EXECUTION VERSION
HAYPRESS HYDROELECTRIC PROJECT
RENEWABLE POWER PURCHASE AGREEMENT
BETWEEN
EIF HAYPRESS, LLC
AND
CITY OF ANAHEIM, CALIFORNIA
ARTICLE 1 DEFINITIONS ............................................................................................................1 ARTICLE 2 TERM........................................................................................................................14
2.1 Contract Term. .................................................................................................... 14
2.2 Delivery Term...................................................................................................... 15 ARTICLE 3 PURCHASE AND SALE .........................................................................................15
3.1 Purchase and Sale of Product. ........................................................................... 15
3.2 Sale of Green Attributes. .................................................................................... 15
3.3 Compensation. ..................................................................................................... 15
3.4 Imbalance Energy. .............................................................................................. 16
3.5 Ownership of Renewable Energy Incentives. ................................................... 16
3.6 Reserved. .............................................................................................................. 16
3.7 Capacity Attributes. ............................................................................................ 16
3.8 CEC Certification and Verification. ................................................................. 16
3.9 Reserved. .............................................................................................................. 16
3.10 RPS Standard Terms and Conditions. .............................................................. 16
3.11 Compliance Expenditure Cap. ........................................................................... 17
3.12 Availability Guarantee…………………………………………………………18
3.13 Change in Market Structure…..………………………………………………18
ARTICLE 4 OBLIGATIONS AND DELIVERIES ......................................................................19
4.1 Delivery. ............................................................................................................... 19
4.2 Title and Risk of Loss. ........................................................................................ 19
4.3 Forecasting........................................................................................................... 19
4.4 Curtailment. ........................................................................................................ 20
4.5 Seller Equipment Required for Curtailment Instruction Communications. ................................................................................................ 20
4.6 Reduction in Delivery Obligation. ..................................................................... 20
4.7 Reserved. .............................................................................................................. 21
4.8 WREGIS. ............................................................................................................. 21 ARTICLE 5 TAXES ......................................................................................................................22
5.1 Allocation of Taxes and Charges. ...................................................................... 22
5.2 Cooperation. ........................................................................................................ 22 ARTICLE 6 MAINTENANCE OF THE FACILITY ...................................................................23
6.1 Maintenance of the Facility. ............................................................................... 23
6.2 Maintenance of Health and Safety. ................................................................... 23
6.3 Shared Facilities. ................................................................................................. 23 ARTICLE 7 METERING ..............................................................................................................23
7.1 Metering. .............................................................................................................. 23
7.2 Meter Verification. .............................................................................................. 23 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ...............................................................24
8.1 Invoicing............................................................................................................... 24
8.2 Payment. .............................................................................................................. 24
8.3 Books and Records. ............................................................................................. 25
8.4 Billing Disputes.................................................................................................... 25
8.5 Netting of Payments. ........................................................................................... 25
8.6 Progress Reports ................................................................................................. 25
8.7 Seller’s Performance Security. .......................................................................... 25 ARTICLE 9 NOTICES ..................................................................................................................27
9.1 Addresses for the Delivery of Notices................................................................ 27
9.2 Acceptable Means of Delivering Notice. ........................................................... 27 ARTICLE 10 FORCE MAJEURE ................................................................................................28
10.1 Definition. ............................................................................................................ 28
10.2 No Liability If a Force Majeure Event Occurs ................................................ 28
10.3 Notice. ................................................................................................................... 29
10.4 Termination Following Force Majeure Event .................................................. 29 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ........................................................29
11.1 Events of Default ................................................................................................. 29
11.2 Remedies; Declaration of Early Termination Date. ........................................ 30
11.3 Rights And Remedies Are Cumulative ............................................................. 30 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES............31
12.1 No Consequential Damages. ............................................................................... 31
12.2 Waiver and Exclusion of Other Damages. ........................................................ 31 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY .............................32
13.1 Seller’s Representations and Warranties. ........................................................ 32
13.2 Buyer’s Representations and Warranties ......................................................... 33
13.3 General Covenants .............................................................................................. 33 ARTICLE 14 ASSIGNMENT .......................................................................................................34
14.1 General Prohibition on Assignments ................................................................ 34
14.2 Financing Assignment ........................................................................................ 34 ARTICLE 15 DISPUTE RESOLUTION ......................................................................................34
15.1 Venue/Choice of Law. ......................................................................................... 34
15.2 Dispute Resolution. ............................................................................................. 35 ARTICLE 16 INDEMNIFICATION .............................................................................................35
16.1 Indemnity. ............................................................................................................ 35
16.2 Notice of Claim. ................................................................................................... 35
16.3 Failure to Provide Notice.................................................................................... 36
16.4 Defense of Claims. ............................................................................................... 36
16.5 Subrogation of Rights. ........................................................................................ 36
16.6 Rights and Remedies are Cumulative. .............................................................. 36 ARTICLE 17 INSURANCE ..........................................................................................................37
17.1 Insurance ............................................................................................................. 37 ARTICLE 18 CONFIDENTIAL INFORMATION ......................................................................39
18.1 Definition of Confidential Information. ............................................................ 39
18.2 Duty to Maintain Confidentiality. ..................................................................... 39
18.3 Irreparable Injury; Remedies. ........................................................................... 39
18.4 Disclosure to Lenders, Etc.. ................................................................................ 39 ARTICLE 19 MISCELLANEOUS ...............................................................................................40
19.1 Entire Agreement; Integration; Exhibits.......................................................... 40
19.2 Amendments. ....................................................................................................... 40
19.3 No Waiver. ........................................................................................................... 40
19.4 No Agency, Partnership, Joint Venture or Lease. ........................................... 40
19.5 Severability. ......................................................................................................... 40
19.6 Mobile-Sierra....................................................................................................... 40
19.7 Counterparts; Electronic Signatures. ............................................................... 41
19.8 Binding Effect. ..................................................................................................... 41
19.9 Further Assurances ............................................................................................. 41 Exhibits:
Exhibit A Facility Description
Exhibit B Map of the Facility
Exhibit C Metering Diagram
Exhibit D Annual Price Escalation
Factor (%)
Exhibit E Forecasting and Scheduling Requirements
and Procedures
Exhibit F Scheduling Coordinator ’s Responsibilities
Exhibit G Notices
Exhibit H Form of Letter of Credit
RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“Agreement”) is entered into as of the latest date of execution set forth below opposite the names of the signatories (the “Effective Date”) by and between EIF HAYPRESS, LLC, a Delaware limited liability company (“Seller”), and the CITY OF ANAHEIM, a California municipal corporation (“Buyer” or “Anaheim”).
Seller and Buyer are sometimes referred to herein individually as a “Party” and jointly as the “Parties.”
RECITALS
A. WHEREAS, Seller owns and operates the Facility, which has been constructed and is currently operating; and
B. WHEREAS, on February 17, 2023, Seller issued a request for offers (“RFO”) to offer renewable hydroelectric resources; and
C. WHEREAS, Buyer responded to the RFO, and following negotiation Seller agreed to sell to Buyer, and Buyer agreed to purchase, certain renewable energy, including the associated capacity rights and environmental attributes from one of Seller’s hydroelectric power plants located in Northern California, which in aggregate has a total capacity of 12.5 MW; and D. WHEREAS, Buyer needs long-term sources of renewable energy to satisfy Buyer’s renewable portfolio standard requirements and desires to acquire reliable hydroelectric power generation to assist in meeting its requirements. Accordingly, Buyer has determined that it is desirable to enter into this Agreement to procure such hydroelectric renewable generation; and E. WHEREAS, Seller desires to sell and Buyer desires to purchase the Product pursuant to the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:
ARTICLE 1
DEFINITIONS
Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
1.1 “AC ” means alternating current.
1.2 “Accepted Compliance Costs” has the meaning set forth in Section 3.11.
1.3 “Affiliate” means, with respect to any Person, another Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee”, “control” (including, with correlative meanings, the terms, “controlled by”, and “under common control with”), as used with 2 respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50 %) of the equity or o ther ownership interest in such Person; or (b) the right to direct the policies or operations of such Person.
1.4 “Agreement” has the meaning set forth in the Preamble and includes the Exhibits, schedules, and any written supplements attached hereto as well as any collateral, credit support, or similar arrangement designated herein between the Parties.
1.5 “A ncillary Services ” means all ancillary services, products, and other attributes, if any, associated with the Contract Capacity of the Facility.
1.6 “Availability Guarantee” has the meaning set forth in Section 3.12.
1.7 “Available Generating Capacity” means the capacity of the Facility, expressed in whole MWs, that is mechanically available to generate Energy.
1.8 “A vailable Hours ” means the total hours during the measurement period less the hours the Facility is unable to generate energy due to a Force Majeure Event, System Emergency, Buyer Default, Curtailment Period, or Buyer Curtailment Period.
1.9 “B ankrupt ” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes, or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorgani zation, or similar Law ; (b) has any such petition filed or commenced against it, which remains unstayed or undismissed for a period of ninety (90) days; (c) makes an assignment or any general arrangement for the benefit of creditors; (d) otherwise becomes bankrupt or insolvent (however evidenced) ; (e) has a liquidator, administrator, receiver, trustee, conservator, or similar official appointed with respect to it or any substantial portion of its property or assets ; or (f) is generally unable to pay its debts as they fall due.
1.10 “B usiness Day ” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. Pacific Standard Time (PST) for the Party sending a Notice or payment or performing a specified action.
1.11 “B uyer” means Anaheim, a California municipal corporation.
1.12 “Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce Delivered Energy from the Facility by the amount and for the period of time specified in such instruction for reasons unrelated to a Planned Outage, Forced Facility Outage, Force Majeure Event, or Curtailment Order, as more particularly described in Section 4.4. A Buyer Curtailment Order shall include a curtailment of a Self-Scheduled energy award from the CAISO.
1.13 “Buyer Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces Delivered Energy from the Facility pursuant to or as a result of a Buyer Curtailment Order; provided, that the duration of any Buyer Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up. 3 1.14 “Buyer Default ” means a failure by Buyer (or its agents) to perform Buyer’s obligations hereunder and includes an Event of Default of Buyer.
1.15 “Buyer’s WREGIS Account” has the meaning set forth in Section 4.8(a).
1.16 “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
1.17 “C AISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intel ligence gateway, telemetering equipment, and data acquisition services sufficient for monitoring, recording, and reporting, in real time, all Delivered Energy delivered to the Delivery Point.
1.18 “C AISO Grid ” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
1.19 “C AISO Operating Instructions ” means the “operating instructions ” defined in section 37.2.1.1 of the CAISO Tariff, as required.
1.20 “CAI SO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures , and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC.
1.21 “C alifornia Renewables Portfolio Standard” or “ RPS” means the renewable energy program and policies established by California State Senate Bills 1038 (2002), 1078 (2002), 107 (2008), X-1 2 (2011), 350 (2015), and 100 (2018) as codified in, inter alia , California Public Utilities Code s ections 399.11 through 399.31 and California Public Resources Code s ections 25740 through 25751, as such provisions are amended or supplemented from time to time.
1.22 “C
apacity Attribute ” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power , represented by the Contract Capacity , that the Facility can generate and deliver to the Delivery Point at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits.
1.23 “ CEC” means the California Energy Commission or any successor agency performing similar statutory functions.
1.24 “C EC Certification and Verification ” means that the CEC has certified that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Delivered Energy delivered to the Delivery Point qualifies as generation from an Eligible Renewable Energy Resource.
1.25 “Claim” has the meaning set forth in Section 16.2.
1.26 “Compliance Actions” has the meaning set forth in Section 3.11. 4 1.27 “Compliance Expenditure Cap” has the meaning set forth in Section 3.11.
1.28 “Confidential Information” has the meaning set forth in Section 18.1.
1.29 “Contract Capacity” means the amount of generating capacity of the Facility as measured in MW at the Delivery Point, as specified in Exhibit A.
1.30 “Contract Price” has the meaning set forth in Exhibit A.
1.31 “Contract Term” has the meaning set forth in Section 2.1.
1.32 “Contract Year ” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commencement Date, and each subsequent Contract Year shall commence on the anniversary of the Commencement Date.
1.33 “C osts ” means, with respect to the Non -Defaulting Party, brokerage fees, commissions, and other similar third-party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements that replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement.
