renewable energy projects: negotiating power...

Renewable Energy Projects: Negotiating Power Purchase Agreements Structuring Terms To Meet State and Federal Renewable Power Standards

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WEDNESDAY, MAY 21, 2014

Presenting a live 90-minute webinar with interactive Q&A

Darin Lowder, Attorney, Ballard Spahr, Washington, D.C.

Kristen Thall Peters, Partner, Cooper White & Cooper, San Francisco and Walnut Creek, Calif.

David A. Soldani, Partner, Atkinson Andelson Loya Ruud & Romo, Fresno, Calif.

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Renewable Energy Projects: Negotiating Power Purchase Agreements

Structuring Terms to Meet State and Federal Renewable Power Standards

May 21, 2014 Kristen Thall Peters, Esq.

Cooper, White & Cooper LLP 1333 N. California Blvd, Suite 450 Walnut Creek, California 94596 (925) 935-0700

201 California Street, 17th Floor San Francisco, California 94111 (415) 433-1900

[email protected] www.cwclaw.com

Darin M. Lowder, Esq. Ballard Spahr LLP

1909 K Street, NW, 12th Floor Washington, DC 20006-1157

Direct 202.661.7631 Mobile 571.251.1837

[email protected] www.ballardspahr.com

mailto:[email protected]

http://www.ballardspahr.com/

Private versus Public Utility PPAs

Understanding Limitation of IOUs Renewable Auctions Energy Service Providers (ESPs) Community Choice Aggregators (CCAs) Municipal Electric Utilities Over the Fence Buyers Combinations of the Above

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Other Project Contracts

o Land o Turbine Supply o Operations o Permits

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More Project Documents

oWarranty, Maintenance and Service Agreement

oRenewable Energy Credit Purchase and Sale Agreement (may be integrated with Power Purchase Agreement)

oProject Interconnection Agreement

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More Project Documents (con’t)

oTransmission and Operating Agreement

oAgency Agreements oEngineering, Procurement and

Construction (EPC) Agreement oAgreement Performance Guaranty

Agreement (in favor of power purchaser)

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Interconnection Agreements Construction Distribution

sending energy directly to utility sending energy via utility’s system to 3P off taker

Term & Renewals Point of Interconnection/Access Allocation of Responsibility

PUC guidelines/tariff Disconnection of Unit

Invoicing & Payment Security Governing Law

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o Most frequently used to support some form of project financing

o PPA must be financeable o Critical that PPA and related revenue

stream remain in place for term of financing

Fundamental Role of PPA (Project Finance 101)

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o Credit of Offtaker o Scale of Project

o IOU o Commercial o Residential

o Ownership/Sales Structure o Seller – Project Company o Third Party o Joint Ownership – Tenancy in Common

Key Issues for PPAs

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o Obligation to sell delivered energy o Capacity/Availability – applicable on

in limited circumstances o Guaranteed Energy Quantities over

a rolling period of time o Qualification for and transfer of

RECs

Nature of Seller’s Obligation

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o Must take and pay for energy delivered

Nature of Buyer’s Obligation

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PPA: What is it? Description of PPA Under a power purchase agreement, a private entity (or group

of developers, construction contractors, and finance companies) typically installs, owns, operates and maintains a renewable energy project “behind the meter” on a customer’s site.

Customer purchases electricity or thermal energy through a long-term contract with fixed energy pricing (either fixed for the term, or rising each year at a pre-determined rate). Payment is only made for thermal or electric energy actually delivered.

Private ownership of the renewable energy equipment enables the project to qualify for federal and state tax incentives unavailable to non-taxpaying entities.

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Incentives / Flow of Funds

Government

Project Developer & Owner * Provides capital

* Constructs & operates project * Sells electricity & renewable credits

Host Customer

* Hosts project on its land/roofs * Buys physical power from project

Utility or Other Solar Renewable Energy

Credit (SREC) Buyer

SRECs Payments

Payments

Electricity

Tax-related incentives

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PPA: What is it? Obligations Provider typically has obligation to finance and

construct project, operate, and deliver energy Minimum outputs may be specified (failure to deliver

results in penalties or “make whole” provisions) Customer has obligation to take and pay for all power

delivered Ownership of renewable energy attributes (RECs or

SRECs) is negotiable, and may be sold separately from energy output

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Power Purchase Agreements: Why and How?

Why Moves construction, development, operations & financing

burden to third-party Maximizes financial and tax incentives Public-private collaboration possible Facilitates renewable energy development that may not

otherwise occur, providing environmental, educational, financial, economic development (e.g., green jobs) benefits to the community

How Competitive procurement (RFP or RFQ/RFP) Specific project or open invitation to bid Add-on through master energy performance contracts Alternatives: customer may propose key terms or seek form

PPA from provider 18

Power Purchase Agreements: Risks

Risk-Sharing Risk to public property Project completion risk Schedule risk Losing financial incentives (grants, rebates) Change in law Loss of use of project site by Customer (convention

center) Decrease in solar resources (allowing a building to

block sun) PPA must continue through financing term Risk of lower future power prices

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PPA: Tax Issues Tax Issues Who owns the system (according to the IRS)?

Control, risk of damage, benefits & burdens of ownership Risk of Recapture of federal tax benefits

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PPA: Financing Issues Financing Step-in rights for lenders to operate project Consent to assignment of PPA Results of customer default (requirement to

remain in place or be removed – at whose cost?)

Financing lien on system property (the project – not the underlying real property, land, or other improvements)

Documents recorded in full or in memorandum form 21

PPA: Business Terms Business Terms Energy pricing – output guarantee? System size variation PPA lease renewal (beyond normal 15-20 year initial

term) Purchase option pricing & timing Performance / completion bonds (construction,

removal) Costs of interconnection Customer-caused temporary outages (roof

replacement) Billing and payment Claiming/promoting green attributes of system 22

o Pricing Methodology o Power Production o Term/Renewals/Extensions o Completion Schedule o Consequences for Failure o Credit Protection

o Downgrade o Adequate Assurances

Other Key Renewable PPA Issues

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o Termination Payments o Fuel Risk o Maintenance Requirements o Environmental Credits and other green

attributes o Compliance with RPS


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o Facility Ownership o Tax Ownership o Option to Purchase Facility o Decommissioning o Access


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o Regulation and “reg out” provisions o Change of Law o Grid Access and Interconnection o Transmission Risk o Defaults


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1. Sale or retention of solar renewable energy credits (SRECs) and other environmental attributes

2. Roof selection, replacement schedule, and warranty Parallel issues with ground and parking sites

3. Understanding special purpose entities (SPEs) and other contractual risk issues

Three Issues that Often Stop Solar PPAs in their Tracks

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Why it is important? Can be a major (sometimes the largest) project revenue stream Can affect green energy accounting and communication

Why it can be overlooked? Can be complex and non-intuitive that solar projects produce

two distinct revenue streams (physical power and SRECs) Complicates the “sale” of a solar project

How it can stop or slow solar projects? Executive and Communications staff are not educated early

and, then, are told that agency is not buying green energy under certain accounting, reporting, and communication regimes and that communications language must be circumscribed

Tension between sustainability plans and financial goals of solar projects

Issue # 1: Selling or Retaining Solar Renewable Energy Credits

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Key (overlooked) stakeholders to involve early Executive Communications Finance

How and when to involve Discussion (before RFP issuance) among Executive,

Communications, Sustainability/Environment, Finance, and Procurement staff on the best decision on SRECs for the agency Sell all (to utility, private broker, regional procurement group) Retain all (to retire and be entitled to make green claims) Retain a portion Purchase substitute RECs or participate in other environmental

programs

Issue # 1: Selling or Retaining Solar Renewable Energy Credits

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Why it is important? Roofs differ greatly in their “solar- readiness”

Timing of roof replacement schedules is critical Facility roof repairs are often more expensive than solar projects Roof damage can affect property and people in building

Why it can be overlooked? Aggressive assumptions by non-engineering or non-facilities

staff about available roof space or lack of knowledge on roof vulnerability

It is always viewed as important, but often dealt with too late in the process

How it can stop or slow solar projects? Not enough solar-ready roofs available to support RFP specs Insufficient time for facilities/engineering planning Inability to integrate solar projects with roof warranty

Issue # 2: Roof Selection, Replacement Schedule, and Warranty

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Key (overlooked) stakeholders to involve early Engineering/Facilities Finance/Insurance Third-Party Project Provider

How and when to involve Conduct realistic internal or external assessment of roofs (and/or

parking and grounds) that are good candidates for solar in Year 1 Assessment should be completed as part of pre-RFP project goals,

or RFQ process can support discovery from industry experts Consider roof replacement schedules, structural integrity, shading &

roof obstructions, zoning, pitch and orientation, visual impact, size, distance to sufficient building electric load, etc.

Make sure roof warranty issuer can integrate solar project into roof warranty before transaction is finalized with solar owner Have substitute sites lined up

Include solar planning in longer-term roof replacement planning

Issue # 2: Roof Selection, Replacement Schedule, and Warranty

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Why it is important? 15- to 25-year agreement with legal entity often created to

own agency’s projects and sometimes a broader portfolio of renewable projects

Liability of agency for SPE obligations Long-term outside ownership of equipment on government

agency’s roof, parking, and/or land sites Why it can be overlooked?

PPAs are an industry standard for government agencies Contracts are sold as, and intended to be, turnkey leases

Issue # 3: Understanding SPEs and Other Contractual Risk Issues

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How it can stop or slow solar projects? Legal, Finance/Insurance, and/or Executive staff become

concerned about risks in PPA documents Final contract negotiation is not the best time to start thinking

about risk mitigation


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Key (overlooked) stakeholders to involve early Legal (ability to form entities, share risk, waive rights) Finance/Insurance (liability issues) Executive (PR impacts of corporate actions)

How and when to involve At initial project organization/feasibility meeting Contract structure and risk mitigation can affect fundamental

aspects of procurement process Whether a PPA is right for the agency, PPA size and duration,

favored provisions, types of owners desired by agency, etc. Ask for each solar bidder’s standard PPA contract during RFP

process and for its flexibility in meeting agency’s legal requirements There can be significant differences among bidders in these areas Consider having Legal integrated into bid review at some level


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Commencement

“Synchronous Operations” Successful completion of construction

and testing of the Facility Facility has synchronized with Buyer’s

distribution system

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Commencement

Seller has determined in accordance with Prudent Electric Industry Practice that the Facility is ready to deliver the Energy to the Delivery Point in accordance with the provisions of this Agreement

Written notification

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Standard of Care “Prudent Electric Industry Practice”

Practices that, at a particular time, in the exercise of reasonable judgment in light of the facts known or reasonably should have been known at the time a decision was made, could have been expected to accomplish the desired result consistent with good business practices, reliability, economy, safety and expedition.

Generally conform to operation and maintenance standards recommended by the Facility’s equipment suppliers and manufacturers, applicable Facility design limits and applicable Governmental Approvals and Applicable Law.

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Standard of Care “Prudent Electric Industry Practice”

Not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to include acceptable practices, methods or acts generally accepted.

Includes, but not limited to, practices engaged in or approved by a significant portion of the U.S. electric power generation industry.

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o Wind PPAs o Solar PPAs o Geothermal PPAs o Biomass PPAs o Landfill Gas PPAs

Overview of Key Characteristics of Renewable Technologies

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o Wind o Intermittent resource o Incremental project size o No fuel supply contracts

Key Characteristics of Wind Technologies

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Intermittent resource

• “As-delivered energy” (timing/amount of delivery not guaranteed; no capacity/reliability value)

• Payments for energy only time-of-day/seasonal pricing

• Curtailment/transmission constraint issues allocation of risk

• Transmission instability/upgrade costs

Wind PPAs

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• Availability/output guarantees ramp-up, rolling average, annual caps wind-adjusted

• COD issues no performance testing pre-COD Post-COD warranties are key

Wind PPAs (cont’d)

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Incremental project size • What is project size?

project phasing for large projects shared facilities

• When is COD? RECs available for financing

• RECs: need to define ownership and examine ability to separate them from delivered electricity – state law issue


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RECs PPA Damages should include tax and

other non-cash losses No fuel supply contracts

• No fuel pass-throughs • Force majeure issues


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Solar • Intermittent resource • Incremental project size • RECs available for financing • No fuel supply contracts • Current paradigms: customer PPAs and

utility PPAs

Key Characteristics of Solar Technologies

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Intermittent resource • Same issues as wind PPAs

Incremental project size • Same issues as wind PPAs

No fuel supply contracts • Same issues as wind PPAs

Solar PPAs

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Current paradigms: customer (retail) PPAs and utility PPAs • Customer PPAs: rooftops and parking lots

one option for financing project leaves ownership, operation issues to

seller end of term/transfer of underlying real

estate issues • Utility PPAs

mimics traditional wind PPA structures

Solar PPAs (cont’d)

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Geothermal • Non-intermittent resource • Resource degradation • Station service requirements • RECs available for financing

Key Characteristics of Geothermal Technologies

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Non-intermittent resource • Receive both capacity payments and

energy payments • Must demonstrate capacity and other

performance measures at COD and during contract (usually annually)

Geothermal PPAs

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Resource degradation • Must be incorporated into capacity/output

guarantees

• Force majeure for unexpected depletion of resource

Geothermal PPAs (cont’d)

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Station service requirements • Can be significant in order to use

geothermal resource, need to ensure associated RECs run to project

RECs available for financing

Geothermal PPAs (cont’d)

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Biomass • Non-intermittent resource • Fuel shortage and supply issues

Key Characteristics of Biomass Technologies

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Non-intermittent resource • Same issues as geothermal PPAs

Fuel storage and supply • Supply logistics extremely complex • Shortage requirements can be

burdensome • Ability to claim force majeure for third

party supplier acts/omissions critical

Biomass PPAs

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Landfill Gas • Non-intermittent resource • Resource degradation • RECs available for financing

Key Characteristics of Landfill and Digester Gas Technologies

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Non-intermittent resource • Same issues as geothermal PPAs

Supply Issues • Logistics can be extremely complex • Shortage requirements can be

burdensome • Ability to claim force majeure for third

party supplier acts/omissions critical (quality and/or quantity)

Resource degradation for LFG

Landfill and Digester Gas PPAs

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Strategies For Negotiation

What is the Market for Renewable Energy? RPS and other Required Standards Green Building/LEED Certification Voluntarily Green

Why does the lessor/seller/grantor what to contract with you? Royalty Recipient of clean energy

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Strategies For Negotiation Initial Stage of Development vs. Established

Facility

Who is the Off taker? And will the Off taker help you? IOU Local power company Private User

Long Term v. Short Term - Guessing Future Markets REC prices Energy Prices

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Post-PPA Discussion

The slides that follow address project finance considerations that are not PPA-specific.

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ESP Agreements Energy Service Provider (“ESP”)

contracts directly with its customers to provide electric supplies

Used in jurisdictions that do not allow direct access service

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ESP Agreements Power producer sells power to ESP which,

concurrently, sells power to power purchaser, most often at same price

ESP is often signatory to PPA, as buyer, as well as to separate ESP agreement with ultimate customer

ESP agreement terms must match those of PPA

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Project Documents o Good Standing Certificate o UCC Searches o Certified Copies of Insurance Policies o Balance Sheet and Financial Statements o Project Budget o Project Schedule o Notice of Establishment of Accounts and Account

Numbers from Depository o Notice to Proceed o USDA Loan Guarantee Materials o USDA Grant Materials

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Land Contracts Purchase & Sale Agreement Site Lease Real property interest Ability to obtain title insurance/lender

security Leasehold Mortgage/Fixture Filings

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Land Contracts (con’t)

License Personal property interest

Sublease or sublicense Often used for tax purposes

Access, ROW and Easement Agreements typically non-exclusive supply operational

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Lease vs. License Lease is real property interest Can be secured by a leasehold

mortgage Eligible for leasehold title insurance Notice of lease can be recorded

License is personal property interest Contractual right only Can be secured by UCC lien

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Mortgages Mortgages can be granted on any real

property interest - Fee ownership - Leasehold interest

Underlying interest must be recorded in official records in order to encumber

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Financing and Security Documents

o Financing Agreement o Promissory Note o Depository Agreement o Security Agreement o Membership Interest Pledge Agreement

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Financing and Security Documents

o Real Property Security Documents o Inter-creditor Agreement o Consents o UCC-1 Financing Statement o Guaranty Agreement (in favor of

Lender) o Forbearance and Non-disturbance

(SNDA) agreements

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Supply Solar & Wind are Free Easement to ensure non-interruption

Lease or License e.g. landfill gas, geothermal

Purchase Agreement e.g. biomass, digester gas

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Operations

Construction Agreements Operation Agreements Maintenance Agreements Interconnection Agreements

http://www.ferc.gov/industries/electric/indus-act/gi/small-gen/agreement.doc

Transmission/Distribution Agreements

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Construction, Operation & Maintenance Agreements

Turn-key facility vs component construction

Well field O & M Pipeline O & M Turbine O & M PV O & M

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Engineering, Procurement & Construction Agreement

Scope of Work/Project Schedule Compensation Terms of Payment Warranties Indemnification Insurance Termination and Cancellation Completion and Transfer Guarantees Dispute Resolution

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Permits Building Permits CUPs/LUPs Environmental

Special Disposal Requirements Emissions Generator/USTs

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Permit Process What is the timeline for issuing permits?

Do all timelines match those of leases, PPAs and loan documents?

Are public hearings required? Are hearings necessary to gain public

support?

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Thanks for Listening! LICENSE: The text of the foregoing is licensed under the Creative

Commons Attribution http://creativecommons.org/licenses/by3.0. Pursuant to this license, you may copy this PowerPoint presentation as long as you give attribution.

DISCLAIMER: The information contained in this presentation has been

prepared by Cooper, White & Cooper LLP (“Cooper”) and is not intended to constitute legal advice. Cooper has used reasonable efforts in collecting, preparing, and providing this information, but does not guarantee its accuracy, completeness, adequacy, or currency. The publication and distribution of this presentation is not intended to create, and receipt does not constitute an attorney client relationship

COPYRIGHT © 2014, Kristen Thall Peters & Darin Lowder. All rights reserved.

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Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego

Power Purchase Agreements — Best Practices and How to Avoid Pitfalls, Snafus and Faux Pas… Presented by: David A. Soldani, Esq.

What is a Power Purchase Agreement or “PPA”?

A Power Purchase Agreement (“PPA”) is a legal contract between a power generator and a power purchaser under which the power purchaser purchases energy from the power generator.

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Who are the Players in a Typical PPA? 1. Owner — Private Companies or Public Entities (i.e.,

City, County, School District, College, etc. (Often referred to as “Host”)

2. Vendor (Chevron, BP Solar, Solar City, etc.)

3. Financier (B of A Pub Capital Corp., GE Capital) 4. Manufacturer (Sunpower, Applied Solar, etc.) 5. Installer (Affiliated or Independent contractor(s)) 6. Utility (PG&E, SoCal Edison, etc.)

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Power Purchase Agreements The Power Purchase Agreement (PPA) is one alternative to financing and owning an energy generating system. Advantages: - It offers the owner an opportunity to obtain power without paying upfront costs - Owner usually doesn’t have to worry about system operation and maintenance. - Provides 15-25 years of predictable, pre-set power prices.

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Alternatives to Power Purchase Agreement

1. Direct Purchase Model 2. Lease/Purchase Option

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An owner can purchase a system outright or through a lease-purchase transaction utilizing a combination of bonds, credits, grants, loans, rebates and cash reserves Advantages: - Can involve less contracting complexity - Increases the value of the owner’s facility - May make better financial sense

Alternatives to Power Purchase Agreement

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Top 10 Mistakes Owners Make When Pursuing Power Purchase Agreements

10. Failing to Comprehend their Actual Power Usage Before Pursuing an Alternative Energy Solution

– Energy Audits and Assessments – Free and low costs assessment resources – The California Energy Commission can provide free or

reduced cost assessment if certain conditions are met (http://www.energy.ca.gov/)

– The Center for Sustainable Energy can also provide free or reduced cost assessment (http://energycenter.org/)

– The California Energy Commission's existing Energy Conservation Assistance Account Program (ECAA) makes low interest loans available for investments in energy efficiency and carbon emissions reduction

– Local utilities have various programs that provide free or subsidized energy auditing

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• Deliverables from the Owner –Historical Utility Usage and Cost Data –Projected Future Energy Requirements – Master

Planning Issues

• Access to Records and Sites

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9. Failing to implement energy efficiency measures prior to determining system size – The more energy efficient your facilities are, the

smaller (and less expensive) the system will need to be.

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Energy Efficiency Contracts • Use Results of Energy Efficiency and Projected

Energy Requirements Analyses • Analyze Cost of Solution • Analyze Cost of Energy Post-Solution

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Top 10 Mistakes Owners Make When Pursuing Power Purchase Agreements 8. Failing to make prospective vendors compete by

utilizing a competitive RFQ/RFP process

– Don’t just use the first vendor that approaches you. In this highly-competitive environment, you’re better served in requiring the vendors to compete for your business.

– Don’t worry about having every last detailed engineering

aspect sorted out prior to the RFP. Let the vendors provide different options to give you ideas on how best to structure the transaction.

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7. Failing to retain appropriate expertise The Right Power Company Whether it’s solar, wind, geothermal or

other alternative energy source, consider the company behind it:

- Corporate History - Record of Past Performance - Good References

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Engineer/Construction Manager - Installation Experience - Relevant Private or Public Project Experience - Successful past collaboration with Alternative

Energy Provider and Installers

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Financial Consultant

- Aggressive and independent verification of financial and cost escalation assumptions provided by Vendor

- Experience with financing of similar systems

under PPA and Direct Purchase Models

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Legal Consultant

- Experience with all phases of project, from initial consideration, through RFP selection process, through PPA negotiation and construction and operation of project

- Demonstrated ability to effectively coordinate owner’s team

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Environmental Consultant

• Familiarity with the particular environmental conditions where system installation is proposed

• Past experience with applicable environmental regulatory schemes and their impact on the particular energy source and apparatus (i.e., NEPA, CEQA, etc.)

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• Assembling the right team with the right expertise is critical to insuring you obtain the best arrangement possible.

• Alternative energy PPAs involve complex financial, legal, environmental and construction considerations.

• The vendor’s job is to look out for the vendor. Who’s looking out for you?


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6. Failing to obtain aggressive energy production guarantees

Guarantees That Preserve the Economic

Benefit Enjoyed By The District - Minimum Production Guarantees - Metering Accuracy Guarantees

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Top 10 Mistakes Owners Make When Pursuing Power Purchase Agreements 5. Failing to conduct proper project analysis under

the applicable environmental and other legal and regulatory schemes

Many PPA projects generate light, wind, or heat and their installation in some cases may displace or harm threatened wildlife species.

In some cases, failing to conduct appropriate environmental review leaves the project vulnerable to legal challenge.

For public owners, funding source may dictate a specific

and/or competitive process to qualify for funding, i.e., Proposition 39 in California

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4. Accepting a PPA term that is too long. As technology in the advances, we will see

more efficient and less expensive equipment, which in turn, will have a significant impact on the current economics of the PPA.

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What were cell phones like 25 years ago?

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How About Computers?

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3. Failing to Insure that the anticipated cost to the Host of the energy services will be less than the avoided costs if the services were not utilized.

In some states, like California, this is a legal requirement for publically-owned facilities that wish to contract outside of a competitive low-bid procurement process.

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Top 10 Mistakes Owners Make When Pursuing Power Purchase Agreements 2. Failing to consider direct purchase as an

alternative to a PPA Because of the falling costs of some systems and the

availability of credits, rebates, grants and opportunities for selling bonds and obtaining other financing, the economics of ownership may be a preferred option for.

The right financial consultant can help you understand the “true” cost difference between ownership and a PPA.

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1. Failing to look into alternative power arrangements now…

Given the long-term savings opportunities achieved through lower system costs coupled with the availability of rebates, credits and grants, given the current challenging fiscal environment, owners should look into alternative energy solutions as a part of its long-term fiscal strategy.

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Do’s and Don’ts for Approaching Public Owners for PPA Projects

DO’S - Understand the legal framework under which the owner

has to operate in pursuing such projects

- Get to know the particular challenges unique to public owners in their pursuit of alternative power arrangements

- Figure out the local politics around the issue - Understand who the decisionmakers are and how they

make decisions.

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Do’s and Don’ts for Approaching Public Owners for PPA Projects

DON’TS • No hard sells — Don’t come across as a used car

salesperson • No end run around the decisionmakers • No violation of conflict of interest laws — i.e., taking

board members or council members out on golf junkets then failing to report

• Failing to understand the framework (and restrictions) inherent in public works projects

•

For questions or comments, please contact: Thank You

David A. Soldani (559) 225-6700

[email protected]