BEC-23: Can you please confirm what constitutes a failure “to deliver all or part of the Product” under Paragraph 2(a) Seller’s Failure to Deliver of the (AIC) Capacity Agreement? What is due by the “Delivery Deadline” in that paragraph? Is there a penalty under the (AIC) Capacity Agreement if the Planning Resource associated with the Product does not meet its obligations in MISO’s energy market?

The following is a summary of certain paragraphs of the (AIC) Confirmation Agreement. It is the responsibility of the bidder to review and understand the governing documents related to the Fall 2023 BEC RFP. The governing documents are posted to the procurement website and include the contract documents, including the (AIC) Capacity Agreement, posted on July 18, 2023 and the RFP documents posted on July 19, 2023.

Paragraph 2(a) Seller’s Failure to Deliver refers to delivery of the Product, which is Zonal Resource Credits (“ZRCs”) as defined in the “MISO Documents” referenced in the (AIC) Capacity Agreement. Such ZRCs must qualify to satisfy the resource adequacy requirements in each Local Resource Zone of Module E of the MISO Tariff. As described in Paragraph 1. Performance, Title, & Delivery, Seller shall be responsible for the proper registration in MISO of the Planning Resource(s) from which the Product originates (each a “Contract Planning Resource”). Seller shall also be obligated to (i) meet and perform, or cause a third party to meet and perform, all of the obligations of the MISO Documents associated with such Contract Planning Resource(s) and (ii) ensure that the Contract Planning Resource(s) remains available and qualified as a Capacity Resource and participates in the MISO market in accordance with the MISO Documents during the entirety of the applicable Season and not have a status change to “retired” or “suspended” or similar designation. Seller shall be responsible for any costs or charges imposed on or liabilities associated with such obligations or Seller’s failure to meet and perform such obligations, including any costs or charges resulting from Buyer’s procurement of replacement capacity.

By the Delivery Deadline, Seller shall accomplish delivery of ZRCs for a Season of a particular Planning Year by submitting the appropriate transaction(s) in the Module E Capacity Tracking Tool (“MECT”). If Seller fails to deliver all or part of the Product specified for each Delivery Deadline of a Season and Source Zone by the relevant Delivery Deadline and such failure is not excused by a result of Buyer’s failure to perform or excused by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, an amount equal to the positive difference, if any, obtained by subtracting the applicable Contract Price from the Auction Clearing Price of the Compliance Zone Auction Clearing Price applicable to such Season multiplied by the days in Planning Year the applicable Season and multiplying such positive amount, if any, by the portion of the Contract Quantity which Seller failed to deliver.

In addition, the Seller shall pay to Buyer all penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product or due to all or part of the Product being invalid or ineligible; provided, however, that Seller shall not be liable for any Capacity Deficiency Charges or similar penalties assessed to Buyer resulting from Buyer’s election to become deficient in the Planning Resource Auction.