1.34 “CP UC ” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
1.35 “C redit Rating ” means with respect to any entity, on the relevant date of determination, the respective ratin gs then assigned to such entity’s unsecured, senior , long-term debt (not supported by third party credit enhancement) by S&P, Fitch, or Moody’s.
1.36 “C urtailment Order” means any of the following:
• CAISO orders, directs, alerts, or provide d notice to a Party, including a CAISO Operating Instruction, that such Party is required to curtail deliveries of Delivered Energy for the following reasons: (i) any System Emergency, or (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation that jeopardizes CAISO’s electric system integrity or the integrity of other systems to which CAISO is connected;
• a curtailment ordered by the Participating Transmission Owner for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment d amage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast , or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected;
• a curtailment ordered by CAISO or the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s 5 transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Delivered Energy to the Delivery Point; or
• a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Participating Transmission Owner or distribution operator.
1.37 “Curtailment Period ” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation from the Facility pursuant to a Curtailment Order; provided that the Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
1.38 “D eemed Delivered Energy ” means the amount of Delivered Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Point but that is not produced by the Facility during a Buyer Curtailment Period, which amount shall be the energy scheduled per the WECC Pre- Schedule Calendar applicable to the Buyer Curtailment Period, if any.
1.39 “Defaulting Party” has the meaning set forth in Section 11.1(a).
1.40 “Deficient Month” has the meaning set forth in Section 4.8(d).
1.41 “Delivered Energy ” means for each hour, the electric energy generated by the Facility that is net of Electrical Losses and Station Use and that is delivered to the Delivery Point, as measured by the Facility Meter.
1.42 “D elivery Point ” has the meaning set forth in Exhibit A.
1.43 “Delivery Term ” shall mean fifteen (15) Contract Years beginning on the Commencement Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
1.44 “Early Termination Date” has the meaning set forth in Section 11.2(a).
1.45 “Effective Date” has the meaning set forth in the Preamble.
1.46 “Electrical Losses” means all transmission or transformation losses or gains between the Facility and the Delivery Point, including losses or gains associated with delivery of Delivered Energy to the Delivery Point.
1.47 “E ligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code section 399.12(e) and California Public Resources Code section 25741(a), as either code provision is amended or supplemented from time to time.
1.48 “E nergy ” means electrical energy generated by the Facility.
1.49 “Event of Default” has the meaning set forth in Section 11.1.
1.50 “Excess Expenditure Notice” has the meaning set forth in Section 3.11. 6 1.51 “Facility” means the hydro generating facilities described in Exhibit A, located at the Site and including mechanical equipment and associated facilities and equipment required to deliver Energy to the Delivery Point.
1.52 “F acility Meter ” means the CAISO Approved Meter that will measure all electric energy generated by the Facility, including Delivered Energy. Without limiting Seller’s obligation to deliver Delivered Energy to the Delivery Point, the Facility Meter may be located at the low voltage or the high voltage side of the main step -up transformer, and Delivered Energy will be subject to adjustment in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use.
1.53 “F
ERC” means the F ederal Energy Regulatory Commission or any successor government agency.
1.54 “Force Majeure Event” has the meaning set forth in Section 10.1.
1.55 “Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Energy or making Delivered Energy available at the Delivery Point and that is not the result of a Force Majeure Event.
1.56 “Forward Certificate Transfers” has the meaning set forth in Section 4.8(a).
1.57 “Full Capacity Deliverability Status ” has the meaning set forth in the CAISO Tariff.
1.58 “G overnmental Authority ” means any federal, state, provincial, local , or municipal government, any political subdivision thereof or any other governmental, congressional, or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO; provided, however, that “Governmental Authority” shall not in any event include any Party.
1.59 “G
reen Attributes ” me ans any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil , or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) , and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride , and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability, or other power attributes from the Facility, (ii) Renewable Energy Incentives, (iii) production or investment tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iv) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local 7 subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (v) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating, or air quality permits.
1.60 “Green Attribute Component Price” shall mean, for purposes of invoicing under ARTICLE 8, that portion of the Contract Price that Seller shall not invoice to Buyer for Product until the Green Attributes associated with Delivered Energy for a partic ular month has been transferred to Buyer in WREGIS, which amount shall equal twenty dollars per MWh ($20/MWh).
1.61 “Green Tag Reporting Rights ” means the right of a purchaser of renewable energy to report ownership of accumulated “green tags” in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under section 1605(b) of the Energy Policy Act of 1992 and any present or future federal, state , or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules.
1.62 “I
mbalance Energy ” means the amount of Instructed Energy or Uninstructed Energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Delivered Energy deviates from the amount of Scheduled Energy.
1.63 “Indemnifiable Loss(es)” has the meaning set forth in Section 16.1.
1.64 “Initial Synchronization” means the initial delivery of Delivered Energy to the Delivery Point.
1.65 “ Instructed Energy” has the meaning set forth in the CAISO Tariff.
1.66 “Interconnection Agreement” means the interconnection agreement entered into by Seller pursuant to which the Facility will be interconnected with the Transmission System, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated, and maintained during the Contract Term.
1.67 “I
nterconnection Facilities ” means the interconnection facilities, control and protective devices, and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreement.
1.68 “Interest Rate” has the meaning set forth in Section 8.2.
1.69 “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff.
1.70 “ITC” means the investment tax credit established pursuant to s ection 48 of the United States Internal Revenue Code of 1986.
1.71 “L aw ” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
1.72 “L
ender” means, collectively, any Person (i) providing senior or subordinated construction, interim, back leverage , or long- term debt, equity, or tax equity financing or 8 refinancing for or in connection with the development, construction, purchase, installation, or operation of the Facility, whether that financing or refinancing takes the form of private debt (including back- leverage debt), equity (including tax equity), public debt, or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller or its Affiliates, and any trustee or agent or similar representative acting on their behalf, (ii) providing Interest Rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of t he foregoing obligations , or (iii) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility.
1.73 “Letter(s) of Credit” means one or more irrevocable, nontransferable , standby letters of credit, substantially in the form of Exhibit H and acceptable to Buyer , or in such other form as agreed to by the Parties, provided by Seller from an issuer acceptable to Buyer that is a U.S. commercial bank having a Credit Rating of at least: (a) “A-”, or equivalent, from at least two of the three ratings agencies (i.e., S&P, Fitch, and Moody’s); or (b) one “AA-”, or equivalent, from S&P, Fitch, or Moody’s, if such entity is rated by only one of the ratings agencies. The term of the Letter of Credit must extend to at least sixty (60) days beyond the last possible payment due date of the transaction. Seller must bear the costs of all Letters of Credit.
1.74 “L
etter of Credit Default” means with respect to a Letter of Credit, the occurrence of any of the following events:
1. The issuer of the Letter of Credit fails to comply with or perform its obligations under such Letter of Credit;
2. The issuer of the Letter of Credit disaffirms, disclaims, repudiates, or rejects, in whole or in part, or challenges the validity of, the Letter of Credit;
3. The Letter of Credit fails or ceases to be in full force and effect at any time;
4. Seller fails to provide an extended or replacement Letter of Credit within twenty (20) Business Days before the Letter of Credit expires or terminates; or
5. The issuer of the Letter of Credit becomes Bankrupt; provided, no Letter of Credit Default will occur or be continuing in any event with respect to a Letter of Credit after the time such Letter of Credit is required to be canceled or returned to a Party in accordance with the terms of this Agreement.
1.75 “Letter of Credit Derating” means the issuer of a Letter of Credit fails to maintain a Credit Rating of at least : (a) “A-”, or equivalent, from at least two of the three ratings agencies (i.e., S&P, Fitch, and Moody’s); or (b) one “AA-”, or equivalent, from S&P, Fitch, or Moody’s, if such entity is rated by only one of the ratings agencies.
1.76 “L icensed Professional Engineer” means an independent, pr ofessional engineer selected by Seller and reasonably acceptable to Buyer.
9 1.77 “Milestones” means the development activities for significant permitting, interconnection, financing, and construction milestones set forth in Exhibit A.
1.78 “MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
1.79 “MW h” means megawatt -hour measured in alternating current, unless expressly stated in terms of direct current.
1.80 “N et Qualifying Capacity” or “NQC” has the meaning set forth in the CAISO Tariff.
1.81 “N etwork Upgrades ” has the meaning set forth in the CAISO Tariff.
1.82 “Non-Defaulting Party” has the meaning set forth in Section 11.2.
1.83 “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile, or electronic messaging (e-mail).
1.84 “Notice of Claim” has the meaning set forth in Section 16.2.
1.85 “Operating Procedures” has the meaning set forth in the CAISO Tariff.
1.86 “Participating Transmission Owner ” or “PTO ” means an entity that owns, operates, and maintains transmission or distribution lines and associated facilities or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is set forth in Exhibit A.
1.87 “Party” or “Parties” has the meaning set forth in the Preamble.
1.88 “Performance Security ” means collateral for Seller’s performance under this Agreement in the form of a Letter of Credit in the amount set forth in Section 8.7.
1.89 “Person” means any individual, sole propriet orship, corporation, limited liability company, limited or general partnership, joint venture, association, joint -stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity, or other entity.
1.90 “P
G&E ” means t he Pacific Gas and Electric Company, a subsidiary of PG&E Corporation.
1.91 “P Node ” has the meaning set forth in the CAISO Tariff.
1.92 “PNode Price” has the meaning set forth in Section 3.10.
1.93 “Planned Outage” has the meaning set forth in Section 4.6(a). 10 1.94 “Portfolio Content Category” means PCC1, PCC2, or PCC3, as applicable.
1.95 “Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricit y from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
1.96 “P roduct ” has the meaning set forth in Exhibit A.
1.97 “Progress Report” means a progress report described in Section 8.6.
1.98 “Prudent Operating Practice ” means (a) the applicable practices, methods , and acts required by or consistent with applicable Laws and reliability criteria and otherwise engaged in or approve d by a significant portion of the electric utility and independent power producer industry during the relevant time period with respect to grid- interconnected, utility-scale hydro generating facilities in the Western United States, or (b) any of the practices, methods , and acts that, in the exercise of reasonable judgement in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reli ability, safety , and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method , or act to the exclusion of all others, but rather to acceptable practices, methods, or acts generally accepted in the independent power producer industry with respect to grid -interconnected, utility-scale generating facilities in the Western United States. Prudent Operating Practice includes compliance with applicable Laws, applicable reliability criteria, and the criteria, rules , and standards promulgated inbuyer the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules , and standards of any successor organizations.
1.99 “PT
C ” means the production tax credit established pursuant to s ection 45 of the United States Internal Revenue Code of 1986.
1.100 “Qu alified Institution ” means the domestic office of a commercial bank or trust company organized under the laws of the United States that has at least ten b illion dollars ($10,000,000,000) of assets and has a long-term debt rating from at least two Rating Agencies of at least “A -” or equivalent (or if only one rating is available, a rating of at least “AA -” or equivalent) acceptable to Buyer.
1.101 “Q ualifying Capacity” or “ QC” has the meaning set forth in the CAISO Tariff.
1.102 “Rating Agencies ” means Fitch Ratings ( “Fitch”), Moody’s Investor Services (“Moody’s”), and S&P Global Ratings ( “S&P”), or an entity of similar standing acceptable to Buyer.
1.103 “R eal -Time Forecast ” means any Notice of any change to the Available Generating Capacity or hourly expected Energy delivered by or on behalf of Seller pursuant to Section
4.3. 1.104 “Real-Time Market” has the meaning set forth in the CAISO Tariff. 11 1.105 “Real-Time Price ” means the Resource- Specific Settlement Interval LMP as defined in the CAISO Tariff. If there is more than one applicable Real -Time Price for the same period of time, Real-Time Price shall mean the price associated with the smallest time interval.
1.106 “R enewable Energy Credit ” has the meaning set forth in California Public Utilities Code s ection 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.
1.107 “R enewable Energy Incentives ” means: (a) all federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including credits under s ections 38, 45, 46 and 48 of the Internal Revenue Code of 1986, as amended); (b) any federal, state, or local grants, subsidies , or other like benefits relating in any way to the Facility; and (c) any other form of incentive relating in any way to the Fac ility that is not a Green Attribute.
1.108 “Replacement Price” has the meaning set forth in Section 3.10.
1.109 “Resource Adequacy Benefits ” means the rights and privileges at tached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and includes any local, zonal or otherwise locational attributes associated with the Facility, in addition to flex attributes, if applicable.
1.110 “R
esource Adequacy Rulings ” means CPUC Decisions 04 -01-050, 04- 10-035, 05-10-042, 06-04- 040, 06-06- 064, 06-07- 031 06-07- 031, 07-06- 029, 08-06- 031, 09-06-028, 10-06-036, 11-06- 022, 12-06- 025, 13-06- 024 and any other existing or subsequent ruling or decision, or any other resource adequacy Law, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Delivery Term.
1.111 “Sc
hedule ” has the meaning set forth in the CAISO Tariff, and “Scheduled” has a corollary meaning.
1.112 “Sc heduled Energy ” means the Delivered Energy that clears under the applicable CAISO market based on the final Day-Ahead Schedule, FMM Schedule, or Five-Minute Schedule (as defined in the CAISO Tariff), or any other financially binding Schedule, market instruction, or dispatch for the Facility for a given period of time implemented in accordance with the CAISO Tariff.
1.113 “Sc
heduling Coordinator ” or “SC ” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
1.114 “S
elf -Schedule” has the mean ing set forth in the CAISO Tariff , and “ Self- Scheduled” has a corollary meaning.
1.115 “Seller” means EIF Haypress, LLC.
12 1.116 “Seller’s WREGIS Account” has the meaning set forth in Section 4.8(a).
1.117 “Settlement Interval” has the meaning set forth in the CAISO Tariff.
1.118 “Settlement Period” has the meaning set forth in the CAISO Tariff.
1.119 “Shared Facilities ” means the gen -tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of energy from the Facility (which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
1.120 “S
ite ” means the real property on which the Facility is or will be located, as further described in Exhibit A.
1.121 “Site Control” means that Seller (or, prior to the Delivery Term, its Affiliate): (a) owns, has executed a binding purchase contract for, or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site.
1.122 “S
tation Use ” means:
• The Energy produced by the Facility that is used within the Facility to power the lights, motors, pumps, control systems, and other electrical loads that are necessary for operation of the Facility, whether or not located at the powerhouse or elsewhere as part of the system that comprises the Facility, even if the same is netted through more than one meter; and
• The Energy produced by the Facility that is consumed within the Facility’s electric energy distribution system as losses.
1.123 “System Emergency ” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) to preserve Transmission System reliability.
1.124 “T
ax” or “Taxes ” means all U.S. federal, state, and local and any foreign taxes, levies, assessments, surcharges, duties , and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp , transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest, or assessment related thereto.
1.125 “T
ax Credits ” means the PTC, ITC , and any other state, local , or federal production tax credit, depreciation benefit, tax deduction or investment tax credit specific to the production of renewable energy or investments in renewable energy facilities.
1.126 “Terminated Transaction” has the meaning set forth in Section 11.2(a). 13 1.127 “Total Facility Capacity” has the meaning set forth in Exhibit A.
1.128 “Transmission Provider” means any entity or entities transmitting or transporting the Delivered Energy on behalf of Seller or Buyer to or from the Delivery Point.
1.129 “T ransmission System ” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service within the CAISO grid from the Delivery Point.
1.130 “U ltimate Parent ” means Grey Rock Hydro LLC, a Utah limited liability company.
1.131 “U ninstructed Energy ” has the meaning set forth in the CAISO Tariff.
1.132 “WECC Pre-Schedule Calendar” means the annual Preschedule Calendar set by the Western Electricity Coordinating Council that defines the timing for scheduling of energy for new months and approved holidays.
1.133 “W REGIS ” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
1.134 “WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(d).
1.135 “WREGIS Certificates ” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
1.136 “W
REGIS Operating Rules ” means those operating rules and requirements adopted by WREGIS as of May 1, 2018, as subsequently amended, supplemented or r eplaced (in whole or in part) from time to time.
1.137 R ules of Interpretation . In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
• headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement;
• words importing the singular include the plural and vice versa , and the masculine, feminine, and neuter genders include all genders;
• the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
• a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
14 • a reference to a document or agreement, including this Agreement means such document, agreement, or this Agreement, including any amendment or supplement to, or replacement, novation, or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation, or modification made in breach of such document, agreement, or this Agreement;
• a reference to a Person includes that Person’s successors and permitted assigns; • the term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; • references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires;
• in the event of a conflict, a mathematical formula or other precise description o f a concept or a term shall prevail over words providing a more general description of a concept or a term;
• references to any amount of money shall mean a reference to the amount in United States Dollars;
• words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally ac cepted technical or trade meanings, shall have such recognized meanings; and • each Party acknowledges that it was represented by counsel in connection with this Agreement or given the opportunity to be represented by counsel and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
ARTICLE 2
TERM
2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”).
15 (b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations, or responsibilities of the Parties arising prior to termination. The confidentiality obligations of the Parties under ARTICLE 18 and all indemnity and audit rights shall remain in full force and effect for one (1) year following the termination of this Agreement.
2.2 Delivery Term.
(a) The Delivery Term shall commence on the date that Seller commences delivering all available Product from the Facility to Buyer (“Commencement Date”), which the Parties agree will be January 1, 2024, but the Parties acknowledge that the Facility’s actual generation is dependent on water flow, which may cause deliveries to occur after January 1, 2024. (b) S hould the Commencement Date fail to occur on January 1, 2024, due to Seller’s breach of this Agreement , Seller shall pay liquidated damages to Buyer in an amount equal to $5,000 per day (“Daily Delay Damages”) from January 1, 2024, until the earlier of (a) the actual date the Commencement Date is achieved or (b) the date, if any, on which the Agreement is terminated by Buyer. Such Daily Delay Damages shall constitute liquated damages as set forth in ARTICLE 12. Notwithstanding the foregoing, Seller shall not be required to provide any proof or documentation that the C ommencement Date has occurred on January 1, 2024, unless requested by Buyer, it being assumed that the obligations and definitions set forth in this Agreement are sufficient to establish Seller’s satisfaction of a Commence ment Date under Section 2.2(a) unless Buyer otherwise demonstrates that such Commencement Date has not occurred.
ARTICLE 3
PURCHASE AND SALE
3.1 Purchase and Sale of Product . Subject to the terms and conditions of this Agreement, during the Delivery Term, Seller shall supply and deliver to Buyer all the Product produced by or associated with the Facility on an as-available basis (net of applicable losses), and Buyer will purchase and receive all the Product produced by or associated with the Facility at the Contract Price. At its sole discretion, Buyer may during the Delivery Term re-sell or use for another purpose all or a portion of the Product, provided that no such re-sale or use shall relieve Buyer of any obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product, or any component thereof, purchased hereunder from the Facility after the Delivery Point for resale in to the market or to any third party and retain and receive any and all related revenues. Subject to Buyer’s obligation to pay for Deemed Delivered Energy, Buyer has no obligation to purchase from Seller any Product for which the associated Delivered Energy is not or cannot be delivered to the Delivery Point.
3.2 S
ale of Green Attributes . During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all Green Attributes attributable to the Delivered Energy generated by the Facility.
3.3 Compensation. Subject to the bifurcated invoicing contemplated by Section 8.1 , during the Delivery Term, Buyer shall pay Seller the Contract Price for each MWh of Delivered Energy and Deemed Delivered Energy.
16 3.4 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period there may be Imbalance Energy . To the extent there is any Imbalance Energy, any payments or charges related to such Imbalance Energy, shall be for the account of Buyer, provided that Seller shall reimburse Buyer for any Imbalance Energy charges due to Seller’s failure to perform its obligations under the CAISO Tariff or this Agreement. Notwithstanding the foregoing, Seller shall have no obligations under the CAISO Tariff or under this Agreement related to being the Scheduling Coordinator or related to Buyer’s role as Scheduling Coordinator or re -seller of the Product hereunder.
3.5 O wnership of Renewable Energy Incentives . Seller shall have all right, title, and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives or values representing the same are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to the same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.
3.6 R
eserved .
3.7 Capacity Attributes.
(a) Buyer and Seller agree that the Facility has Full Capacity Deliverability Status as of the Effective Date, and Seller shall take commercially reasonable efforts to maintain this Full Capacity Deliverability Status throughout the Delivery Term. (b) Throughout the Delivery Term, Seller grants, pledges, assigns , and otherwise commits to Buyer all of the Capacity Attributes from the Facility associated with the Contract Capacity, if any. Seller makes no warranty or representation to the ongoing quantity or availability of Capacity Attributes, as set forth by the CAISO in its annual Net Qualifying Capacity listing or otherwise.
(c) For the duration of the Delivery Term, Seller shall take all reasonable actions, including complying with all applicable registration and reporting requirements, and execute all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement, if any.
3.8 CEC Certification and Verification. Subject to Section 3.11 , Seller shall take all
necessary steps to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including, but not limited to, making or supporting timely filings with the CEC and complying with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor), subject to the other provisions hereof.
3.9 R
eserved .
3.10 RPS Standard Terms and Conditions.
17 (a) Seller warrants that all necessary steps to allow the Renewable Energy Credits that are transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.
(b) Seller and, if applicable, its successors represent and war rant that throughout the Delivery Term of this Agreement: (i) the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource as such term is defined in Public Utilities Code s ection 399.12 or s ection 399.16; and (ii) the Facility’s electrical energy output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard (which shall be deemed as “RPS Compliance ”). To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default, nor shall Seller be subject to the provisions of Section 3.10(c) if Seller has used commercially reasonable efforts to comply with such change in law. The term “commercially reasonable efforts” as used in this Section 3.10 means efforts consistent with and subject to Section 3.11.
(c) During any period of time in which Seller is not making commercially reasonable efforts to bring the Facility into RPS Compliance in accordance with this Section 3.10 and Section
3.11 , Buyer shall pay Seller for energy delivered at an amount equal to seventy-five percent (75%) of the P Node Price at the Deliver y Point (the “ Replacement Price”) in lieu of the applicable Contract Price. The “PNode Price” shall be the locational marginal price of the PNode at the Delivery Point, which, for the avoidance of doubt, shall not include any value for Green Attributes or Capacity Attributes. In no event shall the Replacement Price be more than the original Contract Price. The Replacement Price shall remain in place until such time as the Facility is brought back into RPS Compliance, or Buyer elects to terminate pursuant to the following paragraph. (d) Subject to Section 3.11, Buyer may elect by Notice to Seller, at its sole discretion, to terminate this Agreement upon the earliest to occur of the following: (i) six (6) months of paying the Replacement Price; (ii) Seller’s delivery of an Excess Expenditure Notice as described in Section 3.11(b); or (iii) Seller’s expenditure of funds in an amount equal to or exceeding the Compliance Expenditure Cap, and Buyer determines, in its reasonable discretion, that notwithstanding Sel ler’s commercially reasonable efforts, Seller will be unable to bring the Facility into RPS compliance, and neither Party is willing to pay costs in excess of the Compliance Expenditure Cap.
3.11 Compliance Expenditure Cap.
(a) If a change in Laws occurring after the Effective Date has increased Seller’s known or reasonably expected costs to comply with Seller’s obligations under this Agreement with respect to obtaining, maintaining, conveying, or effectuating Buyer’s use of (as applicable) any Product, then the Parties agree that the maximum aggregate amount of out-of-pocket costs and expenses (“Compliance Costs”) that Seller shall be required to bear during the Delivery Term to comply with all of such obligations shall be capped at five thousand dollars ($5 ,000.00) per MW of Contract Capacity (“Compliance Expenditure Cap ”). Seller’s internal administrative costs associated with obtaining, maintaining, conveying , or effectuating Buyer’s use of (as applicable) any Product are excluded from the Compliance Expenditure Cap. Any actions required for Seller to comply with its obligations set forth in the first sentence above, the Compliance Costs of which 18 will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.”
(b) If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated Compliance Costs (an “Excess Expenditure Notice”) . Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall not be subject to the Replacement Price. Buyer shall, within such time, either (1) request a meeting with Seller to discuss an allocation of Compliance Costs above the Compliance Expenditure Cap; (2) agree to reimburse Seller for all or some portion of the Compliance Costs that exceed the Compliance Expenditure Cap, as applicable (such Buyer-agreed upon costs, the “Buyer Accepted Compliance Costs”); (3) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller ; or (4) choose to terminate the Agreement without costs or damages, other than to pay for outstanding invoices and for Product that it has received as of such date. If Buyer does not respond to a n Excess Expenditure Notice given by Seller under this Section 3.11 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Excess Expenditure Notice, and Seller shall have no further obligation to take, and no liability or penalty for any failure to take, the Compliance Actions that are the subject of th e Excess Expenditure Notice for the remainder of the Term and shall not be subject to the Replacement Price. (c) If Buyer agrees to reimburse Seller for the Buyer Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Buyer Accepted Compliance Costs and any compliance costs for which Seller agrees to pay for (the “ Seller Accepted Compliance Costs”), as agreed upon by the Parties , and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions, not to exceed the Buyer Accepted Compliance Costs, within thirty (30) days from the time that Buyer receives an invoice and documentation of such costs from Seller.
3.12 A vailability Guarantee. Buyer may terminate this Agreement if the Facility is not available to generate when water is available to it, for at least fifty percent (50%) of the Available Hours in any twenty- four (24) month period, determined on a rolling basis (“Availability Guarantee”). Seller shall provide good faith estimates of generation to Buyer at monthly intervals as agreed to by the Parties. Buyer agrees and acknowledges that these shall be estimates only, that Seller does not control water availability, and that water availability is subject to forces beyond Seller’s control.
3.13 C
hange in Market Structure. If a regionalization or major change in the market structure of the interconnected grid in the Western United States occurs during the Delivery Term, the Parties agree to negotiate such modifications to this Agreement as ne cessary to enable the Parties to continue to perform their respective obligations under this Agreement, while preserving, to the maximum extent possible, the benefits, burdens, and obligations set forth in the Agreement as of the Effective Date.
19 ARTICLE 4
OBLIGATIONS AND DELIVERIES
4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the Commencement Date and through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Delivered Ener gy to the Delivery Point, including without limitation, Station Use, Electrical Losses, and any operation and maintenance charges imposed on Seller by the Transmission Provider directly relating to the Facility’s operations. The Delivered Energy will be scheduled to the CAISO by Buyer (or Buyer’s designated Scheduling Coordinator) in accordance with Exhibit E.
(b) Green Attributes. All Green Attributes associated with the Delivered Energy during the Delivery Term are exclusively dedicated to and will be conveyed to Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes associated with the Delivered Energy, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility. (c) Any Capacity Attributes associated with the Delivered Energy and the Facility during the Delivery Term are exclusively dedicated to Buyer. Buyer or Buyer’s agent shall be responsible to submit monthly Supply and Resource Adequacy Plans or such other filings as may be required to evidence the conveyance of any Capacity Attributes to Buyer during the Delivery Term.
4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Delivered Energy shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims, and encumbrances of any kind. (b) G
reen Attributes . Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.
4.3 F
orecasting . Seller shall provide the forecasts described below at its sole expen se and in a format reasonably acceptable to Buyer (or Buyer’s designee). Seller shall use reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practices. Seller shall provide to Buyer non- binding annual, monthly, day- ahead, and real -time forecasts of Delivered Energy within a timeframe that allows Buyer or Buyer’s agent t he ability to meet CAISO market and scheduling deadlines. Seller’s plant operator visits the Facility multiple times per week. Seller or Seller’s agent shall report any material changes in output, if any, to Buyer and/or Buyer’s Scheduling Coordinator upon the daily visit of Seller’s plant operator from the previous day’s output, if any. 20 Seller shall also report any emergency or forced outages within a reasonable time following Seller’s receipt of notification of such outages.
4.4 Curtailment.
(a) General. Seller agrees to reduce the amount of Delivered Energy produced by the Facility by the amount and for the period set forth in any Curtailment Order or Buyer Curtailment Order.
(b) B uyer Curtailment. Buyer shall have the right to order Seller to curtail deliveries of Delivered Energy through Buyer Curtailment Orders, provided that Buyer shall pay Seller for all Deemed Delivered Energy associated with a Buyer Curtailment Period at the Contract Price.
Notwithstanding the foregoing, Buyer may not issue a Buyer Curtailment Order more than (i) two times per day; (ii) five times per billing month; or (iii) twenty times per Contract Year. (c) F
ailure to Comply . If Seller fails to comply with a Buyer Curtailment Order within a commercially reasonable time, Seller shall receive no compensation for each MWh of Delivered Energy that is delivered by the Facility to the Delivery Point in contradiction to the Buyer Curtailment Order and shall be required to pay Buyer the negative-energy cost associated with the Delivered Energy, if any. For purposes of this Section 4.4(c), a “commercially reasonable time” shall be within at least twelve (12) hours of receiving a Buyer Curtailment Order from Buyer.
4.5 Seller’s Equipment Required for Curtailment Instruction Communications .
Seller shall acquire, install, and maintain such facilities, communications links , and other equipment and implement such protocols and practices as are necessary to respond to and follow instructions, including email, text messages, or other electronic signal s conveying real-time and intra-day instructions, to allow Seller to operate the Facility as directed by Buyer in accordance with this Agreement or a Governmental Authority, including to implement a Buyer Curtailment Order or Curtailment Order in accordance with the then-current accepted method used to transmit such instructions, as it may change from time to time. If at any time during the Delivery Term Seller’s facilities, communications links , or other equipment, protocols or practices are not in compliance with then-current accepted methods, Seller shall take the steps necessary to become compliant as soon as reasonably possible. Buyer and Seller agree that as of the Effective Date, telephone communication, text messaging, and email communication between (a) Buyer and Buyer’s Scheduling Coordinator and (b) Seller and Seller’s Emer gency Contact or Back -up Emergency Contact (as listed in Exhibit G), with such Emergency Contact or Back-Up Emergency Contact having remote shut-down capability, shall be sufficient for compliance with this Section.
4.6 R eduction in Delivery Obligation . For the avoidance of doubt and in no way limiting Section 3.1:
(a) Facility Maintenance. Seller shall provide notice to Buyer prior to each Contract Year of Seller’s anticipated timeframes for scheduled maintenance for the Facility . Buyer may provide comments no later than ten (10) Business Days after receiving any such schedule, and Seller will in good faith take into account any such comments. Seller also agrees to use good faith efforts to plan such scheduled maintenance during times when the Facility has either low or no 21 water to generate Energy. Seller shall be permitted to reduce deliveries of Product during any such period of scheduled maintenance on the Facility (each of the foregoing, a “Planned Outage”). (b) Forced Facility Outage . Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) S ystem Emergencies and other Interconnection Events . Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, Buyer Curtailment Period, or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement, or applicable tariff.
(d) F
orce Majeure Event . Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(e) B uyer Default. Seller shall be permitted to reduce deliveries of Product during any period in which there is Buyer Default.
(f) H ealth and Safety . Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.
4.7 Reserved.
4.8 WREGIS. Seller shall , subject to Section 3.10 , take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Delivered Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and trans fer of such WREGIS Certificates to Buyer , and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section
4.8(f) below if Seller fulfills its obligations under Sections 4.8(a) through 4.8(f) below:
(a) Seller has already registered the Facility with WREGIS and established an account with WREGIS (“Seller’s WREGIS Account ”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”) and shall do so using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules), upon Buyer’s request. Seller shall be responsible for all expenses associated with register ing the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause the WREGIS Certificates to be transferred (using Forward Certificate Transfers if requested by Buyer) on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be 22 created for whole MWh amounts of Delivered Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate.
(c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Delivered Energy for such calendar month as evidenced by the Facility’s metered data.
(d) “WREGIS Certificate Deficit ” means any deficit or s hortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Delivered Energy for the same calendar month (“ Deficient Month ”) caused by an error or omission of Seller. If any WREGIS Certificate Deficit occurs , then the amount of Energy in the Deficient Month shall be reduced by the amount of Energy associated with the WREGIS Certificate Deficit for purposes of calculating Buyer’s payment to Seller under ARTICLE 8.
(e) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Delivered Energy in the same calendar month. (f) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.
ARTICLE 5
TAXES
5.1 Allocation of Taxes and Charges . Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer that are imposed on Product prior to its delivery to Buyer at the time and place contemplated under this Agreement. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the time and place contemplated under this Agreement (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts , or employees), if any.
If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.
5.2 C
ooperation . Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, however, that neither Party shall be obligated to incur any 23 financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Product delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Product.
ARTICLE 6
MAINTENANCE OF THE FACILITY
6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.
6.2 M aintenance of Health and Safety . Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair , and replacement of the F acility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Notice to Buyer’s emergency contact identified on Exhibit G of such condition. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility or suspending the supply of Delivered Energy to Buyer.
6.3 S
hared Facilities . The Parties acknowledge and agree that certain of the Shared Facilities, Interconnection Facilities, and Seller’s rights and obligations under the Interconnection Agreement may be subject to certain shared facilities or co-tenancy agreements to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder and (ii) provide for separate metering of the Facility.
ARTICLE 7
METERING
7.1 Metering. Seller shall measure the amount of Delivered Energy using the Facility Meter. All meters will be operated pursuant to applicable CAISO -approved calculation methodologies and maintained at Seller’s cost. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer and consents to Buyer obtaining from CAISO the CAISO meter data directly relating to the Facility and all inspection, testing, and calibration data and reports. Seller shall cooperate to allow Buyer to retrieve the meter reads from the CAISO Operational Meter Analysis and Reporting, Market Results Interface - Settlements (MRI-S) web or directly from the CAISO meter(s) at the Facility, if available . Upon Buyer’s request, Seller can also provide remote access into Seller’s OIU (“Operator Interface Unit”) that can provide Buyer access to live data from Seller’s system.
7.2 Met
er Verification . Annually, if Seller has reason to believe there may be a meter malfunction or upon Buyer’s reasonable request, Seller shall test the meter. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified 24 seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate, it shall be promptly repaired or replaced.
ARTICLE 8
INVOICING AND PAYMENT; CREDIT
8.1 Invoicing.
(a) Seller shall make good faith efforts to deliver an invoice to Buyer for Product within ten (10) Business Days after the end of the prior monthly billing period or as soon as reasonably practicable after receiving settlement data from Buyer’s Scheduling Coordinator . Each invoice shall reflect (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month, including the amount of Delivered Energy produced by the Facility as read by the Facility Meter and the calculation of the Deemed Delivered Energy (if any); and (b) any WREGIS Certificates transferred during the preceding month (“Transferred Certificates”). (b) The Parties acknowledge that invoicing and payments for the Delivered Energy may not occur in the same month as invoicing and payments for the WREGIS Certificates associated with such Delivered Energy, as the delivery of the WREGIS Certificates are subject to the timelines for reporting and availability in WREGIS. Therefore, invoices shall designate the following components of the Contract Price applicable to the Produc t: (i) for Delivered Energy, the invoice shall designate the applicable Contract Price less the Green Attribute Component Price; (ii) for Deemed Delivered Energy, the invoice shall designate the applicable Contract Price ; and (iii) for Green Attributes, the invoice shall designate the Green Attribute Component Price for the Transferred Certificates reflected in the invoice.
(c) Such invoices shall be in a format reasonably specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. Seller shall provide Buyer with reasonable access (including, in rea l time, to the maximum extent reasonably possible) to any records, forecast data, and other information, including invoices or settlement data that Seller has from the CAISO that is not already reasonably available to Buyer or Buyer’s Scheduling Coordinator, all as may be necessary from time to time for Buyer to verify the accuracy of any invoice.
8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each monthly invoice. Buyer shall pay undisputed invoice amounts within twenty -one (21) days after receipt of the invoice or the end of the prior monthly billing period, whichever is later. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on the 3-Month LIBOR rate published on the date of the invoice in The Wall Street Journal or, if The Wall Street Journal is not published on that day, the next succeeding date of publication, plus three 25 percent (3%) per annum (the “Interest Rate”). If the due date occurs on a day that is not a Business Day, the late payment charge shall begin to accrue on the next succeeding Business Day.
8.3 B ooks and Records . To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon ten (10) Business Days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement.
8.4 B
illing Disputes . A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoi ce for any arithmetic or computational error within twelve (12) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the da te paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving the overpayment. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section
8.4 within twelve (12) months after the invoice
is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party , and such third party corrects its information after the twelve - month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.
8.5 Netting of Payments . The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.
8.6 P
rogress Reports . Following the Commencement Date, Seller shall provide monthly reports to Buyer of information that is associated with the Facility as reasonably requested by Buyer that may include generation performance, a performance summary with month/year to date of MWh produced, capacity factor, comparison of actual vs. expected availability, operational summary including weather, reasons for downtime, scheduled maintenance and repairs, curtailments events, safety, and a summary of any environmental issues or concerns.
8.7 S
eller’s Performance Security . To secure its obligatio ns under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Commencement Date in the amount of forty-seven dollars for each kilowatt of Contract Capacity, or five hundred eighty-seven thousand, five hundred dollars ($587,500).
26 (a) Seller shall maintain the Performance Security in full force and effect, subject to any draws made by Buyer in accordance with this Agreement, throughout the Delivery Term and thereafter until such time as Seller has satisfied all monetary obligations that surviv e any termination of this Agreement, in any event not to exceed one year following the end of the Delivery Term. Following Seller’s satisfaction of all monetary obligations , Buyer shall promptly return to Seller the unused portion of the Performance Security. (b) Performance Security in the form of a Letter of Credit must comply with the following provisions:
(i) Each Letter of Credit must be maintained for the benefit of Buyer. (ii) Seller shall:
(i) Renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit;
(ii) Provide alternative Performance Security acceptable to Buyer at least twenty (20) Business Days before the
expiration of the outstanding Letter of Credit if the bank that issued an outstanding Letter of Credit has indicated its intent not to renew or extend such Letter of Credit; and
(iii) Provide alternative Performance Security acceptable to Buyer within three (3) Business Days if the bank that issued the outstanding Letter of Credit fails to honor Buyer’s properly documented request to draw on the outstanding
Letter of Credit.
(c) Upon the occurrence of a Letter of Credit Default, Seller shall provide to Buyer a substitute Letter of Credit acceptable to Buyer on or before the first Business Day afte r the occurrence thereof.
(d) Upon the occurrence of Letter of Credit Derating, Seller shall provide to Buyer a substitute Letter of Credit acceptable to Buyer on or before the third (3th) Business Day after the occurrence of the Letter of Credit Derating.
(e) If an Early Termination Date has been designated or has occurred following an Event of Default by Seller and Seller has unsatisfied payment obligations, Buyer may draw on any undrawn portion of any outstanding Letter of Credit by submitting to the issuing bank one or more certificates specifying that an Event of Default or Early Termination Date has occurred or been designated and is continuing.
(f) Buyer will have the right to draw on the Letter of Credit for any of the following reasons:
27 (i) The Letter of Credit will expire in fewer than ten (10) local Business Days, and Seller has not provided Buyer with alternative Performance Security acceptable to Buyer.
(ii) The Seller or the issuer of the Letter of Credit has provided written Notice to Buyer of either Seller’s or th e issuer’s intent not to renew or extend the Letter of Credit following the present expiration date thereof (“Notice of Nonrenewal”), and Seller has failed to provide Buyer with a replacement Letter of Credit satisfactory to Buyer , in its sole discretion, within thirty (30) days following the date of the Notice of Nonrenewal. (iii) Buyer has not been paid any or all of Seller’s payment obligations due and payable under the Agreement.
(g) Notwithstanding Buyer’s receipt of cash proceeds of a drawing under the Letter of Credit, Seller shall remain liable for any:
(i) Failure to provide or maintain sufficient Performance Security (including failure to replenish a Letter of Credit to the Performance Security Amount in the event that Buyer draws against the Letter of Credit for any reason other than to satisfy a final payment); or
(ii) Any amounts owing to Buyer and remaining unpaid after the application of the amounts so drawn by Buyer.
(h) In all cases, the costs and expenses of establishing, renewing, replenishing, substituting, canceling, and increasing the amount of a Letter of Credit will be borne solely by Seller.
ARTICLE 9
NOTICES
9.1 Addresses for the Delivery of Notices. Except as provided in Exhibit F, any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth in Exhibit G or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.
9.2 A cceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given, or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail or other electronic means) and if concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic Notice by hand delivery or express courier, at the time indicated by the electronic time stamp upon delivery; or (d) if delivered in person, upon receipt by the receiving Party. 28 Notwithstanding the foregoing, Notices of Default given pursuant to ARTICLE 11 may not be given by electronic communication; Notices of outages or other scheduling or dispatch information or requests may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission.
ARTICLE 10
FORCE MAJEURE
10.1 Definition.
(a) “Force Majeure Event ” means an y situation or event that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such situation or event, despite the Party’s exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control of (whether direct or indirect) and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance. (b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by and are beyond the reasonable control of (whether direct or indirect) and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, drought, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; landslide; mudslide; unexpected equipment breakdown not caused by lack of maintenance or user error; actions or inactions of third parties over which a Party has no control, including without limitation governmental or quasi -governmental entities unrelated to a Party or interconnecting utilities; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. (c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic, including Buyer’s ability to buy Energy at a lower price or Seller’s ability to sell Energy at a higher price than the Contract Price; (ii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above that disables physical or electronic facilities necessary to transfer funds to the payee Party; or (iii) a Curtailment Period, except to the extent such Curtailment Period is caused by a Force Majeure Event.
10.2 N
o Liability If a Force Majeure Event Occurs . Neither Seller nor Buyer shall be liable to the other Party in the event it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. Notwithstanding the foregoing, 29 the occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due hereunder.
10.3 Notice. In the event of any delay or nonperformance resulting from a Force Majeure Event, the Party suffering the Force Majeure Event shall (a) as soon as practicable, notify the other Party in writing of the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance; and (b) notify the other Party in writing of the cessation or termination of such Force Majeure Event, all as known or estimated in good faith by the affected Party; provided, however, that a Party’s failure to give timely Notice shall not affect such Party’s ability to assert that a Force Majeure Event has occurred unless the delay in giving Notice materially prejudices the other Party.
10.4 T
ermination Following Force Majeure Event . If a Force Majeure Event has occurred after the Commencement Date that has caused either Party to be wholly or partially unable to perform its obligations hereunder and the impacted Party has claimed and received relief from performance of its obligations for a consecutive eighteen (18) month period, then the non- claiming Party may terminate this Agreement upon written Notice to the other Party with respect to the Facility experiencing the Force Majeure Event. Upon any such termination, neither Party shall have any liability to the other Party, save and except for those obligations specified in Section
2.1(b), and Buyer shall promptly return to Seller any Performance Security then held by Buyer, less any amounts drawn in accordance with this Agreement.
ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION
11.1 Events of Default. An “Event of Default” shall mean:
(a) The occurrence of any of the following with respect to a Party who is subject to the Event of Default (the “Defaulting Party”):
(i) The failure of the Defaulting Party to make, when due, any payment required pursuant to this Agreement, and such failure is not remedied within five (5) Business Days after Notice thereof;
(ii) Any representation or warranty made by the Defaulting Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within fifteen (15) days after Notice thereof;
(iii) The failure by the Defaulting Party to perform any material covenant or obligation set forth in this Agreement , and such failure is not remedied within twenty (20) days after Notice thereof;
(iv) The Defaulting Party becomes Bankrupt;
(v) The Defaulting Party assigns this Agreement or any of its rights hereunder other than in compliance with ARTICLE 14, as applicable; or 30 (vi) The Defaulting Party consolidates with, amalgamates with, or merges with or transfers all or substantially all of its assets to another entity , or reorganizes, reincorporates, or reconstitutes into another entity, and at the time of such consolidation, amalgamation, merger, transfer, reorganization, reincorporation, or reconstitution:
(i) The resulting successor, surviving, or transferee entity fails to assume all the obligations of the Defaulting Party under this Agreement, including Performance Security obligations, to which the Defaulting Party or its predecessor was a party. (ii) The creditworthiness of the resulting successor, surviving, or transferee entity, after taking into account any applicable Performance Security , is materially weaker immediately after the occurrence of such event than before the event. (b) The occurrence of any of the following with respect to Seller as the Defaulting Party:
(i) Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility at any time during the Delivery Term;
(ii) Seller fails to satisfy the Performance Security requirements pursuant to Section 8.7 after Notice and expiration of the cure periods set forth therein; (iii) Seller fails to satisfy the Availability Guarantee pursuant to Section 3.12;
11.2 Remedies; Declaration of Early Termination Dat e. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“ Non- Defaulting Party”) shall have the following rights:
(a) To send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“ Early Termination Date ”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) To accelerate all amounts owing between the Parties, as applicable; (c) To withhold any payments due to the Defaulting Party under this Agreement; (d) To suspend performance; or
(e) To exercise any other right or remedy available at law or in equity.
11.3 Rights And Remedies Are Cumulative . Except where an express and exclusive remedy or measure of liquidated damages is provided, the rights and remedies of a Party pursuant 31 to this Article shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.
ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES
12.1 No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY,
INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST
REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF,
OR IN CONNECTION WITH THIS AGREEMENT, WHETHER PROVIDED BY STATUTE,
TORT, OR CONTRACT, EXCEPT TO THE EXTENT AS PART OF AN EXPRESS REMEDY
OR MEASURE OF DAMAGES HEREIN, OR PART OF AN
ARTICLE 16 INDEMNITY
CLAIM, OR INCLUDED IN A LIQUIDATED DAMAGES CALCULATION, OR ARISING FROM FRAUD OR INTENTIONAL MISREPRESENTATION.
12.2 Waiver and Exclusion of Other Damages . EXCEPT AS EXPRESSLY SET
FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND
MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF
CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREAC H OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY. THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO
REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT
OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE
REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE
INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES
AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR
CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,
WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR 32 PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE
EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE
BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY
WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY
13.1 Seller’s Representations and Warranties . As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct business in the state of California and each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller. (b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery, and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller ; the documents of formation of Seller ; any outstanding trust indenture, deed of trust, mortgage, loan agreement, or other evidence of indebtedness; or any other agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid, and binding obligation of Seller, enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) The Facility is located in the State of California. (f) Seller shall maintain Site Control and resource control for the entire Facility (including all real property, water rights, easements, access, and related rights, and including the Facility gen-tie, if applicable) pursuant to site lease agreements, easements, or fee interests, all of which shall be valid for a period of not less than the balance of the Delivery Term (redacted copies of which shall be provided to Buyer upon Buyer’s request). 33 (g) Seller shall cause any debt associated with the Facility (not including any back- leveraged debt for which Seller has no liability) to be equal to or less than seventy percent (70%) of the fair market value of the Facility.
13.2 Buyer’s Representations and Warranties . As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a validly existing municipal corporation, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations, and orders of the California Energy Commission, and is qualified to conduct business as set forth herein. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with all applicable Law. (b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery, and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid, and binding obligation of Buyer, enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit; (2) jurisdiction of court (provided that such court is located within a venue permitted in law and under the Agreement) ; (3) relief by way of injunction, order for specific performance or recovery of property; (4) attachment of assets; or (5) execution or enforcement of any judgment; provided, however that nothing in this Agreement shall waive the obligations or rights set forth in the California Tort Claims Act (Government Code section 810 et seq.)
(f) Buyer is a “local public entity” as defined in section 900.4 of the Government Code of the State of California.
13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
34 (a) It shall continue to be duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and to be qualified to conduct business in California and each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall maintain all regulatory authorizations, approvals, and permits necessary for it to legally perform its obligations under this Agreement; (c) If any future permits must be obtained for the Facility, such permits will not conflict with or compromise the terms of this Agreement; and
(d) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.
ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments . Except as set forth below, neither Party may voluntarily assign this Agreement or its rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. Any assignment made without required written consent or in violation of the conditions to assignment set out below shall be null and void. Except to the extent expressly set forth in Section
14.2, neither
Party will have the obligation to provide any consent or enter into any agreement that materially and adversely affects any of such Party’s rights, benefits, risks , or obligations under this Agreement. Any assignment under this Section must ensure that any Performance Security provided under this Agreement remains in full force or effect or is replaced effective as of the date of such assignment.
14.2 Financing Assignment. Subject to the provisions of this Section 14.1 , Seller has
the right to assign this Agreement as collateral for any financing or refinancing of the Facility (including any tax equity financing) and, in connection therewith, may execute, file, and/or record such documents as are required by Lender or Lenders without the prior written consent of Buyer.
Notwithstanding the foregoing, Seller shall notify Buyer of such collateral assignment and provide any documentation thereof as reasonably requested by Buyer. Where necessary and appropriate, Buyer shall in good faith work with Seller and any L ender to agree upon a reasonable collateral assignment consent agreement providing customary requirements with respect to the collateral assignment of this Agreement and financing of the Facility, including, among others, relating to a Lender’s step-in-and-cure rights and rights of foreclosure following a default by Seller. For the avoidance of doubt, Buyer shall have no obligation to agree to any amendment or other modification of this Agreement that is proposed by a Lender in such collateral assignment consent agreement.
ARTICLE 15
DISPUTE RESOLUTION
15.1 Venue/Choice of Law . The Parties agree that any suit, action , or other legal proceeding by or against any Party (or its affiliates or designees) with respect to or arising out of this Agreement shall be brought in the federal courts of the United States or the courts of the State 35 of California sitting in Orange County, California. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced, and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement.
15.2 Dispute Resolution . In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate, and attempt, in good faith, to resolve the dispute quickly, informally, and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty (30) days of initiating such discussions or within forty (40) days after Notice of the dispute, the P arties shall submit the dispute to mediation prior to seeking any and all remedi es available to it at Law in or equity. Any such mediation shall be conducted in Orange County, California. The Parties will cooperate in selecting a qualified neutral mediator selected from a panel of neutrals and in scheduling the time and place of the mediation as soon as reasonably possible, but in no event later than forty -five (45) days after the request for mediation is made. The Parties agree to participate in the mediation in good faith and to share the costs of the mediation, including the mediator’s fee, equally, but such shared costs shall not i nclude each Party’s own attorneys’ fees and costs, which shall be borne solely by such Party. If the mediation is unsuccessful, then either Party may seek any and all remedies available to it at Law or in equity, subject to the limitations set forth in this Agreement.
ARTICLE 16
INDEMNIFICATION
16.1 Indemnity. Seller agrees to defend, indemnify, and hold harmless Buyer , its directors, officers , officials (elected and appointed) , members, managers, agents, attorneys, employees, and representatives (“ Indemnitee[s]”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses, including reasonable attorneys’ and expert witness fees, for personal injury or death to Persons and damage to the property of any third party to the extent ari sing out of, resulting from, or caused by the negligent or willful misconduct or omissions of Seller, its Affiliates, its directors, officers, employees or agents (collectively, “Indemnifiable Losses ”), except to the extent caused by the gross negligence or willful misconduct of any such Indemnitee.
Nothing in this Section shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages to the extent resulting from its own negligence, intentional acts or omissions, or willful misconduct.
These indemnity provisions shall not be construed to relieve any insurer of its obligations to pay claims consistent with the provisions of a valid insurance policy.
16.2 Notice of Claim . Subject to the terms of this Agreement and upon obtaining knowledge of an Indemnifiable Loss for which it is entitled to indemnity under this Article, Buyer will promptly notify Seller in writing of any damage, claim, loss, liability or expense that Buyer has determined has given or could give rise to an Indemnifiable Loss under Section 16.1 (“Claim”). The Notice is referred to as a “Notice of Claim ”. A Notice of Claim will specify, in reasonable detail, the facts known to Buyer regarding the Indemnifiable Loss. 36 16.3 Failure to Provide Notice. A failure to give timely Notice or to include any specified information in any Notice as provided in this Section 16.3 will not affect the rights or obligations of any Party hereunder except and only to the extent that, as a result of such failure, Seller was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially damaged as a direct result of such failure and, provided further, Seller is not obligated to indemnify Buyer for the increased amount of any Indemnifiable Loss that would otherwise have been payable to the extent that the increase resulted from Buyer’s failure to deliver timely a Notice of Claim.
16.4 Defense of Claims. If, within ten (10) Business Days after giving a Notice of Claim regarding a Claim pursuant to Section 16.2, Buyer receives Notice from Seller that Seller has elected to assume the defense of such Claim, Seller will not be liable for any leg al expenses subsequently incurred by Buyer in connection with the defense thereof; provided, however, that if Seller fails to take reasonable steps necessary to defend diligently such Claim within ten (10) Business Days after receiving Notice from Buyer that Buyer believes Seller has failed to take such steps, or if Seller has not undertaken fully to indemnify Buyer in respect of all Indemnifiable Losses relating to the matter, Buyer may assume its own defense, and Seller will be liable for all reasonable costs or expenses, including attorneys’ fees, paid or incurred in connection therewith.
Without the prior written consent of Buyer, Seller will not enter into any settlement of any Claim that would lead to liability or create any financial or other obligation on the part of Buyer for which Buyer is not entitled to indemnification hereunder; provided, however, that Seller may accept any settlement without the consent of Buyer if such settlement provides a full release to Buyer and no requirement that Buyer acknowledge fault or culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of Buyer for which Buyer is not entitled to indemnification hereunder and Seller desires to accept and agrees to such offer, Seller will give Notice to Buyer to that effect. If Buyer fails to consent to such firm offer within ten (10) calendar days after its receipt of such Notice, Buyer may continue to contest or defend such Claim and, in such event, the maximum liability of Seller to such Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by Buyer up to the date of such Notice.
16.5 Subrogation of Rights. Upon making any indemnity payment, Seller will, to the extent of such indemnity payment, be subrogated to all rights of Buyer against any Third Party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided that until Buyer recovers full payment of its Indemnifiable Loss, any and all claims of Seller against any such Third Party on account of said indemnity payment are hereby made expressly subordinated and subjected in right of payment to Buyer’s rights against such Third Party. Without limiting the generality or effect of any other provision hereof, Buyer and Seller shall execute upon request all instruments reasonably necessary to evidence and perfect the above -described subrogation and subordination rights.
16.6 R
ights and Remedies are Cumulative . Except for express remedies already provided in this Agreement, the rights and remedies of a Party pursuant to this Article are cumulative and in addition to the rights of the Parties otherwise provided in this Agreement. 37 ARTICLE 17
INSURANCE
17.1 Without limiting Buyer ’s right to indemnification, it is agreed that Seller shall secure, prior to commencing any activities under this Agreement, and maintain, during the Contract Term of this Agreement, insurance coverage as follows:
(a) Workers’ Compensation Insurance as require d by California law and Employers’ Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury. (b) Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Inj ury Liability, Products/Completed Operations Liability, as well as Independent Contractor’s liability , where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form.
Such insurance shall be written on a primary basis, but may include a deductible or self -insured retention of not more than $10,000 per occurrence, provided that such deductible or self -insured retention is disclosed to Buyer, in writing, at the inception of this Agreement. (c) Commercial Automobile Liability Coverage including—as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
(d) Excess Liability Insurance in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis . Any deductible or self -insured retention must be disclosed to Buyer, in writing, at the inception of this Agreement. (e) Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Buyer ’s Risk Manager prior to the inception of the final Agreement.
(f) Buyer agrees that this insurance shall not be voluntarily cancelled by Buyer or limited in scope or coverage by Buyer until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
(g) Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall cont ain the following clauses or shall otherwise provide for the following conditions:
• “It is agreed that any insurance maintained by EIF Haypress, LLC pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim.”
• “The City of Anaheim, its officers, agents, employees, representatives and Anaheim-designated volunteers are added as additional insureds as respects the acts, omissions, operations, and activities of, or on behalf of, the named insured, 38 in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
(h) Prior to commencing any work under this Agreement, Seller shall deliver to Buyer insurance certificates confirming the existence of the insurance required under this Agreement and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Seller shall provide Buyer : (i) endorsements to the insurance policies which add to thes e policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to Buyer evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in said insuran ce policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best’s rating of A VII or higher; or (iii) otherwise acceptable to Buyer, with prior written permission from Buyer. In the event that a claim or other legal action is filed against Buyer, and if Buyer, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Buyer has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that Seller shall fully defend, hold harmless, and indemnify Buyer against any such claim or other legal action. (i) In addition to other remedies Buyer may have if Seller fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Buyer may, at its sole option:
• Order Seller to stop work under this Agreement and/or withhold any payment(s) that become due to Seller hereunder until Seller demonstrates compliance with the requirements hereof; or
• Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies Buyer may have and is not the exclusive remedy for Seller’s failure to maintain insurance or secure appropriate endorsements.
(j) Nothing herein contained shall be construed in any wa y as limiting the extent that Seller may be held responsible for payments of damages to persons or property resulting from Seller’s (or Seller’s agent or sub-agent, if any) performance of the work covered under this Agreement.
(k) In the event Seller hires other persons or firms to perform some of the work related to this Agreement, Seller shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, ter ms and conditions as, the insurance required of Seller under this Agreement; and in either instance, Seller shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Buyer. (l) Buyer’s Risk Manager is hereby authoriz ed to reduce the requirements set forth herein in the event such reduction is in Buyer’s best interest. 39 ARTICLE 18
CONFIDENTIAL INFORMATION
18.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written, which is delivered by Seller to Buyer or by Buyer to Seller:
(a) the proposals and negotiations related to this Agreement and (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing i t to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.
18.2 D
uty to Maintain Confidentiality . Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient (the “ Receiving Party”) if and to the extent such disclosure is required (a) to be made by any requirements of Law, (b) pursuant to an order of a court, or (c) in order to enforce this Agreement. If the Receiving Party becomes legally compelled (by interrogatories, requests for information or documents, subpoenas, summons, civil investigative demands, or similar processes or otherwise in connection with a ny litigation or to comply with any applicable L aw, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator request or rule) to disclose any Confidential Information of the disclosing Party (the “Disclosing Party”), Receiving Party shall provide Disclosing Party with prompt notice so that Disclosing Party, at its sole expense, may seek an appropriate protective order or other appropriate remedy. If the Disclosing Party takes no such action after receiving the foregoing notice from the Receiving Party, the Receiving Party is not required to defend against such request and shall be permitted to disclose such Confidential Information of the Disclosing Party, with no liabi lity for any damages that arise from such disclosure. Each Party hereto acknowledges and agrees that information and documentation provided in connection with this Agreement may be subject to the California Public Records Act (Government Code section 6250 et seq.).
18.3 I
rreparable Injury; Remedies . Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth in this Article . Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available in law, in equity, or otherwise, Disclosing Party will be entitled to obtain injunctive relief against the threatened breach of this Article or the continuation of any such breach, without the necessity of proving actual damages.
18.4 D
isclosure to Lenders, Etc. Notwithstanding anything to the contrary in this Article, Confidential Information may be disclosed by Seller to any actual or potential Lender or investor, any of its Affiliates, and Seller’s actual or potential agents, consultants, contractors, or 40 trustees, so long as the Person to whom Confidential Information is disclosed agrees to be bound by the confidentiality provisions of this Article to the same extent as if it were a Party.
ARTICLE 19
MISCELLANEOUS
19.1 Entire Agreement; Integration; Exhibits . This Agreement, inclusive of with its attached Exhibits, constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and Exhibit A, the provisions of Exhibit A shall prevail over this Agreement. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other Party as a result of the preparation, substitution, submission, or other event of negotiation, drafting, or execution hereof.
19.2 A
mendments . This Agreement may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.
19.3 N
o Waiver . Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.
19.4 N o Agency, Partnership, Joi nt Venture or Lease. Under this Agreement, Seller and Buyer intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co -venturers in, or lessor/lessee with respect to the Facility or any business related to the Facility, and each Party (including its agents and employees) shall act in an independent capacity and not as officers or employees or agents of the other Party.
This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement) or, to the extent set forth herein, any Lender.
19.5 S
everabilit y. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal , or unenforceable provision(s) with legally acceptable clauses that correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.
19.6 M
obile -Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms, or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of s ection 205, 206 or 306 of the Federal Power Act or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms, or conditions of service of this Agreement proposed by a Party shall be the 41 “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non- Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable law.
19.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument , and each of which shall be deemed an original.
19.8 B inding Effect . This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
19.9 F urther Assurances . Each of the Parties hereto agree to provide such information, execute, and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party that are not inconsistent with the provisions of this Agreement and that do not involve the assumption of obligations other than those provided for in this Agreement, to give full effect to this Agreement , and to carry out the intent of this Agreement.
[Signatures on following page]
A-1
EXHIBIT A
FACILITY DESCRIPTION
Seller: EIF Haypress, LLC, a Delaware limited liability company.
Buyer: City of Anaheim, a California municipal corporation.
Description of Facility : The Haypress Hydroelectric Project (“Project”) consists of two hydroelectric generation facilities (a 5.8 MW and a 6.7 MW) located in Sierra County, California.
Location: End of Wild Plum Road, Sierra City,
California 96125
GPS Coordinates:
Lower: 39.5657, -120.5970
Upper/Middle: 39.5656, -120.5817
County: Sierra
Type of Facility: Small hydro
Operating Characteristics of Facility: The Project consists of two small hydro units: the Lower Haypress Facility and the Upper/Middle
Haypress Facility. The Project consists of: three
diversion works, two on Haypress Creek and one
on Milton Creek; approximately three miles of
penstocks; and two powerhouses situated on
Haypress Creek. The Lower facility has a gross
head of approximately 488 feet, and the
Upper/Middle facility has a gross head of
approximately 609 feet. Each powerhouse
contains a single horizontal impulse (Pelton)
turbine with 5 jets. The turbines were
manufactured by “Mechanica De La Pena”
(Spain) and have a nameplate rating of 5 MW
each at rated conditions. Each powerhouse also
contains a single, vertical synchronous generator
manufactured by Canadian General Electric, a
Basler static exciter, metal-clad SF6 circuit
breakers, and a control system.
Contract Capacity: 12.5 MW
Total Facility Capacity: 12.5 MW
A-2
Delivery Point: Per the Interconnection Agreement at the PG&E Spaulding Substation (CAISO meter is at the
Facility, adjusted for losses to Delivery Point)
Participating Transmission Owner: PG&E
Historical Facility Energy (MWh) 16,100 MWh*Average Historical Facility Energy is an average of 1989-2022 Energy, for reference
only. Future Energy will depend on water
conditions.
Contract Price: The Contract Price of the Product shall be:
Contract Years Contract Price
1-15
$60.00 per MWh in the first
Contract Year; an annual
escalator of 2.5% beginning
in the second Contract Year
Product:
Delivered Energy
Green Attributes (Portfolio Content Category 1) associated with Delivered Energy Capacity Attributes, if any
Ancillary Services, if any
Scheduling Coordinator: Buyer or Buyer’s agent
Performance Security: $47/kW of Contract Capacity
Milestones:
Milestone Date for Completion
Evidence of Site Control Complete
CEC Certification Obtained Complete
Executed Interconnection Agreement Complete
Initial Synchronization Complete
Commercial Operation Date Complete
Intended Commencement Date of Contract* 01/01/2024
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*Facility generation dependent on seasonal water flow for the year
Legal Description of Site:
U.S. Forest Service Land (two 20-year Special Use Permits executed in 2019):
• For Lower Powerhouse, and two of three diversion structures: l 0.65 acres in the Sec. 26, T. 20 N., R. 12 E., MT. DIABLO MERIDlAN, Sec. 30, T. 20 N. R. L3 E., MT. DIABLO MERIDIAN, Sec. 36, T. 20 N., R. 12 E. MT. DIABLO MERIDIAN • Powerline Right of Way: 30.4 acre(s) in the Sec. 12,T. 19 N., R. 12 E., MT. DIABLO MERIDIAN, Sec. 26, T. 19 N., R. 12 E., MT. DIABLO MERIDIAN, Sec. 23, T. 19 N., R. 12 E., MT. DIABLO MERIDIAN, Sec. 34, T. 19 N., R. 12 E., MT. DIABLO MERIDIAN, Sec. l, T. 19 N., R. 12 E.,MT. DIABLO MERIDIAN, Sec. 36, T. 20 N., R. 12 E., MT. DIABLO MERIDIAN, Sec. 5, T. 18 N., R. 12 E., MT.DIABLO MERIDIAN, Sec. 26, T. 20 N., R. 12 E., MT. DIABLO MERIDIAN, Sec. 14, T. 19 N., R. 12 E., MT.DIABLO MERIDIAN
Southern Pacific Land Long-Term Ground Lease (50 year term beginning in 1989) • For Middle Powerhouse, one of three diversion structures and other project works: An area of 4.58 acres, more or less, as required for construction and maintenance of diversion, pipeline, power generation and power transmission structures, within theSEl/4 and Sl/2SW1/4 of Sec 25 Twp 20N Rge 12E, MDM, Sierra County, California and the Nl/2Nl/2 of Sec 35 Twp 20N Rge l2E, MDM, Sierra County, California
Generating Facility Legal Description:
See above
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EXHIBIT B
MAP OF THE FACILITY
B-2
C-1
3.8 MW
6.7 MW
5.8 MW
EXHIBIT C
METERING DIAGRAM
One-Line Diagram Depicting the Small Generating Facility, Interconnection Facilities, Metering Equipment, and Upgrades of the Haypress Project
D-1
EXHIBIT D
ANNUAL PRICE ESCALATION FACTOR (%)
Contract Year Annual Price Escalation
Factor (%)
1 0
2 2.5
3 2.5
4 2.5
5 2.5
6 2.5
7 2.5
8 2.5
9 2.5
10 2.5
11 2.5
12 2.5
13 2.5
14 2.5
15 2.5
E-1
EXHIBIT E
FORECASTING AND SCHEDULING REQUIREMENTS AND PROCEDURES
1. Introduction.
The Parties shall abide by the Forecasting and Scheduling Requirements and Procedures described in this Exhibit E and shall agree upon reasonable changes to these requirements and procedures from time-to-time, as necessary to:
(a) Comply with CAISO Tariff changes;
(b) Accommodate changes to their respective generation technology and organizational structure; and
(c) Address changes in the operating and scheduling procedures of both Anaheim and the CAISO, including but not limited to, forecast and outage submissions.
2. Seller’s Forecasting Requirements.
Seller must meet all of the following requirements for forecasting as specified below:
(a) Seller shall provide Anaheim with the non-binding forecasts set forth in Sections 3 and 4 of this EXHIBIT E via email.
(b) Seller shall meet all requirements and timelines for generation outage scheduling contained in the CAISO’s Scheduled and Forced Outage Procedure T-113, or its successor, as posted on the CAISO’s website.
(c) Seller shall exercise good faith efforts in preparation and updating of its forecast(s). In the event Seller has not exercised good faith in the preparation and updating of its forecast(s), Anaheim may, but is not obligated to, take reasonable actions to mitigate forecast error.
3. Daily Planned Operating Schedule.
By 1:00 PM Pacific Prevailing Time the Business Day before the WECC prescheduling day, in accordance with the WECC pre-scheduling calendar, Seller or Seller’s designee shall provide Buyer or Buyer’s agent with an electronic copy of daily planned operating schedule for deliveries of energy for each hour of the immediate pre-scheduling day and Seller to send to Buyer via email. A daily planned operating schedule provided a day prior to any non-Business Day(s) shall include forecasts for the number of pre-scheduling days based on the WECC pre-scheduling calendar.
4. Outage Schedules.
Commencing at least sixty (60) days before initial synchronization and throughout the Delivery Term, Seller shall submit to Anaheim, Seller’s schedule of proposed planned outages (“Outage Schedule”) for the subsequent twenty-four month period as outlined below.
(a) Seller shall provide the following information for each proposed planned outage:
E-2
i. From date and time;
ii. To date and time; and
iii. Available capacity online, in MW, during the planned outage. (b) Within twenty (20) Business Days after Anaheim’s receipt of an Outage Schedule, Anaheim shall notify Seller in writing of any reasonable request for changes to the Outage Schedule, and Seller shall, consistent with Prudent Electrical Practices, accommodate Anaheim’s requests regarding the timing of any planned outage.
(c) Seller shall cooperate with Anaheim to arrange and coordinate all Outage Schedules with the CAISO, in accordance with the CAISO Tariff. (d) If a condition occurs at the Facility that causes Seller to revise its planned outages, Seller shall promptly provide Notice to Anaheim of such change (including an estimate of the length of such planned outage) as required in the CAISO Tariff after the condition causing the change becomes known to Seller. (e) Seller shall promptly prepare and provide to Anaheim upon request all reports of actual or forecasted outages that Anaheim may reasonably require for the purpose of enabling Anaheim to comply with any Laws mandating the reporting by publicly owned utilities of expected or experienced outages by electric energy generating facilities under contract to supply electric energy.
5. Requested Outage.
Any outage (other than a forced outage) not identified in an Outage Schedule is considered a “Requested Outage” and must be submitted by the Seller, or Seller’s agent, to Buyer, as Scheduling Coordinator, to submit to the CAISO through the Outage Management System (OMS), or successor outage management system.
6. Forced Outages.
Seller will notify the CAISO of any forced outage in accordance with the CAISO Tariff, or as applicable, and will work with Buyer as Scheduling Coordinator to submit such notification to CAISO.
7. Anaheim’s Scheduling Responsibilities.
Anaheim shall be responsible for scheduling the Product in accordance with the scheduling protocol, Section 1.114 of the Agreement, and the forecasts provided by Seller pursuant to this EXHIBIT E. In the event that the CAISO scheduling practices and protocols change in such a way that causes a conflict with the provisions of this EXHIBIT E, the Parties shall use good-faith efforts to make necessary changes to this EXHIBIT E to conform it to such changes to the CAISO scheduling practices and protocols. The Parties acknowledge that changes to the CAISO scheduling practices and protocols are expected to occur during the Contract Term and hereby agree that any modifications to this procedure necessary to accommodate such changes will endeavor to reasonably match the intent reflected in this EXHIBIT E as of the Effective Date.
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EXHIBIT F
SCHEDULING COORDINATOR’S RESPONSIBILITIES
A. Buyer as Scheduling Coordinator for the Facility. Buyer shall be the Scheduling Coordinator or shall designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of the Product at the Delivery Point and to bid the Deli vered Energy into the Day- Ahead Market and the Real -Time Market, consistent with Prudent Operating Practice. Each Party shall perform all scheduling and transmission activities in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and (iii) Prudent Operating Practice. The Parties agree to communicate and cooperate as necessary in order to address any scheduling or settlement issues as they may arise and to work together in good faith to resolve them in a manner consistent with the terms of the Agreement. The Delivered Energy will be scheduled with the CAISO by Buyer (or Buyer’s designated Scheduling Coordinator) for Buyer’s account.
B. Buyer shall not charge Seller for any Scheduling Coordinator Services.
C. CAISO Costs and Revenues. As Scheduling Coordinator for the Facility, Buyer shall be responsible for all CAISO costs and all obligations under the CAISO Tariff related to the Scheduling Coordinator or its role as Buyer or re-seller of the Product hereunder, including without limitation, all I mbalance Energy charges, and other charges, and shall be entitled to all CAISO revenues, including without limitation, credits, Imbalance Energy payments, and revenues associated with CAISO dispatches, bid cost recovery, Inter -SC Trade credits, or other cr edits in respect of the Product scheduled or delivered from the Facility. Seller shall be responsible for all CAISO penalties resulting from any failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in this Agreement.
D. C
AISO Settlements . Buyer (as the Facility’s Scheduling Coordinator ) shall be responsible for all settlement functions with the CAISO related to the Facility.
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EXHIBIT G
NOTICES
EIF Haypress, LLC, a Delaware limited
liability company
(“Seller”)
City of Anaheim, a California municipal
corporation
(“Buyer or Anaheim”)
All Notices:
EIF Haypress, LLC
Street: 711 Turtle Point Drive
City: Ivins, UT 84738
Attn: Miriah Elliott
Phone: 801-891-4147
Email: [email protected]
All Notices:
City of Anaheim
Street: 201 S. Anaheim Blvd., Suite 802
City: Anaheim, California 92805
Attn: Principal Integrated Resources Planner
Phone: (714) 765-4112
Email: [email protected]
Reference Numbers:
Duns:
Federal Tax ID Number: 85-3897630
Reference Numbers:
Duns: 801019282
Federal Tax ID Number: 95-6000666
Invoices:
Attn: Dana Peck
Phone: 208-604-3338
E-mail: [email protected]
Invoices:
Attn: Scott Shimoda
Phone: (714) 765-5036 or (714) 765-5279
E-mail: [email protected];
[email protected]; [email protected]
Wire Transfer:
Bank Name: [___________________]
Account Number: [_______________]
ABA Number: [__________________]
Account Name: [_________________]
Reference: [_____________________]
Wire Transfer:
Bank Name: [___________________]
Account Number: [_______________]
ABA Number: [__________________]
Account Name: [_________________]
Reference: Anaheim Public Utilities
Scheduling:
Attn: TBD
Phone:
E-mail:
Scheduling:
Attn: Scheduling Desk
Phone: (714) 765-4472 or (714) 765-5177
E-mail: [email protected];
[email protected]; [email protected];
[email protected];
Forecasting:
Attn: TBD
Phone:
E-mail:
Forecasting:
Attn: Scheduling Desk
Phone: (714) 765-4472 or (714) 765-5177
E-mail: [email protected];
[email protected]; [email protected];
[email protected];
G-2
EIF Haypress, LLC, a Delaware limited
liability company
(“Seller”)
City of Anaheim, a California municipal
corporation
(“Buyer or Anaheim”)
Day-Ahead Operations:
Attn: TBD
Phone:
E-mail:
Day-Ahead Operations:
Attn: Scheduling Desk
Phone: (714) 765-4472 or (714) 765-5177
Facsimile: (714) 765-4692
E-mail: [email protected];
[email protected]; [email protected];
[email protected];
Real-Time Forecasting:
Attn: TBD
Phone:
E-mail:
Real-Time Forecasting:
Attn: Scheduling Desk
Phone: (714) 765-5109
Facsimile: (714) 765-4692
E-mail: [email protected];
[email protected]; [email protected];
[email protected];
Credit and Collections:
Attn: Dana Peck
Phone: 208-604-3338
E-mail: [email protected]
Manager of Credit and Collateral:
Attn: Mei Pan
Phone: (714) 765-4132
Facsimile: (714) 765-4020
E-mail: [email protected]
Contract Administration:
Attn: Miriah Elliott
Street: 498 West 140 South
City: Ivins, UT 84738
Phone: 801-891-4147
E-mail: [email protected]
Contract Administration:
Attn: Principal Integrated Resources Planner
Street: 201 S. Anaheim Blvd., Suite 802
City: Anaheim, California 92805
Phone: (714) 765-4112
Email: [email protected]
Emergency Contact:
Attn: Teddy P. Sorenson
Phone: 208-716-3077
E-mail: [email protected]
Back-Up Emergency Contact:
Attn: Daniel Sorenson
Phone: 208-589-5242
E-mail: [email protected]
Emergency Contact:
Attn: Linda Valero
Phone: (714) 765-4112
E-mail: [email protected]
Back-Up Emergency Contact:
Attn: Kristen Weger
Phone: (714) 765-4445
E-mail: [email protected]
G-3
EIF Haypress, LLC, a Delaware limited
liability company
(“Seller”)
City of Anaheim, a California municipal
corporation
(“Buyer or Anaheim”)
With additional Notices of an Event of
Default or Potential Event of Default to:
Miriah Elliott
498 West 140 South
Ivins, UT 84738
Phone: 801-891-4147
And
Teddy Sorenson
2845 Chase Street
Wheat Ridge, CO 80214
With additional Notices of an Event of
Default or Potential Event of Default to:
City of Anaheim
Attn: City Clerk
200 S. Anaheim Blvd., 2
nd Floor
Anaheim, CA 92805
Phone: (714) 765-5166
Facsimile: (714) 765-4105
And
City of Anaheim
Attn: City Attorney
200 S. Anaheim Blvd., 3
rd Floor
Anaheim, CA 92805
Phone: (714) 765-5169
Facsimile: (714) 765-5123
EXHIBIT H
FORM OF LETTER OF CREDIT
[ISSUER LETTERHEAD]
DATE:
[DATE]
WE HEREBY ISSUE OUR IRREVOCABLE NON-TRANSFERABLE STANDBY LETTER OF CREDIT NO. [NUMBER]
ISSUING BANK:
[ISSUER]
[ADDRESS]
[PHONE NUMBER]
[FAX NUMBER]
BENEFICIARY:
CITY OF ANAHEIM
201 S. ANAHEIM BLVD., SUITE 1101
ANAHEIM, CA 92805
ATTN: JANIS LEHMAN
(“BENEFICIARY”)
APPLICANT:
[INSERT]
AMOUNT: USD $[AMOUNT] (AMOUNT XX/100 UNITED STATES DOLLARS) EXPIRATION DATE: [DATE]
WE HEREBY OPEN OUR IRREVOCABLE NON- TRANSFERABLE STANDBY LETTER OF CREDIT (“LETTER OF CREDIT”) IN FAVOR OF THE CITY OF ANAHEIM AND FOR THE
ACCOUNT OF THE ABOVE REFERENCED APPLICANT IN THE AGGREGATE AMOUNT OF USD [AMOUNT] (AMOUNT), WHICH IS AVAILABLE BY PAYMENT WITH US WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. A DRAFT AT SIGHT DRAWN ON [ISSUER], DULY ENDORSED ON ITS REVERSE SIDE
THEREOF BY THE BENEFICIARY, SPECIFICALLY REFERENCING THIS LETTER OF CREDIT NUMBER, AS EXEMPLIFIED BY ATTACHMENT A;
2. THE ORIGINAL LETTER OF CREDIT AND ANY AMENDMENTS ATTACHED THERETO; AND
2 3. A STATEMENT ISSUED ON THE LETTERHEAD OF AND SIGNED BY THE BENEFICIARY STATING THE FOLLOWING:
EITHER:
“THE APPLICANT HAS NOT MADE PAYMENT ON INVOICE NUMBER (INSERT INVOICE NUMBER) PER THE RELEVANT CONTRACTS. WE THEREFORE DEMAND
PAYMENT IN THE AMOUNT OF (INSERT DOLLAR AMOUNT) AS SAME IS DUE AND OWING.”
OR
“THE APPLICANT IS IN DEFAULT WITH RESPECT TO THE P OWER SALES
AGREEMENT BETWEEN EIF HAYPRESS, LLC AND CITY OF ANAHEIM, CALIFORNIA DATED [INSERT AGREEMENT DATE]. WE THEREFORE DEMAND PAYMENT IN THE AMOUNT OF (INSERT DOLLAR AMOUNT) AS SAME IS DUE AND OWING.”
WE ARE ADVISED BY THE APPLICANT THAT THIS LETTER OF CREDIT IS ISSUED IN
CONNECTION WITH THE POWER SALES AGREEMENT BETWEEN EIF HAYPRESS , LLC AND CITY OF ANAHEIM, CALIFORNIA DATED [INSERT AGREEMENT DATE] , ALONG WITH ANY AMENDMENTS AS AMENDED FROM TIME TO TIME (“AGREEMENT”).
INVOICE(S) IN EXCESS OF THE AMOUNT AVAILABLE UNDER THIS LETTER OF CREDIT ARE ACCEPTABLE; HOWEVER, DRAWINGS UNDER THIS LETTER OF CREDIT MAY NOT EXCEED AMOUNT AVAILABLE.
IF A COMPLYING PRESENTATION OF DRAW DOCUMENTS IS MADE PRIOR TO 11:00 AM (PACIFIC STANDARD TIME) ON A BUSINESS DAY, THEN WE SHALL, PRIOR TO THE CLOSE
OF BUSINESS ON THE FIRST FOLLOWING BUSINESS DAY, MAKE PAYMENT IN IMMEDIATELY AVAILABLE FUNDS. IF A COMPLYING PRESENTATION OF DRAW DOCUMENTS IS MADE AT OR AFTER 11:00 AM (PACIFIC STANDARD TIME) ON A BUSINESS
DAY, THEN WE SH ALL, PRIOR TO THE CLOSE OF BUSINESS ON THE SECOND FOLLOWING BUSINESS DAY, MAKE PAYMENT IN IMMEDIATELY AVAILABLE FUNDS.
PARTIAL DRAWINGS AND MULTIPLE PRESENTATIONS ARE PERMITTED.
ALL CHARGES OF THE ISSUER ARE FOR THE ACCOUNT OF THE APPLICANT.
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. THIS
UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED, AMPLIFIED, OR
INCORPORATED BY REFERENCE TO ANY DOCUMENT, CONTRACT, OR AGREEMENT REFERENCED TO HEREIN.
WE HEREBY AGREE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS AND CONDITIONS OF THIS CREDIT SHALL BE DULY HONORED IF PRESENTED TOGETHER WITH DOCUMENT(S) AS SPECIFIED AT OUR OFFICES AT [INSERT
3 ISSUER NAME AND ADDRESS] ON OR BEFORE THE ABOVE STATED EXPIRY DATE, OR ANY EXTENDED EXPIRY DATE IF APPLICABLE. DRAFT(S) DRAWN UNDER THIS CREDIT MUST SPECIFICALLY REFERENCE OUR LETTER OF CREDIT NUMBER.
FACSIMILE OF THE DRAW DOCUMENTS IS ACCEPTABLE TO [INSERT FAX NUMBER]. IF
PRESENTATION IS MADE BY FACSIMILE, PROMPT PHONE NOTIFICATION MUST BE GIVEN TO [INSERT PHONE NUMBER], PROVIDED THAT BENEFICIARY’S FAILURE TO MAKE SUCH FOLLOW UP TELEPHONE CALL SHALL NOT INVALIDATE THE FACSIMILE DRAWING. THE FACSIMILE PRESENTATION SHALL BE DEEMED THE ORIGINAL PRESENTATION. IN THE
EVENT OF A FULL OR FINAL DRAWING, THE ORIGINAL STANDBY LETTER OF CREDIT MUST
BE RETURNED TO THE ISSUER BY OVERNIGHT COURIER AT THE TIME OF THE FACSIMILE PRESENTATION.
THIS LETTER OF CREDIT IS SUBJECT OT THE INTERNATIONAL STANDBY PRACTICES 1998, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590 (“ISP 98”).
VERY TRULY YOURS,
[ISSUER]
________________________
NAME
TITLE
AUTHORIZED SIGNATURE
4 ATTACHMENT A
Drawing Certificate
TO [ISSUING BANK NAME]
IRREVOCABLE NON-TRANSFERABLE STANDBY LETTER OF CREDIT
No.
DRAWING CERTIFICATE
Bank
Bank Address
Subject: Irrevocable Non-transferable Standby Letter of Credit Reference Number:
The undersigned , an authorized representative of City of Anaheim (the “Beneficiary”), hereby certifies to [Issuing Bank Na me] (the “Bank”), and _____________________ (the “Applicant”), with reference to Irrevocable Nontransferable Standby Letter of Credit No. ( ), dated , (the “Letter of Credit”), issued by the Bank in favor of the Beneficiary, as follows as of the date hereof:
1. T he Beneficiary is entitled to draw under the Letter of Credit an amount equal to $ , for the following reason(s) [check applicable provision(s)]:
[ ]A. An Event of Default, as defined in that certain Power Sales Agreement between Applicant and Beneficiary dated as of [ Agreement Date] along with any amendments, as amended from time to time (the “Agreement”), with respect to the Applicant has occurred and is continuing.
[ ]B. A n Early Termination Date has occurred or been designated as a result of an Event of Default (as defined in the Agreement) with respect to the Applicant for which there exist any unsatisfied obligations.
[ ]C. The Bank has heretofore provided written notice to the Beneficiary of the Bank’s intent not to renew the Letter of Credit following the present Expiration Date thereof (“Notice of Non-renewal”), and Applicant has failed to provide the Beneficiary with a replacement letter of credit satisfactory to Beneficiary in its sole discretion within thirty (30) days following the date of the Notice of Non-renewal.
[ ]D. The Beneficiary has not been paid any or all of the Applicant’s payment obligations now due and payable under the Agreement.
5 [ ]E. Other:
________________________________________________________________________________________.
2. Based upon the foregoing, the Beneficiary hereby makes demand under the Letter of Credit for payment of U.S. DOLLARS AND ____/100ths (U.S.$ ), which amount does not exceed (i) the amount set forth in paragraph 1 above, and (ii) the Available Amount under the Letter of Credit as of the date hereof.
3. Funds paid pursuant to the provisions of the Letter of Credit shall be wire transferred to the Beneficiary in accordance with the following instructions:
Unless otherwise provided herein, capitalized terms which are used and not defined herein shall have the meaning given each such term in the Letter of Credit or the Agreement.
IN WITNESS WHEREOF, this Certificate has been duly executed and delivered on behalf of the Beneficiary by its authorized representative as of this ____ day of _____, 20____.
Beneficiary: CITY OF ANAHEIM
By:
Name:
Title: