applicable Showing Month in which the Planned Outage occurs.
(b) Reductions in Unit NQC: In the event the Unit experiences a reduction in Unit NQC as
determined by the CAISO; Seller has the option, but not the obligation, to provide the Unit
Quantity from the same Unit; provided the Unit has sufficient remaining and available
Product.
3.3 Buyer’s Re-Sale of Product
Buyer may re-sell all or a portion of the Product hereunder.
ARTICLE 4
PAYMENT
4.1 Monthly Payment
In accordance with the terms of Article Six of the Master Agreement, Buyer shall make a Monthly
Payment to Seller for each Unit, after the applicable Showing Month, as follows:
Monthly Payment = (A x B x 1,000)
where:
A = applicable Contract Price for that Showing Month
B = Unit Quantity provided pursuant to and consistent with Section 3.1
for the Showing Month
The Monthly Payment calculation shall be rounded to two decimal places.
CAPACITY FLAT PRICE TABLE
Contract
Year
RA Capacity Flat Price
($/kW-month)
May 2013 – September 2013 $2.00
The respective monthly Price Shape, set forth in the Monthly Payment Price Shape Table below, shall
apply throughout the entire Delivery Period.
RA Capacity
6
MONTHLY PAYMENT PRICE SHAPE TABLE
Showing Month Price Shape
(%)
May 100%
June 100%
July 100%
August 100%
September 100%
4.2 Allocation of Other Payments and Costs
(a) Seller shall retain any revenues it may receive from and pay all costs charged by the
CAISO or any other third party with respect to any Unit for (i) start-up, shutdown, and
minimum load costs, (ii) capacity revenue for ancillary services, (iii) energy sales, and (iv)
any revenues for black start or reactive power services.
(b) Buyer shall be entitled to receive and retain all revenues associated with the Contract
Quantity of Product associated solely with Seller’s ownership share of the Unit during the
Delivery Period (including any capacity revenues from RMR Agreements for any Unit,
Capacity Procurement Mechanism (CPM), or its successor, and Residual Unit
Commitment (RUC) Availability Payments, or its successor, but excluding payments
described in Section 4.2(a)(i)-(iv)).
(c) In accordance with Section 4.1 of this Confirmation and Article Six of the Master
Agreement,
(i) all such Buyer revenues described in this Section 4.2, but received by Seller, or a
Unit’s SC, owner, or operator shall be remitted to Buyer, and Seller shall pay
such revenues to Buyer if the Unit’s SC, owner, or operator fails to remit those
revenues to Buyer. If Seller fails to pay such revenues to Buyer, Buyer may
offset any amounts owing to it for such revenues pursuant to Article Six of the
Master Agreement against any future amounts it may owe to Seller under this
Confirmation. In order to verify the accuracy of such revenues, Buyer shall have
the right, at its sole expense and during normal working hours after reasonable
prior notice, to hire an independent third party reasonably acceptable to Seller to
audit any documents, records or data of Seller associated with the Contract
Quantity; and
(ii) all such Seller, or a Unit’s SC, owner, or operator revenues described in this
Section 4.2, but received by Buyer shall be remitted to Seller, and Buyer shall
pay such revenues to Seller if the Unit’s SC, owner, or operator fails to remit
those revenues to Seller. If Buyer fails to pay such revenues to Seller, Seller
may offset any amounts owing to it for such revenues pursuant to Article Six of
the Master Agreement against any future amounts it may owe to Buyer under this
Confirmation.
(d) If a centralized capacity market develops within the CAISO region, Buyer will have
exclusive rights to offer, bid, or otherwise submit the Contract Quantity provided to Buyer
pursuant to this Confirmation for re-sale in such market, and retain and receive any and
all related revenues.
(e) Seller agrees that the Unit is subject to the terms of the Availability Standards, Non-
Availability Charges, and Availability Incentive Payments as contemplated under Section
40.9 of the Tariff. Furthermore, the Parties agree that any Availability Incentive Payments
RA Capacity
7
are for the benefit of the Seller and for Seller’s account and that any Non-Availability
Charges are the responsibility of the Seller and for Seller’s account.
ARTICLE 5
SELLER'S FAILURE TO DELIVER CONTRACT QUANTITY
5.1 Seller’s Duty To Provide Replacement Capacity
Subject to any adjustments made pursuant to Section 3.2(a) (if Section 2.3 above is selected), if Seller is
unable to provide the full Contract Quantity of Product for any Showing Month, then:
(a) Seller may, at no cost to Buyer, provide Buyer with replacement Product from one or
more Replacement Units, such that the total amount of Product provided to Buyer from all
Units and Replacement Units equals the Contract Quantity; and
(b) Seller shall identify Replacement Units meeting the above requirements no later than
fifteen (15) Business Days before the relevant deadline for Buyer's RAR Showing and/or
Local RAR Showing.
provided, that the designation of any Replacement Unit by Seller shall be subject to Buyer’s prior written
approval, which shall not be unreasonably withheld. Once Seller has identified in writing any
Replacement Units that meet the requirements of this Section 5.1, any such Replacement Unit shall be
automatically deemed a Unit for purposes of this Confirmation for that Showing Month.
5.2 Damages for Failure to Provide Replacement Capacity
If either Section 2.2 or 2.3 is selected above and Seller fails to provide Buyer any portion of the Contract
Quantity (as adjusted pursuant to Section 3.2) from Replacement Units for any Showing Month as
required by Section 5.1, then the following shall apply:
(a) Buyer may, but shall not be required to, replace any portion of the Contract Quantity not
provided by Seller with capacity having equivalent RA and Local RA Attributes as the
Product not provided by Seller ("Replacement Capacity"). Buyer may enter into purchase
transactions with one or more parties to replace the portion of Contract Quantity not
provided by Seller. Additionally, Buyer may enter into one or more arrangements to
repurchase its obligation to sell and deliver the capacity to another party, and such
arrangements shall be considered the procurement of Replacement Capacity. Buyer
shall act in a commercially reasonable manner in procuring any Replacement Capacity.
(b) Seller shall pay to Buyer at the time set forth in Section 4.1 of the Master Agreement, the
following damages in lieu of damages specified in Section 4.1 of the Master Agreement:
an amount equal to the positive difference, if any, between (i) the sum of (A) the actual
cost paid by Buyer for any Replacement Capacity, including any transaction costs and
expenses incurred in connection with such procurement, plus (B) each Capacity
Replacement Price times the amount of the Contract Quantity neither provided by Seller
nor purchased by Buyer pursuant to Section 5.2(a), and (ii) the Contract Quantity not
provided for the applicable Showing Month times the Contract Price for that month. If
Seller fails to pay these damages, then Buyer may offset those damages owed it against
any future amounts it may owe to Seller under this Confirmation pursuant to Article Six of
the Master Agreement.
5.3 Indemnities for Failure to Deliver Contract Quantity
Subject to any adjustments made pursuant to Section 3.2(a), Seller agrees to indemnify, defend and hold
harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CAISO,
resulting from any of the following:
RA Capacity
8
(a) Seller’s failure to provide any portion of the Contract Quantity, if Seller fails to replace the
shortfall in Contract Quantity from Replacement Units in accordance with Section 5.1;
(b) Seller’s failure to provide notice of the non-availability of any portion of the Contract
Quantity as required under Section 3.1; or
(c) A Unit’s SC’s failure to timely submit Supply Plans that identify Buyer’s right to the Unit
Quantity purchased hereunder.
With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such
penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its
utilization of its owned or controlled assets or market positions to minimize these penalties and fines.
Seller will have no obligation to Buyer under this Section 5.3 in respect of the portion of Contract Quantity
for which Seller has paid damages for Replacement Capacity. If Seller fails to pay those penalties, fines
or costs, or fails to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those
penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation.
ARTICLE 6
CAISO OFFER REQUIREMENTS
Subject to Buyer’s request under Section 10.1, during the Delivery Period, except to the extent any Unit is
in an Outage or Planned Outage, Seller shall either schedule or cause the Unit’s SC to schedule with, or
make available to, the CAISO the Unit Quantity for each Unit in compliance with the Tariff, and shall
perform all, or cause the Unit’s SC, owner, or operator, as applicable, to perform all obligations under the
Tariff that are associated with the sale of Product hereunder. Buyer shall have no liability for the failure of
Seller or the failure of any Unit’s SC, owner, or operator to comply with such Tariff provisions, including
any penalties, charges or fines imposed on Seller or the Unit’s SC, owner, or operator for such
noncompliance.
ARTICLE 7
PLANNED OUTAGES
Upon the Confirmation Effective Date, thirty (30) days before the applicable year-ahead showing, and no
later than January 1, April 1, July 1 and October 1 of each calendar year thereafter until the end of the
Term, Seller shall submit, or cause the Unit's SC to submit to Buyer, the portion of each Unit's schedule of
proposed Planned Outages ("Outage Schedule") for the following twelve (12) month period or until the
end of the Delivery Period, whichever is shorter. Within twenty (20) Business Days after its receipt of an
Outage Schedule, Buyer shall notify Seller in writing of any reasonable request for changes to the Outage
Schedule, and Seller shall, consistent with Good Utility Practices, accommodate Buyer's requests
regarding the timing of any Planned Outage. Seller or the Unit's SC shall notify Buyer within five (5)
Business Days of any change to the Outage Schedule.
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ARTICLE 8
OTHER BUYER AND SELLER COVENANTS
8.1 Seller’s and Buyer’s Duty to Take Action to Allow the Utilization of the Product
Buyer and Seller shall, throughout the Delivery Period, take all commercially reasonable actions and
execute any and all documents or instruments reasonably necessary to ensure Buyer's right to the use of
the Contract Quantity for the sole benefit of Buyer's RAR and Local RAR, if applicable. The Parties
further agree to negotiate in good faith to make necessary amendments, if any, to this Confirmation to
conform this Transaction to subsequent clarifications, revisions, or decisions rendered by the CPUC,
FERC, or other Governmental Body having jurisdiction to administer RAR or Local RAR, to maintain the
benefits of the bargain struck by the Parties on the Confirmation Effective Date.
8.2 Seller’s Represents, Warrants and Covenants
Seller represents, warrants and covenants to Buyer that, throughout the Delivery Period:
(a) Seller owns or has the exclusive right to the Product sold under this Confirmation from
each Unit, and shall furnish Buyer, CAISO, CPUC or other Governmental Body with such
evidence as may reasonably be requested to demonstrate such ownership or exclusive
right;
(b) No portion of the Contract Quantity has been committed by Seller to any third party in
order to satisfy RAR or Local RAR or analogous obligations in any CAISO or non-CAISO
markets, other than pursuant to an RMR Agreement between the CAISO and either
Seller or the Unit’s owner or operator;
(c) Each Unit is connected to the CAISO Controlled Grid, is within the CAISO Control Area,
and is under the control of CAISO;
(d) Seller shall, and each Unit’s SC, owner and operator is obligated to, comply with
Applicable Laws, including the Tariff, relating to the Product;
(e) If Seller is the owner of any Unit, the aggregation of all amounts of Local RA Attributes
and RA Attributes that Seller has sold, assigned or transferred for any Unit does not
exceed the Unit NQC for that Unit;
(f) Seller has notified the SC of each Unit that Seller has transferred the Unit Quantity to
Buyer, and the SC is obligated to deliver the Supply Plans in accordance with the Tariff;
(g) Seller has notified the SC of each Unit that Seller is obligated to cause each Unit’s SC to
provide to the Buyer, at least fifteen (15) Business Days before the relevant deadline for
each RAR or Local RAR Showing, the Unit Quantity of each Unit that is to be submitted
in the Supply Plan associated with this Agreement for the applicable period; and
(h) Seller has notified each Unit’s SC that Buyer is entitled to the revenues set forth in
Section 4.2, and such SC is obligated to promptly deliver those revenues to Buyer, along
with appropriate documentation supporting the amount of those revenues.
ARTICLE 9
CONFIDENTIALITY
Notwithstanding Section 10.11 of the Master Agreement, the Parties agree that Buyer may disclose the
Contract Quantity under this Transaction to any Governmental Body, the CPUC, the CAISO in order to
support its Local RAR or RAR Showings, if applicable, and Seller may disclose the transfer of the
Contract Quantity under this Transaction to the SC of each Unit in order for such SC to timely submit
accurate Supply Plans; provided, that each disclosing Party shall use reasonable efforts to limit, to the
extent possible, the ability of any such applicable Governmental Body, CAISO, or SC to further disclose
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such information. In addition, in the event Buyer resells all or any portion of the Product to another party,
Buyer shall be permitted to disclose to the other party to such resale transaction all such information
necessary to effect such resale transaction.
The Disclosing Party shall be solely responsible for taking whatever legal steps are necessary to protect
information deemed by it to be Confidential Information and to prevent release of information to the
Requestor by the Receiving Party. If the Disclosing Party takes no such action, after receiving the
foregoing notice from the Receiving Party, the Receiving Party shall be permitted to comply with the
Requestor’s demand and is not required to defend against it.
ARTICLE 10
UNIT SUBSTITUTION
10.1 Substitute Capacity
No later than five (5) Business Days before the relevant deadline for each RAR or Local RAR Showing,
Buyer may request that Seller not list, or cause each Unit’s SC not to list, a portion or all of a Unit’s Unit
Quantity on the Supply Plan. The amount of Unit Quantity that is the subject of such a request shall be
known as “Substitute Capacity” and, for purposes of calculating a Monthly Payment pursuant to Section
4.1, be deemed Unit Quantity provided consistent with Section 3.1.
10.2 Seller’s Obligations With Respect to Substitute Capacity
If Buyer makes a request for Substitute Capacity, Seller shall (a) make such Substitute Capacity available
to Buyer during the applicable Showing Month in order to allow Buyer to utilize the substitution rules
found in Section 40.9.4.2.1 of the Tariff (“Substitution Rules”); and (b) take all action, or cause each Unit’s
SC to take all action, to allow Buyer to utilize the Substitution Rules, including, but not limited to, ensuring
that the Substitute Capacity will qualify for substitution under the Substitution Rules and providing Buyer
with all information needed to utilize the Substitution Rules.
Seller agrees that all Substitute Capacity that is utilized under the Substitution Rules is subject to the
requirements identified in Article 6 as if the capacity had been included on the Supply Plan.
10.3 Failure to Provide Substitute Capacity
If Seller fails to provide Substitute Capacity or Buyer is unable to utilize the Substitute Capacity under the
Substitution Rules, then Seller shall pay for any and all Non-Availability Charges incurred by Buyer for
such failure or inability to utilize the Substitution Rules; provided, that if Seller fails to provide Substitute
Capacity or Buyer is unable to utilize the Substitution Rules, in each case, because the Substitute
Capacity does not qualify for substitution under the last sentence of Section 40.9.4.2.1(1) of the Tariff or
under the last sentence of Section 40.9.4.2.1(2) of the Tariff, or a Planned Outage coincides with the
substitution request, then Seller shall not be responsible for any such Non-Availability Charges described
in this Section 10.3 associated with such inability. If Seller fails to pay any Non-Availability Charges
under this Section 10.3, then Buyer may offset those charges owed it against any future amounts it may
owe to Seller under this Confirmation pursuant to Article Six of the Master Agreement.
ARTICLE 11
MARKET BASED RATE AUTHORITY
Seller agrees, in accordance with FERC Order No. 697, to, upon request of Buyer, submit a letter of
concurrence in support of any affirmative statement by Buyer that this contractual arrangement does not
transfer “ownership or control of generation capacity” from Seller to Buyer as the term “ownership or
control of generation capacity” is used in 18 CFR § 35.42. Seller also agrees that it will not, in any filings,
if any, made subject to Order Nos. 652 and 697, claim that this contractual arrangement conveys
ownership or control of generation capacity from Seller to Buyer.
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ARTICLE 12
COLLATERAL REQUIREMENTS
12.1 Credit Terms
The Parties agree that the credit and collateral provisions of the Master Agreement shall govern this
Transaction. In addition, Buyer agrees to provide Seller, within five (5) Business Days after the execution
date set forth below, a parental guaranty issued by NextEra Energy Capital Holdings, Inc., in the form
attached hereto as Exhibit A, in the amount of $364,000.
ACKNOWLEDGED AND AGREED TO AS OF________________:
NextEra Energy Power Marketing LLC Seller City of Palo Alto, California
By: By:
Name: Name:
Title: Title:
Date: Date:
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APPENDIX A
UNIT INFORMATION
Name: Collierville Hydro Unit 1 & 2 Aggregate
Location: Calaveras County
CAISO Resource ID: COLVIL_7_PL1X2
Unit NQC (as of the Confirmation Effective Date): 246.86
Unit Quantity: See Contract Quantity
Resource Type: Dispatchable Hydro
Resource Category (1, 2, 3 or 4): 4
Point of interconnection with the CAISO Controlled Grid ("Substation"): Bellota Substation
Path 26 (North, South or None): North
Local Capacity Area (if any, as of Confirmation Effective Date): Not Applicable; System Capacity
Deliverability restrictions, if any, as described in most recent CAISO deliverability assessment: None
Run Hour Restrictions:None
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Exhibit A
GUARANTY
THIS GUARANTY (this “Guaranty”), dated as of _____, ____ (the “Effective Date”), is made by
NEXTERA ENERGY CAPITAL HOLDINGS, INC. (“Guarantor”), in favor of THE CITY OF PALO
ALTO, CALIFORNIA (“Counterparty”).
RECITALS:
A. WHEREAS, Counterparty and Guarantor’s indirect, wholly-owned subsidiary NEXTERA
ENERGY POWER MARKETING, LLC (“Obligor”) are members of, or concurrently herewith
are entering into membership of WSPP, Inc. and have agreed to transact under that certain WSPP
Agreement as filed with and approved by the Federal Energy Regulatory Commissoin (the
“Underlying Agreement”); and
B. WHEREAS, Counterparty and Obligor may from time to time enter into one or more transactions
pursuant to and subject to the terms of the Underlying Agreement (the “Transactions”), which
Tranactions would be evidenced by one or more confirmations entered into by Obligor and
Counterparty in accordance with the Underlying Agreement (which documentation shall, together
with the Agreement, collectively be referred to hereinafter as the “Agreement”; and
C. WHEREAS, Guarantor will directly or indirectly benefit from the Transactions to be entered into
between Obligor and Counterparty pursuant to the Agreement.
NOW THEREFORE, in consideration of the foregoing premises and as an inducement for Counterparty’s
execution, delivery and performance of the Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Guarantor hereby agrees for the benefit of
Counterparty as follows:
* * *
1. GUARANTY. Subject to the terms and provisions hereof, Guarantor hereby absolutely
and irrevocably guarantees the timely payment when due of all obligations owing by Obligor to
Counterparty arising pursuant to the Agreement on or after the Effective Date (the “Obligations”). This
Guaranty shall constitute a guarantee of payment and not of collection. The liability of Guarantor under
this Guaranty shall be subject to the following limitations:
(a) Notwithstanding anything herein or in the Agreement to the contrary, the maximum aggregate
obligation and liability of Guarantor under this Guaranty, and the maximum recovery from
Guarantor under this Guaranty, shall in no event exceed three hundred sixty-four U.S. Dollars
(U.S. $364,000) (the “Maximum Recovery Amount”).
(b) The obligation and liability of Guarantor under this Guaranty is specifically limited to payments
expressly required to be made under the Agreement, as well as costs of collection and
enforcement of this Guaranty (including attorney’s fees) to the extent reasonably and actually
incurred by the Counterparty (subject in all instances, to the limitations imposed by the Maximum
Recovery Amount as specified in Section 1(a) above). In no event, however, shall Guarantor be
liable for or obligated to pay any consequential, indirect, incidental, lost profit, special,
exemplary, punitive, equitable or tort damages.
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2. DEMANDS AND PAYMENT.
(a) If Obligor fails to pay any Obligation to Counterparty when such Obligation is due and owing
under the Agreement (an “Overdue Obligation”), Counterparty may present a written demand to
Guarantor calling for Guarantor’s payment of such Overdue Obligation pursuant to this Guaranty
(a “Payment Demand”).
(b) Guarantor’s obligation hereunder to pay any particular Overdue Obligation(s) to Counterparty is
conditioned upon Guarantor’s receipt of a Payment Demand from Counterparty satisfying the
following requirements: (i) such Payment Demand must identify the specific Overdue
Obligation(s) covered by such demand, the specific date(s) upon which such Overdue
Obligation(s) became due and owing under the Agreement, and the specific provision(s) of the
Agreement pursuant to which such Overdue Obligation(s) became due and owing; (ii) such
Payment Demand must be delivered to Guarantor in accordance with Section 9 below; and (iii)
the specific Overdue Obligation(s) addressed by such Payment Demand must remain due and
unpaid at the time of such delivery to Guarantor.
(c) After issuing a Payment Demand in accordance with the requirements specified in Section 2(b)
above, Counterparty shall not be required to issue any further notices or make any further
demands with respect to the Overdue Obligation(s) specified in that Payment Demand, and
Guarantor shall be required to make payment with respect to the Overdue Obligation(s) specified
in that Payment Demand within five (5) Business Days after Guarantor receives such demand.
As used herein, the term “Business Day” shall mean all weekdays (i.e., Monday through Friday)
other than any weekdays during which commercial banks or financial institutions are authorized
to be closed to the public in the State of Florida or the State of New York.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that:
(a) it is a corporation duly organized and validly existing under the laws of the State of Florida and
has the corporate power and authority to execute, deliver and carry out the terms and provisions
of the Guaranty;
(b) no authorization, approval, consent or order of, or registration or filing with, any court or other
governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the
execution and delivery of this Guaranty; and
(c) this Guaranty constitutes a valid and legally binding agreement of Guarantor, enforceable against
Guarantor in accordance with the terms hereof, except as the enforceability thereof may be
limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of equity.
4. RESERVATION OF CERTAIN DEFENSES. Without limiting Guarantor’s own
defenses and rights hereunder, Guarantor reserves to itself all rights, setoffs, counterclaims and other
defenses to which Obligor is or may be entitled arising from or out of the Agreement, except for defenses
(if any) based upon the bankruptcy, insolvency, dissolution or liquidation of Obligor or any lack of power
or authority of Obligor to enter into and/or perform the Agreement.
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5. AMENDMENT OF GUARANTY. No term or provision of this Guaranty shall be
amended, modified, altered, waived or supplemented except in a writing signed by Guarantor and
Counterparty.
6. WAIVERS AND CONSENTS. Subject to and in accordance with the terms and
provisions of this Guaranty:
(a) Except as required in Section 2 above, Guarantor hereby waives (i) notice of acceptance of this
Guaranty; (ii) presentment and demand concerning the liabilities of Guarantor; and (iii) any right
to require that any action or proceeding be brought against Obligor or any other person, or to
require that Counterparty seek enforcement of any performance against Obligor or any other
person, prior to any action against Guarantor under the terms hereof.
(b) No delay by Counterparty in the exercise of (or failure by Counterparty to exercise) any rights
hereunder shall operate as a waiver of such rights, a waiver of any other rights or a release of
Guarantor from its obligations hereunder (with the understanding, however, that the foregoing
shall not be deemed to constitute a waiver by Guarantor of any rights or defenses which
Guarantor may at any time have pursuant to or in connection with any applicable statutes of
limitation).
(c) Without notice to or the consent of Guarantor, and without impairing or releasing Guarantor’s
obligations under this Guaranty, Counterparty may: (i) change the manner, place or terms for
payment of all or any of the Obligations (including renewals, extensions or other alterations of the
Obligations); (ii) release Obligor or any person (other than Guarantor) from liability for payment
of all or any of the Obligations; or (iii) receive, substitute, surrender, exchange or release any
collateral or other security for any or all of the Obligations.
7. REINSTATEMENT. Guarantor agrees that this Guaranty shall continue to be effective
or shall be reinstated, as the case may be, if all or any part of any payment made hereunder is at any time
avoided or rescinded or must otherwise be restored or repaid by Counterparty as a result of the
bankruptcy or insolvency of Obligor, all as though such payments had not been made.
8. TERMINATION. Guarantor may terminate this Guaranty by providing a written
termination notice to Counterparty specifying the date upon which such termination will take effect
(provided that no such termination shall take effect prior to 5:00 p.m. (Eastern Prevailing Time) on the
fifth (5th) Business Day after the termination notice has been delivered to Counterparty in accordance
with Section 9 hereof). Upon the effectiveness of such termination, Guarantor shall have no further
liability hereunder, except as may pertain pursuant to the last sentence of this paragraph. No such
termination shall affect Guarantor's liability with respect to any Obligations arising under any
Transactions entered into prior to the time such termination is effective, which Obligations shall remain
subject to this Guaranty.
Unless terminated earlier, this Guaranty and the Guarantor’s obligations hereunder will terminate
automatically and immediately at 11:59:59 Eastern Prevailing Timeon the second anniversary of the
Effective Date; provided, however, that no such termination shall affect Guarantor's liability with respect
to any Obligations arising under any Transactions entered into prior to the time the termination is
effective, which Obligations shall remain subject to this Guaranty.
9. NOTICE. Any Payment Demand, notice, request, instruction, correspondence or other
document to be given hereunder (herein collectively called “Notice”) by Counterparty to Guarantor, or by
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Guarantor to Counterparty, as applicable, shall be in writing and may be delivered either by (i) U.S.
certified mail with postage prepaid and return receipt requested, or (ii) recognized nationwide courier
service with delivery receipt requested, in either case to be delivered to the following address (or to such
other U.S. address as may be specified via Notice provided by Guarantor or Counterparty, as applicable,
to the other in accordance with the requirements of this Section 9):
TO GUARANTOR: * TO COUNTERPARTY:
NEXTERA ENERGY CAPITAL
HOLDINGS, INC.
700 Universe Blvd.
Juno Beach, Florida 33408
Attn: Treasurer
__________________
__________________
__________________
Attn: _________
[Tel: (561) 694-6204 -- for use in
connection with courier deliveries]
[Tel: (___) ___-___ -- for use in
connection with courier deliveries]
* (NOTE: Copies of any Notices to Guarantor under this Guaranty shall also be sent via
facsimile to ATTN: Contracts Group, Legal, Fax No. (561) 625-7504 and ATTN: Credit
Department, Fax No. (561) 625-7642. However, such facsimile transmissions shall not
be deemed effective for delivery purposes under this Guaranty.)
Any Notice given in accordance with this Section 9 will (i) if delivered during the recipient's normal
business hours on any given Business Day, be deemed received by the designated recipient on such date,
and (ii) if not delivered during the recipient's normal business hours on any given Business Day, be
deemed received by the designated recipient at the start of the recipient's normal business hours on the
next Business Day after such delivery.
10. MISCELLANEOUS.
(a) This Guaranty shall in all respects be governed by, and construed in accordance with, the law of
the State of New York, without regard to principles of conflicts of laws thereunder (other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law).
(b) This Guaranty shall be binding upon Guarantor and its successors and permitted assigns and inure
to the benefit of and be enforceable by Counterparty and its successors and permitted assigns.
Guarantor may not assign this Guaranty in part or in whole without the prior written consent of
Counterparty. Counterparty may not assign its rights or benefits under this Guaranty in part or in
whole without the prior written consent of Guarantor.
(c) This Guaranty embodies the entire agreement and understanding between Guarantor and
Counterparty and supersedes all prior agreements and understandings relating to the subject
matter hereof.
(d) The headings in this Guaranty are for purposes of reference only, and shall not affect the meaning
hereof. Words importing the singular number hereunder shall include the plural number and vice
versa, and any pronouns used herein shall be deemed to cover all genders. The term "person" as
used herein means any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated association, or government (or any agency or political subdivision
thereof).
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(e) Wherever possible, any provision in this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any one jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
(f) Counterparty (by its acceptance of this Guaranty) and Guarantor each hereby irrevocably: (i)
consents and submits to the exclusive jurisdiction of the United States District Court for the
Southern District of New York, or if that court does not have subject matter jurisdiction, to the
exclusive jurisdiction of the Supreme Court of the State of New York, New York County
(without prejudice to the right of any party to remove to the United States District Court for the
Southern District of New York) for the purposes of any suit, action or other proceeding arising
out of this Guaranty or the subject matter hereof or any of the transactions contemplated hereby
brought by Counterparty, Guarantor or their respective successors or assigns; and (ii) waives (to
the fullest extent permitted by applicable law) and agrees not to assert any claim that it is not
personally subject to the jurisdiction of the above-named courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Guaranty or the subject matter hereof may not be enforced in or by such
court.
(g) COUNTERPARTY (BY ITS ACCEPTANCE OF THIS GUARANTY) AND GUARANTOR
EACH HEREBY IRREVOCABLY, INTENTIONALLY AND VOLUNTARILY WAIVES THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED ON,
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS GUARANTY OR THE
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON RELATING
HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO
GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY.
* * *
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on _____________, 20__, but it is
effective as of the Effective Date.
NEXTERA ENERGY CAPITAL HOLDINGS, INC.
By:
Name:
Title: