RENEWABLE POWER PURCHASE AND SALE AGREEMENT
between
CITY OF ANAHEIM
and
ENERGY DEVELOPMENT & CONSTRUCTION CORP. (dba EDCC in CA)
City of Anaheim
[Energy Development & Construction Corp]
Table of Contents
i
TABLE OF CONTENTS
ARTICLE ONE. SPECIAL CONDITIONS ..............................................................2
1.01 Generating Facility.........................................................................................2
1.02 Term. ..............................................................................................................3
1.03 Product Price. .................................................................................................3
1.04 Performance Assurance Amount. ..................................................................3
1.05 Federal Tax Credit. ........................................................................................4
1.06 Compliance and Compliance Expenditure Cap .............................................4 ARTICLE TWO. TERM AND CONDITIONS PRECEDENT; TERMINATION ...6
2.01 Effective Date and Obligations prior to Effective Date. ................................6
2.02 Obligations Prior to Commencement of the Term. ........................................6
2.03 Commencement of Term. ..............................................................................6
2.04 Termination Rights. .......................................................................................7
2.05 Rights and Obligations Surviving Termination. ............................................8 ARTICLE THREE. SELLER’S OBLIGATIONS ....................................................11
3.01 Conveyance of Output, Conveyance of Green Attributes ...........................11
3.02 Achievement of Term Commencement Date. .............................................12
3.03 Maintenance as ERR. ...................................................................................12
3.04 Allocation of Availability Incentive Payments and Non -Availability Charges. .......................................................................................................12
3.05 Permits, Interconnection and Transmission Service Agreements, and CAISO Tariff Compliance. .......................................................................................12
3.06 Performance Assurance. ..............................................................................13
3.07 Seller’s Energy Delivery Obligation. ...........................................................13
3.08 Metering, Communications and Telemetry. ................................................14
3.09 Site Location and Control. ...........................................................................15
3.10 Change in Structure, Ownership or Financing. ............................................16
3.11 Permitting and Design..................................................................................16
3.12 Operation and Record Keeping. ...................................................................17
3.13 Obtaining Scheduling Coordinator Services. ...............................................18
3.14 Forecasting. ..................................................................................................18
3.15 Scheduled Outages. ......................................................................................18
3.16 Provision of Information. .............................................................................19
3.17 Anaheim’s Access Rights. ...........................................................................20
3.18 Obtaining and Maintaining CEC Certification and CEC Verification. .......20
3.19 Notice of Cessation or Termination of Service Agreements. ......................20
3.20 Payments and Invoicing. ..............................................................................20
3.21 Lost Output Report. .....................................................................................20
3.22 NERC Electric System Reliability Standards. .............................................21
3.23 Resource Adequacy Benefits. ......................................................................22 City of Anaheim
[Energy Development & Construction Corp]
Table of Contents
ii
3.24 Generating Facility Repowering. .................................................................23 ARTICLE FOUR. ANAHEIM’S OBLIGATIONS ..................................................26
4.01 Obligation to Pay and Invoice......................................................................26
4.02 Scheduling Coordinator. ..............................................................................26
4.03 Termination of Scheduling Coordinator. .....................................................26
4.04 Exclusive Rights to Product and Cost Responsibility..................................27 ARTICLE FIVE. FORCE MAJEURE .....................................................................28
5.01 No Default for Force Majeure......................................................................28
5.02 Requirements Applicable to the Claiming Party. ........................................28
5.03 Termination. .................................................................................................28 ARTICLE SIX. EVENTS OF DEFAULT; REMEDIES .......................................30
6.01 Events of Default. ........................................................................................30
6.02 Early Termination. .......................................................................................32
6.03 Termination Payment. ..................................................................................33 ARTICLE SEVEN. LIMITATIONS OF LIABILITIES ..........................................34 ARTICLE EIGHT. CREDIT AND COLLATERAL REQUIREMENTS ................36
8.01 Financial Information...................................................................................36
8.02 Performance Assurance. ..............................................................................36
8.03 First Priority Security Interest. .....................................................................38
8.04 Credit and Collateral Covenants. .................................................................39
8.05 Commercial Code Waiver. ...........................................................................39 ARTICLE NINE. GOVERNMENTAL CHARGES ................................................40
9.01 Cooperation to Minimize Tax Liabilities. ....................................................40
9.02 Governmental Charges.................................................................................40
9.03 Providing Information to Taxing Authorities. .............................................40 ARTICLE TEN. MISCELLANEOUS ....................................................................41
10.01 Representations and Warranties. ..................................................................41
10.02 Additional Seller Representations, Warranties and Covenants. ..................41
10.03 Indemnity. ....................................................................................................43
10.04 Assignment. .................................................................................................46
10.05 Consent to Collateral Assignment. ..............................................................46
10.06 Abandonment. ..............................................................................................49
10.07 Governing Law. ...........................................................................................49
10.08 Notices. ........................................................................................................49 City of Anaheim
[Energy Development & Construction Corp]
Table of Contents
iii
10.09 General. ........................................................................................................50
10.10 California Public Records Act. ....................................................................52
10.11 Insurance. .....................................................................................................54
10.12 Nondedication. .............................................................................................57
10.13 Mobile Sierra. ..............................................................................................57
10.14 Simple Interest Payments. ............................................................................57
10.15 Payments. .....................................................................................................57
10.16 Seller Ownership and Control of Generating Facility. ................................58
10.17 Required Material. .......................................................................................58 ARTICLE ELEVEN. CHANGE IN ELECTRIC MARKET DESIGN ....................59 ARTICLE TWELVE. MEDIATION ........................................................................60
12.01 Dispute Resolution. ......................................................................................60
12.02 Mediation. ....................................................................................................60
12.03 Post Mediation. ............................................................................................60
12.04 Provisional Relief.........................................................................................61
City of Anaheim
[Energy Development & Construction Corp]
List of Exhibits
iv
LIST OF EXHIBITS
A. Definitions.
B. Generating Facility and Site Description.
C. Notice List.
D. Forecasting and Scheduling Requirements and Procedures.
E. Payments and Invoicing.
F. Product Replacement Damage Amount.
G. Seller’s Estimate of Lost Output.
H. Form of Letter of Credit.
I. Notice of Anaheim’s Rights.
J. Form of Term Commencement Date Confirmation Letter.
City of Anaheim
[Energy Development & Construction Corp]
Preamble and Recitals
RENEWABLE POWER PURCHASE AND SALE AGREEMENT
between
CITY OF ANAHEIM
and
ENERGY DEVELOPMENT & CONSTRUCTION CORP
PREAMBLE
This Renewable Power Purchase and Sale Agreement, together with the exhibits and attachments (collectively, the “Agreement”) is dated for the purposes of convenience as ______________. The Effective Date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event Seller fails to set forth a date of execution opposite the name of Seller ’s signator, Seller hereby authorizes Anaheim, by and through its representative, to insert the da te of execution by Seller's signator(s) as the date said Agreement, as executed by Seller, is received by Anaheim.
This Agreement is entered into by and between:
(i) City of Anaheim , a municipal corporation organized and existing under the laws of the State of California (referred to interchangeably as “Buyer” or “Anaheim”), whose principal place of business is located at Anaheim City Hall, 200 South Anaheim Blvd., Anaheim, CA 92805, and
(ii) Energy Development & Construction Corp. , a Delaware corporation, (“Seller”) whose principal place of business is located at 707 Esplanade , Suite #C, Redondo Beach, CA 90277.
Anaheim and Seller are sometimes referred to herein individually as a “Party” and jointly as the “Parties.” Unless the context otherwise specifies or requires, capitalized terms in this Agreement have the meanings set forth in Exhibit A.
RECITALS
Seller has an ownership interest in and Operates the Generating Facility, which qualifies as of the Effective Date as an ERR. Seller has the exclusive right to sell to Anaheim all Product as described in Section 1.01(d) throughout the Term, and agrees to sell such Product to Anaheim pursuant to the terms and conditions set forth in this Agreement; and Anaheim is willing to purchase the Product from Seller pursuant to the terms and conditions set forth in this Agreement.
City of Anaheim
[Energy Development & Construction Corp]
Article One Special Conditions
ARTICLE ONE. SPECIAL CONDITIONS
1.01 Generating Facility.
(a) Name: Karen Avenue Wind Farm, CEC-RPS-ID-60396A.
(b) Site location and address: 17550 Karen Avenue, North Palm Springs, CA 92258 as further described in Exhibit B.
(c) Description: As set forth in Exhibit B.
(d) Product: All available CEC RPS Eligible Bucket One Energy produced by the Generating Facility throughout the Term, net of Station Use, and all Green Attributes generated by, associated with or attributable to the Generating Facility throughout the Term. Subject to Section 3.22, the Product does not include Resource Adequacy Benefits or any other Capacity Attributes related to the Project.
(e) Interconnection Point: Auto Recloser - AR0548 on the Coachella or Town Hall 33 kV line on Southern California Edison’s distribution line.
Delivery Point: Point on CAISO Control Area associated with the Project’s PNode located at the Devers Substation, 220 kV Bus (GARNET_7_N012). (f) ERR Type: Wind (as may be modified in connection with a Facility Repower pursuant to Section 3.23.
(g) Contract Capacity: 11.7 MW (as may be modified in connection with a Facility Repower pursuant to Section 3.23).
The Contract Capacity may be reduced by Seller once per Term Year due to catastrophic failure of one or more turbines or other major equipment, effective as of the first day of such Term Year, by Seller delivering Notice to Anaheim on or before the date that is thirty (30) days before the expiration of the preceding Term Year stating the new amount of the Contract Capacity. In no event shall the Contract Capacity be less than six (6) MW. Once the Contract Capacity has been reduced in the manner set forth herein, the Contract Capacity shall not be increased without the prior written consent of both Parties , except that the Contract Capacity may be increased by Seller without the prior written consent of Buyer in connection with a Facility Repower pursuant to Section
3.23. (h) Expected Annual Net Energy Production.
The Expected Annual Net Energy Production for each Term Year will be the value calculated in accordance with the following formula:
City of Anaheim
[Energy Development & Construction Corp]
Article One Special Conditions
EXPECTED ANNUAL NET ENERGY PRODUCTION, in kWh = A x B x C Where:
A = Contract Capacity in kW.
B = 29.5 % capacity factor.
C = 8,760 hours per year.
1.02 Term.
The Term commences as set forth in Section 2.03, and ends on the later of:
(a) the last day of the calendar month that is one hundred twenty (120) months from the Term Commencement Date (“Original Term”); or
(b) the last day of any mutually agreed upon extension of the Original Term. Such extension shall be in writing and executed by both Parties. The Parties have the option for two (2) extensions beyond the Original Term of ten (10) years each, provided that the Product Price shall be renegotiated in good faith for each extension period.
1.03 Product Price.
During the Term the Product Price is an amount equal to all CAISO Revenues associated with each MWh of Product received from the Project at the Delivery Point (net of any CAISO Charges and Fees , as set forth in this Agreement) and any subsequent CAISO True-Ups for prior periods, plus $59/MWh for each MWh of CEC RPS Eligible Bucket One Energy (as defined by Section 399.16(b)(1) of the California Public Utilities Code , or any successor statute, and as evidenced by the transfer of WREGIS Certificates to Buyer).
1.04 Performance Assurance Amount.
For every Term Year during the Term, Seller shall post and maintain Performance Assurance in a dollar amount of Three Hundred Thousand Dollars ($300,000). The first Term Year covers the period from the Term Commencement Date to and including the end of the first Term Year. The Performance Assurance shall be in the form of a Letter of Credit from a bank with 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) and that is acceptable to Anaheim, The Performance Assurance shall be posted with Anaheim on or before, but in no event later than the date set forth in Section
8.02(a)(i).
City of Anaheim
[Energy Development & Construction Corp]
Article One Special Conditions
1.05 Federal Tax Credit.
Seller represents that, as of the Effective Date, a portion of the Generating Facility qualifies for and Seller will take the Federal Production Tax Credit; provided, however, that Seller may elect a different Federal Tax Credit in the event of a Facility Repower.
1.06 Compliance and Compliance Expenditure Cap.
Seller warrants and guarantees that throughout the Term, Seller shall ensure that the Generating Facility will meet or exceed RPS Compliance and that it will include in the design, construction and operation of the Facility any equipment or software that may be required to enable the Facility to comply with the CAISO Tariff. If Seller establishes to Anaheim’s reasonable satisfaction that a change in Applicable Laws, or a change in the CAISO Tariff, occurring after the Effective Date has increased Seller’s out-of- pocket expenses above the cost that could reasonably have been contemplated under the Applicable Laws in existence as of the Effective Date to take all actions to comply with Seller’s obligations under the Agreement with respect to obtaining, conveying or effectuating Anaheim’s right, title, and interest in (as applicable), to the items listed in Sections 1.06(a) through 1.06(d), then, subject to the provisions below, Seller’s required out -of-pocket expenses necessary to maintain Anaheim’s right, title, and interest in (as applicable), to the items listed in Sections 1.06(a) through 1.06(d) are limited to Fifty Thousand Dollars ($50,000) in the aggregate each Term Year (“Compliance Expenditure Cap”) between the Term Commencement Date and the last day of the Term:
(a) Maintaining CEC Certification and CEC Verification; (b) Maintaining RPS Compliance;
(c) Compliance with CAISO Tariff; and
(d) Green Attributes.
Any action required for Seller to comply with its obligations set forth in the first paragraph above, the cost of which will be included in Seller’s Compliance Expenditure Cap, shall be referred to individually as a “Compliance Action” and collectively as the “Compliance Actions.”
If Seller reasonably anticipates the need to incur out -of-pocket expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Anaheim as soon as reasonably practicable with an estimate of such anticipated out-of-pocket expenses in excess of the Compliance Expenditure Cap.
Anaheim will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Action described in the Notice unless Seller’s failure to do so would result in a waiver of such Compliance Action or otherwise negatively impact or impair Anaheim under this Agreement) and shall, within such time do one of the following as applicable:
City of Anaheim
[Energy Development & Construction Corp]
Article One Special Conditions
(1) (A) agree to reimburse Seller for all out-of-pocket expenses associated with one or more Compliance Actions, that exceed the Compliance Expenditure Cap, but the out-of-pocket expenses of those Compliance Actions are below or equal to One Hundred Thousand Dollars ($ 100,000) per Term Year (such Anaheim - agreed upon costs, the “Accepted Compliance Costs”); and (B) waive Seller’s obligation to take those Compliance Actions, for which Anaheim has not agreed to reimburse Seller for such amounts that exceed th e Compliance Expenditure Cap, but the out -of-pocket expenses of those Compliance Actions are below or equal to One Hundred Thousand Dollars ($100,000) per Term Year; or (2) (A) agree to reimburse Seller for all out -of-pocket expenses associated with the Compliance Actions, that exceed the Compliance Expenditure Cap, but the out - of-pocket expenses of those Compliance Actions are below or equal to One Hundred Thousand Dollars ($ 100,000) per Term Year (such Anaheim -agreed upon costs, the “Accepted Compliance Costs”); or (B) waive Seller’s obligation to take the Compliance Actions, that exceed the Compliance Expenditure Cap, but the out-of-pocket expenses of those Compliance Actions are below or equal to One Hundred Thousand Dollars ($100,000) per Term Year; or (3) terminate this Agreement with written Notice to Seller in the event that the noticed anticipated out-of-pocket expenses exceed the Compliance Expenditure Cap by Fifty Thousand Dollars ($50,000) per Term Year; or (4) provided Anaheim will not terminate the Agreement if Anaheim and Seller mutually agree in writing within the sixty (60) day Notice period to an allocation of the amount above Fifty Thousand Dollars ($ 50,000) in excess of the Compliance Expenditure Cap between the Parties. Any such allocation shall at a minimum require (a) Seller to pay out -of-pocket expenses for Compliance Actions up to the Compliance Expenditure Cap; and (b) Anaheim to pay out -of- pocket exp enses for (or waive) Compliance Actions between t he Compliance Expenditure Cap and below or equal to One Hundred Thousand Dollars ($100,000) per Term Year.
Any costs in excess of the Compliance Expenditure Cap as to which Anaheim agrees to reimburse Seller shall be also referred to herein as “Accepted Compliance Costs”. If Anaheim agrees to reimburse Seller for Accepted Compliance Costs in excess of the Compliance Expenditure Cap, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Anaheim shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions that exceed the Compliance Expenditure Cap, not to exceed the Accepted Compliance Costs. The Public Utilities General Manager, or designee, is authorized to approve (a) Accepted Compliance Costs and/or (b) waive Seller ’s Compliance Actions between the Compliance Expenditure Cap and below or equal to One Hundred Thousand Dollars ($100,000) per Term Year.
*** End of ARTICLE ONE ***
City of Anaheim
[Energy Development & Construction Corp]
Article Two Term and Conditions Precedent; Termination
ARTICLE TWO. TERM AND CONDITIONS PRECEDENT; TERMINATION
2.01 Effective Date and Obligations prior to Effective Date. (a) This Agreement becomes effective on the Effective Date. (b) Upon the execution and delivery of this Agreement, each Party acknowledges receipt of the following items:
(i) Signing authority consisting of evidence of authority, incumbency and specimen signature of each person executing the Agreement or any other document on its behalf in connection with the Agreement; and (ii) In the case of Seller, c ertified copies of resolutions of the board of directors of Seller or of its relevant committees and, in the case of Anaheim, certified copies of the City Council Agenda Minutes, in each case showing that the Party is authorized to execute and deliver this Agreement and to perform its obligations under the Agreement.
2.02 Obligations Prior to Commencement of the Term.
(a) Seller’s Interconnection and Transmission Service Agreements. (i) Seller shall have obtained (i) a FERC -approved interconnection agreement to interconnect the Generating Facility to the Transmission Provider’s electric system and (ii) any service agreement required to transmit Product to the Delivery Point , and any such interconnection agreement and service agreement shall not terminate prior to the end of the Term.
(b) Seller’s Regulatory and Governmental Filings.
(i) Seller shall have received, and will maintain throughout the Term, CEC Certification.
2.03 Commencement of Term.
(a) Commencement of Term.
(i) The Term shall commence upon the date on which satisfactory performance of each of the following has occurred and as specified in the Term Commencement Date Confirmation Letter , in the form attached hereto as Exhibit J (“Term Commencement Date”):
(1) Seller is prepared to perform (and to continue to perform) its energy delivery and related obligations in accordance with the requirements hereof;
City of Anaheim
[Energy Development & Construction Corp]
Article Two Term and Conditions Precedent; Termination
(2) Seller has met all conditions set forth in Section 3.11(c); (3) Seller shall have posted with Anaheim the Performance Assurance required under Section 8.02 in the amount set forth in Section 1.04;
(4) Seller shall be Forecasting in accordance with Exhibit D; (5) Seller shall be delivering Product to Anaheim at the Delivery Point; and
(6) Seller shall have executed of the Term Commencement Date Confirmation Letter in the form attached here as Exhibit J. (ii) The Parties shall cooperate to achieve and document the satisfaction of the conditions described in Section 2.03 above and the occurrence of the Term Commencement Date.
2.04 Termination Rights.
(a) Termination Rights of the Parties.
If either Party exercises a termination right, as set forth in Sections 2.04(b)(i),
2.04(b)(ii), or 5.03, a Termination Payment will be calculated in accordance with Section 6.03, the Forward Settlement Amount will be zero dollars ($0), the terminating Party will be considered the Non -Defaulting Party and, Seller will be entitled after paying the Termination Payment, if any, to a return of the remaining balance of the Performance Assurance provided to Anaheim. (b) Termination Rights of Both Parties.
(i) Termination Rights of Seller.
Seller has no Termination Rights under this Section 2.04(b). (ii) Termination Rights of Anaheim.
(1) Anaheim has the right to terminate this Agreement on Notice, which will be effective immediately after such Notice is given to Seller, if the Term Commencement Date has not been
achieved by July 1, 2026 and such delay is not the fault of Buyer and is not excused by Force Majeure.
(2) Anaheim has the right to terminate this Agreement on Notice, which will be effective ninety (90) Business Days after such Notice is given to Seller, if Seller is unable (other than the result of Force Majeure) to deliver Product to Anaheim at the Delivery Point on CAISO Controlled Grid after the Term Commencement City of Anaheim
[Energy Development & Construction Corp]
Article Two Term and Conditions Precedent; Termination
Date for a period of at least one hundred and eighty (180) consecutive days, provided that the period shall be at least three hundred and sixty-five (365) days in the event that the inability to deliver Product is due to equipment failure where replacement equipment cannot be reasonably procured within one hundred and eighty (180 ) days and Seller is making commercially reasonable efforts to procure such replacement equipment as soon as possible.
(3) Anaheim has the right to terminate this Agreement on Notice, which will be effective thirty (30) days after such Notice is given to Seller, if (1) Seller does not have the sole and exclusive rights to sell Product to Buyer as of the Effective Date and Seller fails to cure such circumstance within twenty-nine (29) days after the Notice is given; or (2) Seller fails to maintain, or loses, sole and exclusive rights to sell Product to Buyer and Seller is unable to secure sole and exclusive rights to sell Produc t to Buyer prior the expiration of such thirty (30) days after Notice from Buyer. (c) Uncured Defaults.
Upon the occurrence of an Event of Default, other than those set forth in this Section 2.04, the Non-Defaulting Party may terminate this Agreement as set forth in Section 6.02.
(d) End of Term.
This Agreement automatically terminates at the end of the Term, as extended, as set forth in Section 1.02 unless earlier terminated as provided in this Agreement.
2.05 Rights and Obligations Surviving Termination.
(a) Survival of Rights and Obligations Generally.
The rights and obligations that are intended to survive a termination of this Agreement are all of those rights and obligations that this Agreement expressly provides survive any such termination and those that arise from Seller’s or Anaheim’s covenants, a greements, representations, and warranties applicable to, or to be performed, at or during any time before or as a result of the termination of this Agreement, including, but not limited to:
(i) The obligation of Seller to pay the Product Replacement Damage Amount, if applicable, as set forth in Section 3.06(c); (ii) The obligation to make, or the right to receive, a Termination Payment as set forth in Section 6.03;
City of Anaheim
[Energy Development & Construction Corp]
Article Two Term and Conditions Precedent; Termination
(iii) The indemnity obligations as set forth in Section 10.03; (iv) The obligation of confidentiality as set forth in Section 10.10; (v) The right to pursue remedies as set forth in Sections 6.02; (vi) The limitation of liabilities as set forth in Article Seven; (vii) A Party’s obligation:
(1) To make or receive payment, as applicable, for CAISO Revenues and make payment for CAISO Charges and Fees , as applicable, during the Term as set forth in Article Three, Exhibit E; and
(2) To make or receive Monthly Cash Settlement Amounts as set forth in Exhibit E;
(viii) The covenants and indemnifications regarding the limitations on Seller’s and Seller’s Affiliates’ ability to offer, make or agree to third party sales as set forth in Sections 2.05(b) and 3.01(d), if applicable; (ix) The obligation of Seller to convey all Green Attributes associated with all electricity generation from the Project to Anaheim as part of the Product being delivered as set forth in Section 3.01(b); (x) Anaheim’s obligation to return Seller’s Performance Assurance at the end of the Term, except to the extent that Anaheim is expressly permitted to retain such Performance Assurance; and
(xi) The Dispute resolution provisions of Article Seven. (b) Limitations on Seller’s and Seller’s Affiliates’ Ability to Make or Agree to Third-Party Sales from the Generating Facility after Specified Terminations of this Agreement.
(i) If Seller terminates this Agreement, as provided in Section 5.03 (based on a Force Majeure event as to which Seller is the Claiming Party) , neither Seller nor Seller’s Affiliates may sell, or enter into a contract to sell electric energy, or Green Attributes generated by, associated with or attributable to a generating facility installed at the Site to a party other than Anaheim for a period of two (2) years following the effective date of such termination (the “Restricted Period”).
(ii) This prohibition on contracting and sale will not apply if, before entering into such contract or making a sale to a party other than Anaheim, Seller or Seller’s Affiliate provides Anaheim with a written City of Anaheim
[Energy Development & Construction Corp]
Article Two Term and Conditions Precedent; Termination
offer to sell the electric energy and Green Attributes to Anaheim on terms and conditions materially similar to the terms and conditions contained in this Agreement (other than price) and Anaheim fails to accept such offer within sixty (60) days and secure approval of such offer from the Public Utilities Board and City Council within an additional seventy-five (75) days after Anaheim’s receipt thereof. (iii) Neither Seller nor Seller’s Affiliates may sell or transfer the Generating Facility, or any part thereof, or land rights or interests in the Site during the Restricted Period so long as the limitations contained in this Section
2.05(b) apply, unless the transferee agrees to be bound by the terms set forth in this Section 2.05(b) pursuant to a written agreement approved by Anaheim. Upon termination of this Agreement pursuant to the Section referenced in the first paragraph of this Section 2.05(b), Seller shall deliver a Notice of Anaheim’s Rights in respect of the Site, in the form attached hereto as Exhibit I, that Anaheim may record giving notice of Anaheim’s rights under Section 2.05(b).
(iv) Seller shall indemnify and hold Anaheim harmless from all benefits lost and other damages sustained by Anaheim as a result of any breach of the covenants contained within this Section 2.05(b).
*** End of ARTICLE TWO ***
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
ARTICLE THREE. SELLER’S OBLIGATIONS
3.01 Conveyance of Output, Conveyance of Green Attributes. (a) Metered Amounts. Seller shall dedicate and convey the entire Metered Amounts throughout the Term to Anaheim. Seller shall convey title to all Metered Amounts to Anaheim at the Point of Title Transfer.
In the event that no Metered Amounts delivered in a given Calculation Period possess the Green Attributes set forth in California Public Utilities Code Section 399.16 (b) (1) and as evidenced by transfer of WREGIS Certificates to Anaheim, Seller shall comp ensate Anaheim for acting as Scheduling Coordinator in the manner and amount set forth in Exhibit E; provided however, no compensation shall be due until WREGIS has completed its issuance of WREGIS Certificates for a Calculation Period. In connection with the foregoing and so long as the foregoing applies, Anaheim shall only compensate Seller for such electric energy received at the Delivery Point in an amount equal to all CAISO Revenue, less any CAISO Charges and Fees. In the event that WREGIS subsequently issues WREGIS Certificates for Metered Amounts during a Calculation Period, Anaheim shall reimburse Seller the amounts previously charged and paid under Exhibit E for Scheduling Coordinator services.
(b) Green Attributes. Seller hereby provides and conveys all Green Attributes associated with all electricity generation from the Project to Anaheim as part of the Product being delivered. Seller represents and warrants that Seller holds the right, title and interests to all G reen Attributes from the Project, and Seller agrees to convey and does hereby convey all such Green Attributes to Anaheim as included in the delivery of the Product from the Project. (c) Further Action by Seller . Subject to Section 1.06, commencing upon the Term Commencement Date and throughout the Term, Seller shal l, at its own cost, take all actions and execute all documents or instruments necessary to effectuate the validity and ownership of the Green Attr ibutes by Anaheim, including:
(i) Complying with the RPS Law and Applicable Laws regarding the certification and transfer of Renewable Energy Credits, including participation in the Western Renewable Energy Generation Information System (“WREGIS”) or other process recognized under Applicable Laws for the registration, transfer or ownership of Green Attributes associated with the Generating Facility; and
(ii) Committing to Anaheim the full output of Metered Amounts and Green Attributes produced by the Generating Facility.
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(d) Other Sales of Product. From the Term Commencement Date throughout the Term, Seller sh all not s ell the Product (or any portion thereof) to any entity other than Anaheim.
3.02 Achievement of Term Commencement Date.
Seller shall use commercially reasonable efforts to ensure that The Term Commencement Date and the Energy Delivery Obligation commence on January 1, 2026. If Seller fails to achieve the Term Commencement Date by J uly 1, 2026, other than as a result of the fault or negligence of Anaheim or Force Majeure, Anaheim may terminate this Agreement upon written notice to Seller (which notice must be provided no later than October 1, 2026) and may, as its sole and exclusive remedy, retain the Performance Assurance as liquidated damages. Maintenance as ERR.
Seller covenants that, except where there has been a change in law after the execution of this Agreement and Seller has used commercially reasonable efforts to comply with such change in law, throughout the term the Project is qualified and certified by th e CEC as an ERR, and the Product delivered to Anaheim meets the criteria set forth in California Public Utilities Code Section 399.16 (b)(1).
3.03 Allocation of Availability Incentive Payments and Non-Availability Charges.
If the Generating Facility is subject to the terms of the Availability Standards, Non - Availability Charges, and Availability Incentive Payments as contemplated under Section 40.9 of the CAISO Tariff, any Availability Incentive Payments will be for the benefit of Seller and for Seller’s account and any Non-Availability Charges will be the responsibility of Seller and for Seller’s account.
3.04 Permits, Interconnection and Transmission Service Agreements, and CAISO Tariff Compliance.
(a) Seller shall obtain and maintain throughout the Term any and all interconnection and transmission service rights and Permits required to effect delivery of the Product from the Generating Facility to the Delivery Point. (b) Seller shall be responsible for all costs and charges directly caused by, associated with, or allocated to the interconnection of the Generating Facility to the Transmission Provider’s electric system and transmission of Product from the Generating Facilit y to the Transmission Provider’s electric system.
For each month during the Delivery Term, Seller shall deliver and convey the electric energy associated with the Product to the Delivery Point. At Seller’s expense, Seller shall arrange for the Transmissi on Provider to deliver the Product from the Point of Title Transfer to the Delivery Point at the Devers Substation of Southern California Edison Company under Transmission Provider’s Wholesale Distribution Access Tariff . Anaheim shall arrange and be responsible for transmission service from the Devers Substation and shall schedule or arrange for scheduling services to receive the Product at the City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
Delivery Point. In addition, Seller shall be responsible for any fees, costs or charges imposed on or liabilities, risks of loss and damage associated with the possession, transmission and delivery of the Product up to the Delivery Point.
Title to the Product generated by the Project shall transfer from Seller to Buyer at the Point of Title Transfer.
(c) Seller shall comply with the CAISO Tariff, including securing and maintaining in full force all required CAISO agreements, certifications and approvals. (d) Seller shall secure, and maintain as necessary, through the CAISO the CAISO Resource ID that is to be used solely for this Generating Facility.
3.05 Performance Assurance.
Seller shall post and maintain the Performance Assurance in accordance with Sections
1.04 and 8.02.
3.06 Seller’s Energy Delivery Obligation.
(a) Performance Period.
During the first two (2) Term Years , and annually thereafter, for every consecutive two (2) Term Year period (each a “Performance Period”), Seller is subject to the Product delivery requirements (“Seller’s Energy Delivery Obligation”) and damages for failure to perform as set forth in this Section 3.06. (b) Performance Requirements.
(i) Seller’s Energy Delivery Obligation.
Seller’s Energy Delivery Obligation for each Performance Period shall be no less than 36,282 MWh for the two (2) Term Years comprising the Performance Period, provided that the Energy Delivery Obligation shall be proportionately reduced in the event of permissible capacity reductions pursuant to Section 1.01(g) or in the event that Seller’s ability to deliver is constrained by the acts or omissions of Anaheim. (ii) Event of Deficient Energy Deliveries.
At the end of each Performance Period if the sum of the Qualified Amounts plus any Lost Output (calculated in accordance with Exhibit G) during that Performance Period does not equal or exceed Seller’s Energy Delivery Obligation for that Performance Period, then an Event of Deficient Energy Deliveries will be deemed to have occurred.
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(c) Product Replacement Damage Amount.
(i) If an Event of Deficient Energy Deliveries occurs, as determined in accordance with Section 3.06(b)(ii) above, the Parties acknowledge that the damages sustained by Anaheim associated with Seller’s failure to meet Seller’s Energy Delivery Obligation would be difficult or impossible to determine, or that obtaining an adequate remedy would be unreasonably time consuming or expensive, and therefore agree that Seller shall pay Anaheim as liquidated damages an amount which is intended to compensate Anaheim for S eller’s failure to perform, irrespective of whether Anaheim actually purchased such replacement Product by reason of Seller’s failure to perform (the “Product Replacement Damage Amount”).
(ii) Within ninety (90) days after the end of the applicable Performance Period, Anaheim shall calculate any Product Replacement Damage Amount as set forth in Exhibit F, and shall provide Notice to Seller of any Product Replacement Damage Amount owing, including a detailed explanation of, and rationale for, its calculation methodology, annotated work papers and source data.
(iii) Seller shall have thirty (30) days after receipt of Anaheim’s Notice to review Anaheim’s calculation and either pay the entire Product Replacement Damage Amount claimed by Anaheim or pay any undisputed portion and provide Notice to Anaheim of the portion Seller disputes along with a detailed explanation of, and rationale for, Seller’s calculation methodology, annotated work papers and source data. (iv) The Parties shall negotiate in good faith to resolve any disputed portion of the Product Replacement Damage Amount and shall, as part of such good faith negotiations, promptly provide information or data relevant to the dispute as each Party may possess which is requested by the other Party.
(v) If the Parties are unable to resolve a dispute regarding any Product Replacement Damage Amount within thirty (30) days after the sending of a Notice of dispute by Seller, either Party may submit the dispute to mediation as provided in Article Twelve.
3.07 Metering, Communications and Telemetry.
(a) CAISO Approved Meter.
Seller shall, at its own cost, install, maintain and test all CAISO Approved Meters pursuant to the CAISO Tariff.
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(b) Anaheim’s Access to Meters.
(i) Seller shall promptly provide Anaheim access to all meter data and data acquisition services both in real -time, and at later times, as Anaheim may reasonably request; provided that Seller shall not be obligated to incur unreimbursed capital costs to comply with the foregoing. The foregoing limitation shall not apply to any requirements imposed by the CAISO Tariff.
(ii) Throughout the Term, Seller shall provide instructions to the CAISO granting authorizations or other documentation sufficient to provide Anaheim with access to the CAISO Approved Meter and to Seller’s settlement data on OMAR.
(c) CAISO Approved Meter Maintenance.
(i) Seller shall test and calibrate the CAISO Approved Meter, as necessary, but in no event will the period between testing and calibration dates be greater than twenty-four (24) months.
(ii) Seller shall bear its own costs for any meter check or recertification of the CAISO Approved Meter.
(iii) Seller shall meet CAISO Tariff requirements in connection with the CAISO Approved Meter.
(iv) Seller shall use certified test and calibration technicians to perform any work associated with the CAISO Approved Meter.
(v) Seller shall inform Anaheim of test and calibration dates, provide Anaheim with access to observe and witness such testing and calibration, and provide Anaheim certified results of tests and calibrations within thirty (30) days after Seller receives such certified results. Anaheim hereby agrees to comply with all safety and security rules at Seller's Site.
(d) Telemetry System.
Seller shall be responsible for designing, furnishing, installing, operating, maintaining and testing a real -time Telemetry System capable of interconnecting the CAISO Approved Meter(s) and the Generating Facility’s control system with the CAISO’s Energy Communication Network as and to the extent required by CAISO. The Telemetry System shall be designed in accordance with the CAISO monitoring and communication requirements.
3.08 Site Location and Control.
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(a) This Agreement is Site-specific as set forth in Section 1.01(b) and as described in Exhibit B. Seller may change the location of the Site only upon Anaheim’s prior written consent, which consent is in Anaheim’s sole discretion. (b) Seller shall have Site Control throughout the Term and shall provide evidence to Anaheim of such Site Control upon Anaheim’s request. (c) Seller shall provide Anaheim with prompt Notice of any change in the status of Seller’s Site Control.
3.09 Change in Structure, Ownership or Financing.
Seller shall provide Notice to Anaheim within five (5) Business Days after an actual or pending change in the status of any of the following:
(a) Seller’s exact and complete name, form of organization and state of incorporation or organization, or address of Seller’s principal place of business; (b) Seller’s ultimate parent, including Seller’s members, general partners, or joint ventures, Seller’s chief executive officer or equivalent thereof, as applicable; (c) Seller’s Letter of Credit issuer’s Moody’s, Fitch and S&P’s senior unsecured debt rating (but only to the extent that Seller (i) has been notified by the issuer of the Letter of Credit, or (ii) has actual knowledge); (d) Seller’s short -term, mid -term and long -term ownership structure of the Generating Facility; and
(e) Seller’s Operating period financing, including the sources of equity investments and debt financings.
No Notice provided pursuant to this Section 3.09 constitutes or substitutes for any consent required pursuant to Sections 10.04 or 10.05.
3.10 Permitting and Design.
At no cost to Anaheim, Seller shall be responsible for:
(a) Using commercially reasonable efforts to acquire and maintain all Permits throughout the Term;
(b) Providing to Anaheim, at least thirty (30) days before the Term Commencement Date, the following Generating Facility information:
(i) Site plan drawings for the Generating Facility;
(ii) Electrical one-line diagrams;
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(c) Providing Anaheim advance Notice at the earliest practicable time of any proposed material changes in the Generating Facility, but in no event less than thirty (30) days before the changes are to be made, which Notice must include the information set forth in Section 3.10(c), along with all specifications and drawings pertaining to any such changes.
3.11 Operation and Record Keeping.
(a) Seller shall Operate the Generating Facility in accordance with Prudent Electrical Practices.
(b) Seller shall comply with Operating orders in compliance with the CAISO Tariff.
(c) On or prior to the Term Commencement Date:
(i) Seller shall be Forecasting to Anaheim in accordance with Exhibit D; (ii) Seller shall commence delivering Product to Anaheim at the Delivery Point;
(iii) Seller shall have registered with the NERC as the Generating Facility’s Generator Owner and Generator Operator if Seller is required to be a registered entity pursuant to the NERC Reliability Standards; (iv) Seller shall demonstrate to Anaheim’s reasonable satisfaction that Seller has complied with its obligations with respect to the CAISO Approved Meter as set forth in Section 3.07(a);
(v) Seller shall have furnished to Anaheim all insurance documents required under Section 10.11; and
(vi) Seller shall comply with applicable CAISO Tariff provisions regarding reporting the availability of the Generating Facility.
(d) Information maintained pursuant to this Section 3.11 shall be kept by Seller throughout the Term and shall be provided or made available to Anaheim within twenty (20) days after any Notice.
(e) Seller shall be fully responsible to B uyer for all acts and omissions of any subcontractor. All duties, responsibilities, and obligations of Seller under this Agreement shall remain with Seller irrespective of whether Seller utilizes a subcontractor(s). Nothing in this Agreement shall create any contractual relationship between Buyer and subcontractor nor shall it create any obligation on the part of B uyer to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law.
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
3.12 Obtaining Scheduling Coordinator Services.
Seller and Anaheim shall comply with all applicable CAISO Tariff procedures, protocols, rules and testing as necessary for Anaheim to submit Bids and/or Schedules for the Product produced by the Generating Facility.
(a) Designating Anaheim as Scheduling Coordinator.
(i) At least sixty (60) days before the Term, Seller shall take all actions and execute and deliver to Anaheim all documents necessary to authorize or designate Anaheim as the Scheduling Coordinator throughout the Term.
Anaheim shall take all actions and execute and deliver to CAISO all documents necessary to authorize Anaheim as the Scheduling Coordinator throughout the Term.
(ii) Throughout the Term, Seller shall not authorize or designate any other party to act as Scheduling Coordinator, nor shall Seller perform, for its own benefit, the duties of Scheduling Coordinator.
(b) Replacement of Anaheim as Scheduling Coordinator.
At least forty-five (45) days before the end of the Term, or as soon as practicable before the date of any termination of this Agreement before the end of the Term, Seller shall take all actions necessary to terminate the designation of Anaheim as Seller’s Scheduling Coordinator as of the hour ending 24:00 on the last day of the Term. These actions include the following:
(i) Seller shall submit to the CAISO a designation of a new Scheduling Coordinator to replace Anaheim;
(ii) Seller shall cause the newly designated Scheduling Coordinator to submit a letter to the CAISO that it is accepting the designation; and (iii) Seller shall inform Anaheim in writing of the last date on which Anaheim will be Seller’s Scheduling Coordinator consistent with this Section. Anaheim must consent to any date other than the last day of the Term, such consent not to be unreasonably withheld.
3.13 Forecasting.
Seller shall Forecast in accordance with the provisions of Exhibit D.
3.14 Scheduled Outages.
(a) Throughout the Term, Seller shall submit to Anaheim, Seller’s schedule of proposed planned Outages (“Outage Schedule”) as outlined in Exhibit D.
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(b) Seller shall arrange and coordinate all Outage Schedules with the CAISO in accordance with the CAISO Tariff. Anaheim shall cooperate reasonably with Seller as necessary.
(c) If a condition occurs at the Generating Facility which causes Seller to revise its Outage Schedule, Seller shall promptly provide Notice to Anaheim of such change after the condition causing the change becomes known to Seller. (d) 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 Applicable Law mandating the reporting by publicly owned utilities of expected or experienced Outages by electric energy generating facilities under contract to supply electric energy.
3.15 Provision of Information.
Seller shall promptly provide to Anaheim copies of:
(a) All documents setting forth the ownership interest or change of ownership of the Site, Generating Facility, and Product.
(b) All applications and approvals or disapprovals relating to CEC Certification, CEC Verification, any Permit, and PIRP;
(c) All draft, preliminary, final and revised copies of reports, studies and analyses furnished by the CAISO or any Transmission Provider, and any correspondence related thereto, concerning the interconnection of the Generating Facility to the Transmission Provider’s electric system or the transmission of electric energy on the Transmission Provider’s electric system;
(d) The following Generating Facility and metering information as may be requested by Anaheim:
For each CAISO Approved Meter:
(1) Generating Station/Unit ID;
(2) CAISO Resource ID;
(3) CAISO Approved Meter Device ID;
(4) Password;
(5) Data path (network (ECN) or modem);
(6) If modem, phone number;
(7) Copy of meter certification;
(8) List of any CAISO metering exemptions (if any); and City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(9) Description of any compensation calculations such as transformer losses and line losses.
For the Generating Facility:
(1) Utility transmission/distribution one line diagram; (2) Physical location, address or descriptive identification; (3) Telephone number on site;
(4) Telephone number of control room;
(5) Telephone number for operational issues; and
(6) Telephone number for administrative issues.
3.16 Anaheim’s Access Rights.
Seller hereby grants Anaheim the right of ingress and egress during normal business hours upon twenty-four (24) hour advance notice to examine the Site and Generating Facility for any purpose reasonably connected with this Agreement. Anaheim hereby agrees to comply with all safety and security rules at the Site. Seller shall provide an advanced copy of all safety and security rules to Anaheim and/or clearly post all safety and security rules on Site.
3.17 Obtaining and Maintaining CEC Certification and CEC Verification.
Seller shall take all necessary steps, including making or supporting timely filings with the CEC, to obtain and maintain CEC Certification and CEC Verification throughout the Term.
3.18 Notice of Cessation or Termination of Service Agreements.
Seller shall provide Notice to Anaheim within one (1) Business Day after termination of, or cessation of service under, any agreement necessary to deliver the Product to Anaheim at the Delivery Point or to meter the Metered Amounts.
3.19 Payments and Invoicing.
Throughout the Term, Seller shall issue Payment Invoices to Anaheim in accordance with Exhibit E.
3.20 Lost Output Report.
(a) Monthly Report; Anaheim Review.
(i) If Seller wishes to receive credit towards its Energy Delivery Obligation under Section 3.06 for Lost Output, then within sixty (60) days after the end of a Performance Period, Seller shall prepare and provide to City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
Anaheim a Lost Output Report for such Performance Period as defined in Section 3.06 and in accordance with Exhibit G.
(ii) Anaheim will have thirty (30) days after receipt of Seller’s monthly Lost Output Report to review such report.
(iii) Upon Anaheim’s request, Seller shall promptly provide to Anaheim any additional data and supporting documentation necessary for Anaheim to audit and verify any matters in the Lost Output Report. (b) Disputes of Lost Output.
(i) If Anaheim disputes Seller’s Lost Output calculation, Anaheim shall provide Notice to Seller within thirty (30) days after receipt of Seller’s Lost Output Report and include Anaheim’s calculations and other data supporting its position.
(ii) The Parties shall negotiate in good faith to resolve any dispute. (iii) If the Parties are unable to resolve a dispute within thirty (30) days after Anaheim’s giving the dispute Notice, either Party may submit the dispute to mediation as provided in Article Twelve.
(iv) Seller will have no right to claim any Lost Output for any month that was not identified in the original Lost Output Report for that month; provided Seller may supplement the amount of Lost Output claimed (“Supplemental Lost Output”) for the month with a supplemental Lost Output Report (“Supplemental Lost Output Report”) if Seller can demonstrate that Seller neither knew nor could have known through the exercise of reasonable diligence about the Supplemental Lost Output within the foregoing thirty (30) day period and Seller provides the Supplemental Lost Output Report within ten (10) Business Days after learning the facts which provide the basis for the Supplemental Lost Output claim.
(c) Product Replacement Damage Amount Calculation.
The Lost Output amount that will be used by Anaheim in the Product Replacement Damage Amount calculation, set forth in Exhibit F, will be the amount calculated pursuant to Exhibit G or otherwise resolved pursuant to Section 3.20(b).
3.21 NERC Electric System Reliability Standards.
Throughout the Term, Seller shall be:
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(a) Responsible for complying with any NERC Reliability Standards applicable to the Generating Facility, including registration with NERC as applicable under the NERC Reliability Standards and implementation of all applicable processes and procedures required by NERC, WECC or CAISO for compliance with the NERC Reliability Standards; and
(b) Liable for all penalties assessed by NERC (through WECC or otherwise) for violations of the NERC Reliability Standards by the Generating Facility or Seller. Seller shall notify Anaheim of any penalties or pending penalties assessed by NERC to either the Generating Facility or the Seller.
Anaheim will cooperate reasonably with Seller in connection with Seller’s compliance with any applicable NERC Reliability Standards. However, if Seller learns that NERC (through WECC or otherwise) is considering or intends to assess Seller with a penalty that Seller believes is attributable to Anaheim’s actions or inactions as SC as described in the document entitled “NERC Reliability S tandards - Responsibilities of the Generator Operator, Scheduling Coordinator, CAISO, and Reliability Coordinator” or other successor description or document on the CAISO website at the time of the potential assessment, Seller shall provide Anaheim with immediate Notice upon its receipt of any NERC/WECC notice of violation to allow Anaheim to take part in administrative processes, discussions or settlement negotiations with NERC, WECC or other entity arising from or related to the alleged violation or possible penalty. If the penalty is nonetheless assessed in spite of Anaheim’s participation in the processes, discussions or settlement negotiations, or Anaheim waives its right to take part in the processes, discussion or settlement negotiations, Anaheim shall reimburse Seller for the penalty to the extent that:
(i) It was caused by Anaheim’s actions or inactions as SC as described in the document entitled “NERC Reliability Standards - Responsibilities of the Generator Operator, Scheduling Coordinator, CAISO, and Reliability Coordinator” or other successor description or document on the CAISO website at the time of the violation; and
(ii) The penalty was actually assessed against Seller by NERC and paid by Seller to NERC.
3.22 Resource Adequacy Benefits.
Buyer shall have a right of first offer to evaluate and negotiate purchase agreement(s) for all Resource Adequacy Benefits associated with the Generating Facility. Prior to any sale by Seller to a third party of Resource Adequacy Benefits associated with the Generating Facility, Seller shall offer to sell such Resource Adequacy Benefits to Buyer at commercially reasonable price based on current market conditions . If Buyer and Seller are unable to agree upon the terms and conditions of such sale within thirty (30) days of Seller’s offer, Seller shall be free for a period of six (6) months to enter into a City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
contract to sell Resource Adequacy Benefits associated with the Generating Facility to any third party , provided that Seller shall not offer to sell such Resource Adequacy Benefits at a materially lower price or on materially more favorable terms to the third party relative to those that Seller offered to Buyer. If Seller fails to enter into a contract with a third party within such six (6) months, Seller shall again be obligated to offer to sell any Resource Adequacy Benefits associated with the Generatin g Facility to Anaheim as provided above and the process provided above shall repeat.
3.23 Generating Facility Repowering.
Notwithstanding anything else in this Agreement, Seller shall be permitted, without the consent of Anaheim, to modify the Generating Facility by (i) replacing existing Wind Turbines with new or different wind turbines having a projected useful life that is no shorter than the expected useful life of the existing Wind Turbines, so long as the aggregate Wind Turbine generating capacity after such replacement does not exceed
13.7 MW, (ii) adding energy storage devices that shall not negatively affect or interfere with the operation or maintenance of the Generating Facility, and/or (iii) making other changes reasonably required to facilitate the foregoing (“Facility Repower”).
If Seller elects to undertake a Facility Repower:
(a) No less than one hundred twenty (120) days prior to the commencement of the Facility Repower Period, Seller shall provide to Anaheim Notice of the Facility Repower pursuant to Section 3.10(c), which Notice shall describe in reasonable detail the work to be undertaken and include the expected start and end dates of the Facility Repower Period which shall not to exceed six (6) months. (b) In recognition of emerging technologies and opportunities that will continue to evolve during the Original Term extension(s), Seller shall have the right to incorporate the use of energy storage devices as a Generating Facility benefit, on the condition tha t (i) the incorporation of energy storage devices does not affect the Generating Facility’s RPS Compliance, (ii) the incorporation of energy storage devices does not (x) diminish Anaheim’s rights or benefits hereunder or (y) increase or materially change Anaheim’s obligations or liabilities hereunder, other than (A) with respect to Anaheim acting as Scheduling Coordinator for the Generating Facility (including, if applicable, any storage facilities), or (B) to the extent that Seller provides reasonable compensation to Anaheim, (iii) Seller is otherwise able to continue to comply with all obligations of Seller under this Agreement, and (iv) Seller obtains increased insurance in the types and amounts reasonably acceptable to Anaheim for the energy storage devices.
(c) Seller shall deliver to Anaheim no less than one hundred twenty (120) days prior to the expected resumption of commercial operation of the Generating Facility following the Facility Repower Period, a price quote for all Products, City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
Green Attributes, and Resource Adequacy Benefits , in each case only with regard to the energy storage devices or of the storage component of a hybrid project comprised of the Generating Facility and energy storage devices (collectively, “Energy Storage Products”). Anaheim shall have the first right to all Energy Storage Products and have sixty (60) days after receipt of the aforementioned price quote from Seller to accept or reject such offer for all Energy Storage Products. If, during the required time period, Anaheim does not accept or reject the offer for the Energy Storage Products, then for purposes hereunder, Anaheim shall be deemed to have rejected such offer. If Anaheim accepts such offer, the Parties shall enter into good faith negotiations for a period of one hundred twenty (120) days for the amendment of this Agreement to reflect such offer and any intervening market conditions, and Seller shall use commercially reasonable efforts to coordinate the energy storage devices with minimal interference to the Generating Facility. If (i) Anaheim rejects the offer for the Energy Storage Products pursuant to this clause (c), (ii) Anaheim is deemed to have rejected such offer by failing to accept or reject the offer for the Energy Storage Products timely as provided above, or (iii) the Parties fail to amend this Agreement within one hundred twenty (120) days as set forth in the immediately preceding sentence, then Seller shall be free to sell, transfer, assign, and/or otherwise dispose of all Energy Storage Products without notice to or consent from Anaheim for the duration of the Term , provided that Seller shall not subsequently offer monetary or other terms for the same Energy Storage Products that are more favorable than those declined by Buyer to another buyer without first offering such monetary or other terms to Buyer and providing Buyer with at least twenty (20) days to accept or decline such terms. (d) For the avoidance of doubt, Anaheim shall not be responsible for any cost associated with the energy storage devices’ construction, decommissioning or demolition of the Facility Repower or any environmental or other liability associated with the construction, decommissioning or demolition of the Facility Repower without regard to the timing or cause of the construction, decommissioning or demolition.
(e) All rights and obligations under Sections 1.01(g), 3.11, 3.12, 3.13, 3.14, 3.166, and 3.188 shall be suspended during the Facility Repower Period to the extent reasonably necessary to allow Seller to undertake the Facility Repower; such rights and obligations will recommence in full force and effect on the first day following the Facility Repower Period.
(f) As soon as is reasonably practicable following end of the Facility Repower Period, Seller shall provide to Anaheim:
(i) updated information as applicable with respect to the items set forth in Section 3.15,
City of Anaheim
[Energy Development & Construction Corp.]
Article Three Seller’s Obligations
(ii) an updated Exhibit B, and any other updated Exhibits as are reasonably necessary for Anaheim to continue to operate as the Scheduling Coordinator of the Generating Facility, and
(iii) the definition of “Contract Capacity” shall be amended to be equal to the nameplate capacity of the Generating Facility as set forth in such updated Exhibit B.
(g) Seller shall be excused from Seller’s Energy Delivery Obligation pursuant to Section 3.06 during and after the Facility Repower Period for up to a period of six (6) months.
(h) Anaheim shall negotiate in good faith with Seller regarding such changes to the Agreement as may be necessary to accommodate the Facility Repower. *** End of ARTICLE THREE***
[Energy Development & Construction Corp.]
Article Four Anaheim’s Obligations
ARTICLE FOUR. ANAHEIM’S OBLIGATIONS
4.01 Obligation to Pay and Invoice.
(a) Anaheim shall provide information to Seller regarding CAISO Revenues and CAISO Charges and Fees, and shall pay Seller, in accordance with Exhibit E. (b) Throughout the Term, Anaheim shall purchase Product generated by the Generating Facility and delivered at the Delivery Point in accordance with this Agreement, CAISO Tariff Protocols and Applicable Law. Anaheim has no obligation to purchase from Seller any Product that is not or cannot be delivered to the Delivery Point as a result of any circumstance, including:
(i) An Outage of the Generating Facility;
(ii) A Force Majeure event under Article Five.
4.02 Scheduling Coordinator.
(a) Commencing upon the Term Commencement Date, Anaheim agrees to act, and shall act as the Generating Facility’s Scheduling Coordinator on behalf of Seller and carry out all duties as Scheduling Coordinator in a commercially reasonable manner and in accordance with this Agreement, and the CAISO Tariff protocols.
(b) In accordance with Section 3.01, the CAISO Tariff, and Exhibit D, Anaheim shall Schedule the electric energy generated by the Generating Facility with the CAISO during all hours in all days of all months throughout the Term. (c) Anaheim shall have no right to curtail or limit, or instruct Seller or the Generating Facility to curtail or limit, the production or output of the Generating Facility; provided, however, that the foregoing does not prevent Anaheim, acting as the Generating Facility’s Scheduling Coordinator, from communicating to Seller or the Generating Facility any curtailment orders or instructions from the CAISO or the Transmission Provider.
4.03 Termination of Scheduling Coordinator.
Anaheim shall submit a letter to the CAISO identifying the date on which Anaheim resigns as Seller’s Scheduling Coordinator for the Generating Facility on the first to occur of the following:
(a) Thirty (30) days before the end of the Term;
(b) The date of any Notice from Seller of suspension of its performance pursuant to Section 6.02;
(c) The date of any early termination of this Agreement. [Energy Development & Construction Corp.]
Article Four Anaheim’s Obligations
4.04 Exclusive Rights to Product and Cost Responsibility. (a) Anaheim has the exclusive right, at any time or from time to time throughout the Term, to sell, assign, convey, transfer, allocate, designate, award, report or otherwise provide any and all Green Attributes included in the Product to third parties; provided, no such action constitutes a transfer of, or a release of Anaheim from, its obligations under this Agreement ; provided further that Seller shall not bear any costs or risk associated with such third party sale(s) or transfer(s).
(b) Subject to Seller’s obligations under this Agreement, including Sections 3.01,
3.07, and 3.11, Anaheim shall be responsible for any costs arising from or directly related to Anaheim’s accounting for or otherwise claiming Green Attributes.
(c) Except for those CAISO Charges and Fees that result from Anaheim’s failure to perform its duties as Scheduling Coordinator for the Generating Facility in accordance with the CAISO Tariff and this Agreement, which shall accrue to, and be solely the responsibility of, Anaheim, Seller shall be responsible for any and all CAISO Charges and Fees related to the Scheduling of Product from Generating Facility into the CAISO Markets.
*** End of ARTICLE FOUR***
City of Anaheim
[Energy Development & Construction Corp.]
Article Five Force Majeure
ARTICLE FIVE. FORCE MAJEURE
5.01 No Default for Force Majeure.
Neither Party will be considered to be in default in the performance of any of its obligations set forth in this Agreement (except for obligations to pay money) when and to the extent failure of performance is caused by Force Majeure.
5.02 Requirements Applicable to the Claiming Party.
If a Party, because of Force Majeure, is rendered wholly or partly unable to perform its obligations when due under this Agreement, that Party (the “Claiming Party”), will be excused from whatever performance is affected by the Force Majeure to the extent so affected, provided, the Claiming Party must have complied with (b) directly below.
In order to be excused from its performance obligations hereunder by reason of Force Majeure:
(a) The Claiming Party, within fourteen (14) days after the initial occurrence of the claimed Force Majeure, must give the other Party Notice describing the particulars of the occurrence; and
(b) The Claiming Party must provide timely evidence reasonably sufficient to establish that the occurrence constitutes Force Majeure as defined in this Agreement.
The suspension of the Claiming Party’s performance due to Force Majeure will be of no greater scope and of no longer duration than is required by the Force Majeure. The Force Majeure will not relieve the Claiming Party from any performance obligation that arose prior to the Force Majeure event.
In addition, the Claiming Party shall use commercially reasonable and diligent efforts to remedy its inability to perform.
This Section 5.02 does not require the settlement of any strike, walkout, lockout or other labor dispute on terms which, in the sole judgment of the Claiming Party, are contrary to its interest.
It is understood and agreed that the settlement of strikes, walkouts, lockouts or other labor disputes will be at the sole discretion of the Claiming Party.
When the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall give the other Party prompt Notice to that effect.
5.03 Termination.
Either Party may terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is provided, if an event of Force Majeure extends for City of Anaheim
[Energy Development & Construction Corp.]
Article Five Force Majeure
more than three hundred sixty-five (365) consecutive days (or five hundred forty-five (545) consecutive days in the event that the Force Majeure renders inoperable the Generating Facility’s main Substation) which materially and adversely affects the operations of the Claiming Party, or the Generating Facility is destroyed or rendered inoperable by a Force Majeure event, and an independent, third party engineer determines in writing that the Generating Facility cannot be repaired or replaced within an aggreg ate period of twenty -four (24) months after the first day of such Force Majeure event.
*** End of ARTICLE FIVE***
City of Anaheim
[Energy Development & Construction Corp.]
Article Six Events of Default; Remedies
ARTICLE SIX. EVENTS OF DEFAULT; REMEDIES
6.01 Events of Default.
An “Event of Default” means, with respect to a Party (a “Defaulting Party”), the occurrence of any of the following:
(a) With respect to either Party:
(i) Any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated if the representation or warranty is continuing in nature, provided, if:
(1) The misrepresentation or breach of warranty is capable of a cure, an Event of Default will be deemed to occur if the
misrepresentation or breach of warranty is not remedied by the Defaulting Party within ten (10) Business Days after Notice to the Defaulting Party by the non-Defaulting Party; or
(2) The misrepresentation or breach of warranty is not capable of a cure, but the non-Defaulting Party’s damages resulting from the inaccuracy can reasonably be ascertained, an Event of Default will be deemed to occur if the payment of such damages is not made within ten (10) Business Days after a Notice of these damages is provided by the non -breaching Party to the
Defaulting Party;
(ii) Except for an obligation to make payment when due, the failure to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default specified below or to the extent excused by a Force Majeure event) if this failure is not remedied within thirty (30) days after Notice by the non-breaching Party of the failure of the breaching Party, which Notice sets forth in reasonable detail the nature of the failure; provided, if the failure is not reasonably capable of being cured within the thirty (30) day cure period specified above, the breaching Party will have such additional time (not exceeding an additional one hundred twenty (120) days) as is reasonably necessary to cure the failure, so long as t he breaching Party promptly commences and diligently pursues the cure;
(iii) A Party fails to make when due any payment required under this Agreement and this failure is not cured within five (5) Business Days after Notice of the failure by the other Party;
(iv) A Party becomes Bankrupt; or
City of Anaheim
[Energy Development & Construction Corp.]
Article Six Events of Default; Remedies
(v) A Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of that Party under this Agreement either by operation of law or pursuant to an agreement reasonably satisfactory to the other Party;
(b) With respect to Seller:
(i) Seller fails to post and maintain the Performance Assurance pursuant to Sections 1.04 and 8.02;
(ii) Except as permitted in Sections 10.04 and 10.05, Seller does not have an ownership interest in the Generating Facility as Seller represents in Section 10.02(a)(i);
(iii) Seller does not have Site Control in accordance with Section 3.08 and Seller has not cured this failure within sixty (60) days after the occurrence of the event which results in the failure;
(iv) The sum of Qualified Amounts plus Lost Output in any consecutive twelve (12) month period is not at least thirty percent (30%) of the Energy Delivery Obligation and Seller fails to demonstrate to Anaheim’s reasonable satisfaction, within ten (10) Business Days after Notice from Anaheim, a legitimate reason for the failure to meet the thirty percent (30%) minimum; provided, that this Section 6.01(c)(iv) shall not apply during a Facility Repower Period;
(v) Seller intentionally or knowingly Forecasts or delivers, or attempts to Forecast or deliver, at the Delivery Point for sale under this Agreement electric energy that was not in fact generated by the Generating Facility; (vi) Seller installs Generating Facility Capacity in excess of the Contract Capacity (as it may be modified hereunder) and attempts to sell the output of such excess capacity to any person, including Anaheim, and this Generating Facility Capacity is not removed within five (5) Business Days after Notice from Anaheim;
(vii) Seller removes from the Site equipment upon which the Contract Capacity has been based , except (1) for the purposes of replacement, refurbishment, repair or maintenance, (2) if such equipment has failed as a result of ordinary aging and wear and tear and is not capable of refurbishment or repair, or (3) in connection with a Facility Repower , and the equipment is not returned within five (5) Business Days after Notice from Anaheim;
City of Anaheim
[Energy Development & Construction Corp.]
Article Six Events of Default; Remedies
(viii) The Generating Facility consists of an ERR type(s) different than that specified in Section 1.01(c) and (f) (subject to a Facility Repower); (ix) Except where there has been a change in Applicable Laws that would affect Seller’s status as an ERR, and Seller has made commercially reasonable efforts in accordance with Section 10.02(b) to comply with the change in Applicable Laws, the Generating Facility fails to qualify as an ERR;
(x) Except where there has been a change in Applicable Laws that would affect the eligibility of electric energy to qualify as renewable energy for the purposes of the RPS Law and Seller has made commercially reasonable efforts in accordance with Section 10.02(c) to comply with the change in Applicable Laws, any electric energy from the Generating Facility and sold or to be sold to Anaheim hereunder fails to qualify as eligible renewable energy for purposes of the RPS Law;
(xi) A termination of, or cessation of service under, any agreement necessary for Seller:
(1) To interconnect the Generating Facility to the Transmission Provider’s electric system;
(2) To transmit the Product on the Transmission Provider’s electric system; or
(3) To comply with the CAISO Tariff;
if such service is not restored within thirty (30) days after such termination or cessation; provided, that this Section 6.01(c)(xi) shall not apply with respect to any such termination or cessation of service in connection with a Facility Repower.
(xii) Subject to Sections 1.06, 3.01(b) and 4.04(b), as applicable, Seller fails to take any actions necessary to dedicate, convey or effectuate the use of any and all Green Attributes, including that set forth in California Public Utilities Code Section 399.16(b)(1) as evidence d by WREGIS Certificates, for Anaheim’s sole benefit as and to the extent specified in Section 3.01;
(xiii) Seller fails to satisfy the Credit and Collateral Requirements in Article Eight and the failure is not cured within five (5) Business Days after Notice by Anaheim of the failure.
6.02 Early Termination.
There will be no opportunity for cure except as specified in Section 6.01, Section 6.02, or pursuant to a Collateral Assignment Agreement agreed upon by Anaheim, Seller and City of Anaheim
[Energy Development & Construction Corp.]
Article Six Events of Default; Remedies
Lender in accordance with Section 10.05.
If an Event of Default shall have occurred and is continuing, the Party taking the default (the “Non-Defaulting Party”) has the right:
(a) To designate by Notice, which will be effective five (5) Business Days after the Notice is given, a day, no later than twenty (20) days after the Notice is effective, for the early termination of this Agreement (an “Early Termination Date”); provided, a Non -Defaulting Party’s right to terminate this Agreement pursuant to this Section 6.02(a) may only be exercised not later than two hundred forty (240) days from either (i) the Non -Defaulting Party's Notice to the Defaulting Party of the act and/or omission giving rise to the applicable Event of Default , or (ii) the date the Non -Defaulting Party becomes aware of the Event of Default, if no cure period is provided; and (b) To pursue all remedies available at law or in equity against the Defaulting Party (including monetary damages), except to the extent that such remedies are limited by the terms of this Agreement.
Upon the effective designation of an Early Termination Date, the Non-Defaulting Party will have the right to immediately suspend performance under this Agreement, including performance under Section 3.01(d) but excluding the obligation to post Performance Assurance in accordance with Section 3.05 or Article Eight .
Notwithstanding the foregoing, this Article Six shall not apply to or govern those defaults described in and governed by Sections 1.06 and 2.04.
6.03 Termination Payment.
As soon as practicable after an Early Termination Date is declared, the Non-Defaulting Party shall provide Notice to the Defaulting Party of the Termination Payment. The Notice must include a written statement setting forth, in reasonable detail, the calculation of such Termination Payment including the Forward Settlement Amount, together with appropriate supporting documentation.
If the Termination Payment is positive, the Defaulting Party shall pay such amount to the Non-Defaulting Party within ten (10) Business Days after the Notice is provided.
If the Termination Payment is negative (i.e., the Non -Defaulting Party owes the Defaulting Party more than the Defaulting Party owes the Non-Defaulting Party), then the Non-Defaulting Party shall pay such amount to the Defaulting Party within thirty (30) days after the Noti ce is provided. The Parties shall negotiate in good faith to resolve any disputes regarding the calculation of the Termination Payment. Any disputes which the Parties are unable to resolve through negotiation may be submitted for resolution through mediation as provided in Article Twelve. *** End of ARTICLE SIX***
City of Anaheim
[Energy Development & Construction Corp.]
Article Seven Limitations of Liabilities
ARTICLE SEVEN. LIMITATIONS OF LIABILITIES
EXCEPT AS SET FORTH HEREIN, THERE ARE NO WARRANTIES BY EITHER
PARTY UNDER THIS AGREEMENT, INCLUDING ANY 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.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S
LIABILITY WILL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL
OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED, UNLESS
THE PROVISION IN QUESTION PROVIDES THAT THE EXPRESS REMEDIES ARE IN ADDITION TO OTHER REMEDIES THAT MAY BE AVAILABLE.
SUBJECT TO SECTION 12.03, IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY WILL BE LIMITED
TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES WILL
BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.
DIRECT DAMAGES INCLUDE THE VALUE OF ANY FEDERAL TAX CREDITS SELECTED IN SECTION 1.05, DETERMINED ON AN AFTER-TAX BASIS, THAT ARE
LOST BY SELLER DUE TO AN EVENT OF DEFAULT BY ANAHEIM WHERE SELLER
PROVIDED NOTICE OF EARLY TERMINATION TO ANAHEIM IN ACCORDANCE WITH SECTION 6.02(a) AND SELLER HAS NOT BEEN ABLE TO MITIGATE THAT LOSS AFTER USE OF REASONABLE EFFORTS.
UNLESS EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PROVISIONS OF SECTION 10.03 (INDEMNITY), NEITHER PARTY
WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY
OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION
DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE.
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 PASSIVE.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN City of Anaheim
[Energy Development & Construction Corp.]
Article Seven Limitations of Liabilities
ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED
HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.
NOTHING IN THIS ARTICLE PREVENTS, OR IS INTENDED TO PREVENT ANAHEIM
FROM PROCEEDING AGAINST OR EXERCISING ITS RIGHTS WITH RESPECT TO ANY PERFORMANCE ASSURANCE.
*** End of ARTICLE SEVEN***
City of Anaheim
[Energy Development & Construction Corp.]
Article Eight Credit and Collateral Requirements
ARTICLE EIGHT. CREDIT AND COLLATERAL REQUIREMENTS
8.01 Financial Information.
Seller shall maintain all records and data, including accounting books and records, that it maintains as of the Effective Date pertaining to the Generating Facility and all records and data that it compiles after the Effective Date concerning Seller’s performance and management of this Agreement during the Term and for a period of one (1) year following the termination of this Agreement. During such time, upon fifteen (15) days’ notice to Seller, Buyer or a third -party auditor appointed by Buyer shall be granted reasonable access to such records and data.
8.02 Performance Assurance.
(a) Posting Performance Assurance.
(i) Within ten (10) Business Days of the Effective Date, Seller shall post Performance Assurance with Anaheim.
(ii) The Performance Assurance due to Anaheim by Seller will be as set forth in Section 1.04.
(iii) Seller shall maintain the Performance Security in full force and effect, subject to any draws made by Anaheim in accordance with this Agreement, throughout the Delivery Term and thereafter until such time as Seller has satisfied all monetary obligations that survive 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, Anaheim shall promptly return to Seller the unused portion of the Performance Security.
(iv) The Performance Assurance must be in the form of a Letter of Credit in a substantially similar form to Exhibit H or as reasonably acceptable to Anaheim.
(b) Letters of Credit.
Performance Assurance provided in the form of a Letter of Credit must be subject to the following provisions:
(i) Each Letter of Credit must be maintained for the benefit of Anaheim; (ii) Seller shall:
(1) Renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit; City of Anaheim
[Energy Development & Construction Corp.]
Article Eight Credit and Collateral Requirements
(2) Provide alternative Performance Security acceptable to Anaheim 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
(3) Provide alternative Performance Security acceptable to Anaheim within five (5) Business Days if the bank that issued the outstanding Letter of Credit fails to honor Anaheim’s properly documented request to draw on the outstanding Letter of Credit;
(iii) Upon the occurrence of a Letter of Credit Default, Seller shall provide to Anaheim a substitute Letter of Credit acceptable to Anaheim, in each case on or before the first Business Day after the occurrence thereof.
Upon the occurrence of Letter of Credit Derating, Seller shall provide to Anaheim a substitute Letter of Credit acceptable to Anaheim, in each case on or before the fifth (5th) Business Day after the occurrence of the Letter of Credit Derating;
(iv) If an Early Termination Date has been designated or has occurred following an Event of Default by Seller and Seller has unsatisfied payment obligations, Anaheim 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.
In addition, Anaheim will have the right to draw on the Letter of Credit for any of the following reasons:
1. The Letter of Credit will expire in fewer than ten (10) local Business Days , and Seller has not provided with Anaheim alternative Performance Assurance acceptable to Anaheim.
2. The Seller or the issuer of the Letter of Credit has provided written Notice to Anaheim of either Seller’s or the issuer’s intent not to renew or extend the Letter of Credit following the present expiration date thereof (“Notice of Non -Renewal”), and Selle r has failed to provide Anaheim with a replacement Letter of Credit satisfactory to Anaheim, in its sole discretion, within thirty (30) days following the date of the Notice of Non - Renewal.
3. Anaheim has not been paid any or all of Seller’s payment obligations due and payable under the Agreement and this failure is not cured within five (5) Business Days after Notice of the failure by Anaheim.
City of Anaheim
[Energy Development & Construction Corp.]
Article Eight Credit and Collateral Requirements
Notwithstanding Anaheim’s receipt of cash proceeds of a drawing under the Letter of Credit, Seller shall remain liable for any:
(1) Failure to provide or maintain sufficient Performance Assurance (including failure to replenish a Letter of Credit to the Performance Assurance Amount in the event that Anaheim
draws against the Letter of Credit for any reason other than to satisfy a final payment); or
(2) Any amounts owing to Anaheim and remaining unpaid after the application of the amounts so drawn by Anaheim; and
(v) 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.
8.03 First Priority Security Interest.
To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Anaheim a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignmen t of the Performance Assurance posted pursuant to Sections 3.05 and 8.02 and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of Anaheim, and Seller agrees to take all action as Anaheim reasonably requires in order to perfect Anaheim’s Security Interest in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof.
Upon or any time after the occurrence of, and during the continuation of, an Event of Default caused by Seller, an Early Termination Date resulting from an Event of Default caused by Seller, or an occasion provided for in this Agreement where Anaheim is authorized to retain all or a portion of the Performance Assurance, Anaheim may do any one or more of the following:
(a) Exercise any of its rights and remedies with respect to the Performance Assurance, including any such rights and remedies under law then in effect; (b) Draw on any outstanding Letter of Credit issued for its benefit; and (c) Liquidate all Performance Assurance then held by or for the benefit of Anaheim free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.
Anaheim shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce Seller’s obligations under this Agreement (Seller remains liable for any amounts owing to Anaheim after such application), subject to City of Anaheim
[Energy Development & Construction Corp.]
Article Eight Credit and Collateral Requirements
Anaheim’s obligation to return any surplus proceeds remaining after these obligations are satisfied in full.
8.04 Credit and Collateral Covenants.
(a) Seller shall, from time to time as reasonably requested by Anaheim execute, acknowledge, record, register, deliver and file all such notices, statements, instruments and other documents as may be necessary or advisable to render fully valid and enforceable under all Applicable Laws the rights, liens and priorities of Anaheim with respect to the Security Interest provided for herein and therein.
(b) During any period during which Seller is a Defaulting Party, Seller may not:
(i) Declare or pay any dividend, or make any other distribution or payment, on account of any equity interest in Seller; or
(ii) Otherwise make any distribution or payment to any Affiliate of Seller , except for payments to an Affiliate under contract with Seller to operate and maintain the Generating Facility in the ordinary course of business.
8.05 Commercial Code Waiver.
This Agreement sets forth the entirety of the agreement of the Parties regarding credit, collateral and adequate assurances. Except as expressly set forth in Article Eight of this Agreement, neither Party:
(a) Has or will have any obligation to post margin, provide letters of credit, pay deposits, make any other prepayments or provide any other financial assurances, in any form whatsoever; or
(b) Will have reasonable grounds for insecurity with respect to the creditworthiness of a Party that is complying with the relevant provisions of Article Eight of this Agreement;
and all implied rights relating to financial assurances arising from Section 2609 of the California Commercial Code or case law applying similar doctrines, are hereby waived. *** End of ARTICLE EIGHT***
City of Anaheim
[Energy Development & Construction Corp.]
Article Nine Governmental Charges
ARTICLE NINE. GOVERNMENTAL CHARGES
9.01 Cooperation to Minimize Tax Liabilities.
Each Party shall use reasonable efforts to implement the provisions of and to administer this Agreement in accordance with the intent of the Parties to minimize all taxes, so long as neither Party is materially adversely affected by such efforts.
9.02 Governmental Charges.
Seller shall pay or cause to be paid all taxes imposed by any Governmental Authority (“Governmental Charges”) on or with respect to the Metered Amounts (and any contract associated with the Metered Amounts) arising before the Delivery Point, including ad valorem taxes and other taxes attributable to the Generating Facility, land, land rights or interests in land for the Generating Facility.
Anaheim shall pay or cause to be paid all Governmental Charges on or with respect to the Metered Amounts at and from the Delivery Point. If Seller is required by law or regulation to remit or pay Governmental Charges which are Anaheim’s responsibility hereunder, Anaheim shall promptly reimburse Seller for such Governmental Charges upon Seller’s proof of payment thereof.
If Anaheim is required by Applicable Laws to remit or pay Governmental Charges which are Seller’s responsibility hereunder, Anaheim may deduct or offset such amounts from the Monthly Cash Settlement Amounts to Seller made pursuant to Exhibit E.
If Anaheim elects not to deduct or offset such amounts from Seller’s Monthly Cash Settlement Amounts, Seller shall promptly reimburse Anaheim for such amounts upon request by Anaheim. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which that Party is exempt under the law.
9.03 Providing Information to Taxing Authorities.
Seller or Anaheim, as necessary, shall provide information concerning the Generating Facility to any requesting taxing authority.
*** End of ARTICLE NINE***
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
ARTICLE TEN. MISCELLANEOUS
10.01 Representations and Warranties.
On the Effective Date, each Party represents and warrants to the other Party that:
(a) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(b) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; (c) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; (d) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Affiliates, any legal proceedings that could materially adversely affect its ability to perform under this Agreement; (e) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
(f) It is acting for its own account and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(g) It has not relied upon any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(h) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to make or take delivery of the Product as contemplated in this Agreement.
10.02 Additional Seller Representations, Warranties and Covenants. (a) Seller hereby covenants to Anaheim that throughout the Term:
(i) Seller shall fully own, or shall have the exclusive rights to sell the output of, the Generating Facility. Notwithstanding the foregoing, Seller may maintain a partial ownership in the Generating Facility; provided that, this ownership interest (i) shall not cause an Event of Default or City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
otherwise prevent Seller from fulfilling its obligations herein; (ii) shall not be grounds for the change of law relief set forth in Section 1.06 herein. Seller shall not allow a change of ownership of Generating Facility without Anaheim's prior written consent, which consent shall not be unreasonably withheld or delayed;
(ii) Seller shall Operate the Generating Facility;
(iii) Seller has the sole and exclusive right to sell all rights, title, and interest in the Product, including any of its Green Attributes, to Anaheim throughout the Term, and, except as set forth herein, Seller shall not sell the Product to any other person or entity;
(iv) Seller shall deliver to Anaheim the Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person;
(v) Seller shall obtain, maintain and remain in compliance with all Permits, interconnection agreements and transmission rights necessary to Operate the Generating Facility and to deliver Product from the Generating Facility to the Delivery Point;
(vi) Subject to Sections 1.06, 3.02, and 3.17, Seller shall take all actions necessary for the Project to qualify and be certified by the CEC as an ERR;
(vii) Subject to Section 1.06, Seller shall take all necessary steps, including making or supporting timely filings with the CEC, to obtain and maintain CEC Certification and CEC Verification throughout the Term; (viii) Subject to Sections 1.06, 3.02, and 3.17, Seller shall take all actions necessary for the Product delivered to Anaheim to qualify under the requirements of the RPS Law and to meet the criteria set forth in California Public Utilities Code Section 399.16(b)(1) ; and (ix) Seller shall at all times operate the Generating Facility in full compliance with all applicable local, state, and federal laws, rules, and regulations, including without limitation those related to Cal/OSHA, Fed/OSHA, and environmental compliance.
(b) Seller, and, if applicable, its successors, represents and warrants that throughout the Term of this Agreement:
(i) The Project qualifies and is certified by the CEC as an ERR, and the Project’s output delivered to Anaheim meets the criteria set forth in California Public Utilities Code Section 399.16 (b)(1); and City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
(ii) The Project’s output delivered to Anaheim qualifies under the requirements of the RPS Law.
To the extent a change in Applicable Laws 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 if Seller has used commercially reasonable efforts to comply with such change in Applicable Laws. (c) Seller and, if applicable, its successors, represents and warrants that throughout the Term of this Agreement the RECs transferred to Anaheim conform to the definition and attributes required for compliance with the RPS Law. To the extent a change in Applicable Laws occur after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall be governed by Section 1.06.
(d) The term “commercially reasonable efforts” as used in Section 10.02(b) means efforts consistent with and subject to Section 1.06.
(e) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Anaheim to be tracked in the WREGIS, or its successor, will be taken prior to the first delivery under the Agreement.
10.03 Indemnity.
(a) Anaheim’s Indemnification Obligations.
In addition to any other indemnification obligations Anaheim may have elsewhere in this Agreement, which are hereby incorporated in this Section
10.03(a), Anaheim releases, and shall indemnify, defend and hold harmless Seller, and Seller’s directors, officers, employees, agents, assigns, and successors in interest, from and against any and all loss, liability, damage, claim, cost, charge, demand, fine, pe nalty or expense of any kind or nature (including any direct, damage, claim, cost, charge, demand, or expense, and attorneys’ fees (including cost of in-house counsel) and other costs of litigation, mediation, and in the case of third-party claims only, indirect and consequential loss or damage), arising out of or in connection with:
(i) any breach made by Anaheim of its representa tions and warranties in Section 10.01;
(ii) so long as Seller has fully complied with the Generator Operator Obligations and Generator Owner Obligations, any NERC Standards Non-Compliance Penalties which are solely due to Anaheim’s negligence in performing its role as Seller’s Scheduling Coordinator throughout the Term;
(iii) injury or death to persons, including Seller’s employees, and physical damage to property, including Seller’s property, where the damage City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
arises out of, is related to, or is in connection with, Anaheim’s gross negligence or willful misconduct.
This indemnity applies notwithstanding Seller’s active or passive negligence.
However, Seller will not be indemnified hereunder for its loss, liability, damage, claim, cost, charge, demand or expense to the extent caused by its gross negligence or willful misconduct.
(b) Seller’s Indemnification Obligations.
In addition to any other indemnification obligations Seller may have elsewhere in this Agreement, which are hereby incorporated in this Section 10.03(b), Seller releases, and shall indemnify, defend and hold harmless Anaheim, and Anaheim’s elected and appointed officials, officers, employees, agents, assigns, and successors in interest, from and against any and all loss, liability, damage, claim, cost, charge, demand, penalty, fine or expense of any kind or nature (including any direct, damage, claim, cost, charg e, demand, or expense, and attorneys’ fees (including cost of in-house counsel) and other costs of litigation, mediation, and in the case of third -party claims only, including claims arising from a breach of Section 10.02(b), indirect or consequential loss or damage), arising out of or in connection with:
(i) any breach made by Seller of its representations and warranties in Sections 10.01 and 10.02;
(ii) NERC Standards Non -Compliance Penalties or an attempt by any Governmental Authority, person or entity to assess such NERC Standards Non -Compliance Penalties against Anaheim, except to the extent solely due to Anaheim’s negligence in performing its role as Seller’s Scheduling Coordinator throughout the Term;
(iii) injury or death to persons, including Anaheim employees, and physical damage to property, including Anaheim property, where the damage arises out of, is related to, or is in connection with, Seller’s obligations or performance under this Agreement;
(iv) injury or death to any person or damage to any property, including the personnel or property of Anaheim, to the extent that Anaheim would have been protected had Seller complied with all of the provisions of Section 10.11; provided, the inclusion of this Section 10.03(b)(iv) is not intended to create any express or implied right in Seller to elect not to provide the insurance required under Section 10.11;
(v) any breach by Seller of the covenants set forth in Section 2.05(b); provided that in the event it is determined that an ambiguity exists between the indemnity obligations set forth in Section 2.05(b) and City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
Section 10.03(b), such ambiguity in the language shall be interpreted in the best interests of Anaheim.
This indemnity applies notwithstanding Anaheim’s active or passive negligence. However, Anaheim will not be indemnified hereunder for its loss, liability, damage, claim, cost, charge, demand or expense to the extent caused by its gross negligence or willful misconduct.
(c) Mutual Indemnification.
Each Party shall indemnify, defend and hold harmless the other Party and the other Party’s directors, officers, employees, elected and appointed officials, and agents, assigns, and successors in interest, from and against any and all loss, liability, damage, claim, cost, charge, demand, fine, penalty or expense of any kind or nature (including direct, indirect, or consequential loss, damage, claim, cost, charge, demand, or expense, including attorneys’ fees (including costs of in-house counsel) and other co sts of litigation, mediation), arising out of or in connection with a Party’s failure to pay any Governmental Charges for which such Party is responsible under Article Nine.
(d) Indemnification Claims.
All claims for indemnification by a Party entitled to be indemnified under this Agreement (an “Indemnified Party”) by the other Party (the “Indemnitor”) will be asserted and resolved as follows:
(i) If a claim or demand for which an Indemnified Party may claim indemnity is asserted against or sought to be collected from an Indemnified Party by a third party, the Indemnified Party shall as promptly as practicable give Notice to the Indemnitor; provided, failure to provide this Notice will relieve Indemnitor only to the extent that the failure actually prejudices Indemnitor.
(ii) Indemnitor will have the right to control the defense and settlement of any claims in a manner not adverse to Indemnified Party but cannot admit any liability or enter into any settlement without Indemnified Party’s approval.
(iii) Indemnified Party may employ counsel at its own expense with respect to any claims or demands asserted or sought to be collected against it; provided, if counsel is employed due to a conflict of interest or because Indemnitor does not assume control of the defense, Indemnitor will bear the expense of this counsel.
(e) Survival of Indemnification Rights and Obligations.
All indemnity rights and obligations survive the termination of this Agreement.
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
(f) No Responsibility for RPS Law Penalties.
Seller shall not be liable or responsible for any fine, penalty or assessment levied against Anaheim in connection with Anaheim’s failure to comply with its obligations under the RPS Law or any successor legislation or program.
10.04 Assignment.
(a) Except as provided in paragraph (b) of this Section 10.04 or Section 10.05, neither Party can assign this Agreement or its rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
(b) Subject to the provisions of this Section 10.04(b), Buyer may make a limited assignment in connection with a municipal prepayment transaction to an entity that has a credit rating of at least BBB - from S&P, BBB- from Fitch, or Baa3 from Moody’s (“Limited Buyer Assignee”) of Buyer’s right to receive Product and Buyer’s obligation to make payments to the Seller. The limited assignment shall be expressly subject to the Limited Buyer Assignee’s time ly payment of amounts due under the PPA and the execution of a n assignment agreement between Buyer, Seller and the Limited Buyer Assignee to be mutually agreed upon by such parties, provided that agreement may not be unreasonably withheld or delayed. Buyer may make such assignment upon not less than thirty (30) days’ advance written notice by delivering a written request for such assignment and a draft assignment agreement to Seller, and upon receipt Seller agrees to: (i) comply with Limited Buyer Assignee’s reasonable requests for know-your-customer and similar accou nt opening information and documentation with respect to Seller, including but not limited to information related to forecasted generation, credit rating, and compliance with requirements of Applicable Law; and (ii) in a timely manner cooperate on the content of the assignment agreement, not to be unreasonably withheld, conditioned or delayed (provided, for avoidance of doubt, Seller shall not be required to agree to any terms or conditions which are reasonably expected to have a material adverse effect on Seller or are inconsistent with the terms of this Agreement) and implement such assignment.
(c) Any direct or indirect change of control of Seller (whether voluntary or by operation of law) will be deemed an assignment and will require the prior written consent of Anaheim, which consent shall not be unreasonably withheld.
10.05 Consent to Collateral Assignment.
Subject to the provisions of this Section 10.05, Seller has the right to assign this Agreement as collateral for any financing or refinancing of the Generating Facility.
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
In connection with any financing or refinancing of the Generating Facility by Seller, Anaheim shall in good faith work with Seller and Lender to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”).
The Collateral Assignment Agreement must be in form and substance agreed to by Anaheim, Seller and Lender, and must include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer):
(a) Anaheim shall give Notice of an Event of Default by Seller, to the person(s) to be specified by Lender in the Collateral Assignment Agreement, before exercising its right to terminate this Agreement as a result of such Event of Default;
(b) Following an Event of Default by Seller under this Agreement, Anaheim may require Seller or Lender to provide to Anaheim a report concerning:
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default;
(ii) Impediments to the cure plan or its development;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and
(iv) Any other information which Anaheim may reasonably require related to the development, implementation and timetable of the cure plan. (v) Seller or Lender must provide the report to Anaheim within ten (10) Business Days after Notice from Anaheim requesting the report.
Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; (c) Lender will have the right to cure an Event of Default on behalf of Seller, only if Lender sends a written notice to Anaheim before the end of any cure period indicating Lender’s intention to cure. Lender must remedy or cure the Event of Default within the cure period under this Agreement; provided, such cure period may be extended by no more than an additional one hundred eighty (180) days.
Notwithstanding the foregoing, i f possession of the Generating Facility is necessary to cure such Event of Default, Lender has commenced foreclosure proceedings within sixty ( 60) days after receipt of Notice of the Event of Default from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
proceedings, take possession of the Generating Facility, and cure such Event of Default, all of which shall not exceed one hundred eighty ( 180) days after Lender’s commencement of foreclosure.
(d) Lender will have the right to receive prior written notice before any termination of this Agreement which does not arise out of an Event of Default; (e) No material amendment to this Agreement shall be valid unless Seller has obtained prior written consent for such amendment from Lender, which consent by Lender will not be unreasonably withheld, delayed or conditioned; (f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), Lender must assume all of Seller’s obligations arising under this Agree ment and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Anaheim and Lender as set forth in the Collateral Assignment Agreement); provided that , Lender will have no personal liability for any monetary obliga tions of Seller under this Agreement which are due and owing to Anaheim as of the assumption date; provided, however, that before such assumption, if Anaheim advises Lender that Anaheim will require that Lender cure (or cause to be cured) any Event of Defa ult existing as of the possession date in order to avoid the exercise by Anaheim (in its sole discretion) of Anaheim’s right to terminate this Agreement with respect to such Event of Default, then Lender at its option, and in its sole discretion, may elect to either:
(i) Cause such Event of Default to be cured, or
(ii) Not assume this Agreement, in which case this Agreement terminates unimpeded either by operation of law or the terms of this Agreement, as applicable;
(g) If Lender elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender (for example, a foreclosure sale where a third party is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer.
Such sale or transfer may be made only to an entity with financial qualifications and Operating experience equivalent to or better than that of Seller as of the Effective Date; and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
Anaheim or Lender, Anaheim and Lender (or its designee or representative) shall promptly enter into a new agreement with Anaheim having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement. Ne ither Lender (or its designee or representative) nor Anaheim shall have any personal liability to the other for any amounts owing under the original Agreement that was rejected in Bankruptcy or otherwise terminated in connection with Seller’s Bankruptcy, and neither Anaheim nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
10.06 Abandonment.
Seller may not relinquish its possession and control of the Generating Facility without the prior written consent of Anaheim except under circumstances provided for in Sections 10.04 and 10.05.
For purposes of this Section 10.06, Seller will have been deemed to relinquish possession of the Generating Facility if Seller has ceased work on the Generating Facility and the Generating Facility has ceased production and delivery of the Product for a consecutive ninety (90) day period and such cessation is not a result of an event of Force Majeure.
10.07 Governing Law.
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.
10.08 Notices.
All notices, requests, invoices, statements or payments must be made as specified in Exhibit C.
Notices (other than Forecasts, scheduling requests, invoices and curtailments ordered by the CAISO or Transmission Provider ) must, unless otherwise specified herein, be in writing and may be delivered by hand delivery, first class United States mail, overnight courier service or facsimile. Forecasts, scheduling requests, curtailment orders, Payment Invoices and Payment Statements may be delivered by email.
Notice provided in accordance with this Section 10.08 will be deemed given as follows:
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
(a) Notice by facsimile or hand delivery will be deemed given at the close of business on the day actually received, if received during business hours on a Business Day, and otherwise will be deemed given at the close of business on the next Business Day;
(b) Notice by overnight United States mail or courier service will be deemed given on the next Business Day after such Notice was sent out; (c) Notice by first class United States mail will be deemed given two (2) Business Days after the postmarked date;
(d) Notice of curtailment will be deemed given on the date and time it is transmitted by either Party and will be effective immediately.
Notices will be effective on the date deemed given, unless a different date for the Notice to go into effect is stated in another section of this Agreement.
A Party may change its designated representatives, addresses and other contact information by providing Notice of same in accordance herewith.
10.09 General.
(a) This Agreement constitutes the entire agreement between the Parties relating to its subject matter. In the event the terms of this Agreement (excluding the Exhibits) or the Exhibits conflict, the terms of the Agreement (excluding the Exhibits) shall govern.
(b) This Agreement will be considered for all purposes as prepared through the joint efforts of the Parties and may not be construed against one Party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.
(c) Except to the extent provided for herein, no amendment or modification to this Agreement will be enforceable unless reduced to a writing signed by all Parties.
Notwithstanding the foregoing, Exhibit D may be amended from time to time; provided the Parties mutually agree in writing through each Party's designated representative. Such amendment shall be considered an element of administration of the Agreement and shall be deemed a change or an amendment of this Agreement not requiring the further consent of either Party, except as set forth herein. In the case of Buyer, any such amendment will require the approval as to form of the Anaheim City Attorney Office; this amendment shall be incorporated into the Agreement.
(d) This Agreement does not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement).
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
(e) Waiver by a Party of any default by the other Party may not be construed as a waiver of any other default.
(f) The term “including” when used in this Agreement is by way of example only and may not be considered in any way to be in limitation. (g) The word “or” when used in this Agreement includes the meaning “and/or” unless the context unambiguously dictates otherwise.
(h) The headings used in this Agreement are for convenience and reference purposes only. Words having well-known technical or industry meanings have these meanings unless otherwise specifically defined in this Agreement. (i) Where days are not specifically designated as Business Days, they will be considered as days.
(j) This Agreement is binding on each Party’s successors and permitted assigns. (k) No provision of this Agreement is intended to contradict or supersede any applicable agreement covering transmission, distribution, metering, scheduling or interconnection. In the event of an apparent contradiction between this Agreement and any such agreement, the applicable agreement controls. (l) Whenever this Agreement specifically refers to any law, code section, regulation, tariff, government department or agency, regional reliability council, Transmission Provider, or credit rating agency, the Parties hereby agree that the reference also refers to any successor to such law, tariff or organization.
(m) The Parties acknowledge and agree that this Agreement and the transactions contemplated by this Agreement constitute a “forward contract” within the meaning of the Bankruptcy Code and that Anaheim and Seller are each “forward contract merchants” within the meaning of the Bankruptcy Code. (n) This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Copies of this Agreement and of signature pages exchanged by facsimile transmission, Portable Document Format (i.e., PDF), or by other electronic means may be used in lieu of the original Agreement for all purposes; provided however , original (wet) signatures are required for the execution and delivery of the originals and any amendments of this Agreement, as applicable. (o) Each Party shall act in good faith in its performance under this Agreement. (p) All dollar amounts set forth in this Agreement are in U.S. dollars.
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
10.10 California Public Records Act.
(a) Seller acknowledges that the City of Anaheim, as a California municipal corporation, is subject to the disclosure requirements of the California Public Records Act, Cal. Govt. Code §§ 6250 et. seq. (“CPRA”) and the Ralph M.
Brown Act, Cal. Govt. Code §§ 54950 et. seq. (“Brown Act”). (b) Terms and Conditions of this Agreement.
Except as otherwise required by Applicable Law, neither Party shall disclose Confidential Information to a third party, other than:
(i) To such Party’s employees, contractors, Lenders, counsel, accountants, advisors or investors, and in the case of Anaheim, its elected or appointed officials, in each case who have a need to know such information and have agreed to keep such terms confidential; (ii) To potential Lenders and investors with the consent of Anaheim, which consent will not be unreasonably withheld, conditioned or delayed; provided, disclosure:
(1) of cash flow and other financial projections to any potential Lender or investor in connection with a potential loan or tax equity investment; or
(2) of Confidential Information to potential Lenders or investors with whom Seller has negotiated (but not necessarily executed) a term sheet or other similar written mutual understanding, does not require Anaheim’s consent, and provided further that, in each case such potential Lender or investor has a need to know this information and has agreed to keep such terms confidential; (iii) As required by the CPRA and the Brown Act, or as otherwise required by law, Anaheim may, without violating this Agreement or having any liability whatsoever under this Agreement or otherwise for any claims or causes of action whatsoever resulting from or arising out such disclosure to a third party any Confidential Information, disclose matters that are made confidential by this Agreement to governmental officials or the public as required by any law, regulation, order, rule, order, ruling or other requirement of Applicable Law. Notwithstanding the foregoing, if Anaheim receives a request for disclosure of Confidential Information, Anaheim shall give Seller prompt written notice at the address designated herein prior to any disclosure of Confidential Information. Anaheim will disclose only such information as is legally required ; provided, however, Anaheim shall not be obligated to incur any cost or expense in preventing or limiting such disclosure.
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
(iv) To the CAISO or as otherwise may reasonably be required in order to participate in any auction, market or other process pertaining to the allocation of priorities or rights related to the transmission of Product sold or to be sold to Anaheim hereunder;
(v) In order to comply with any Applicable Law or any exchange, control area or CAISO rule, or order issued by a court or entity with competent jurisdiction over the Party making a disclosure of Confidential Information, other than to those entities set forth in Section 10.10(b)(vi); (vi) In order to comply with any applicable regulation, rule, or order of the CEC, FERC, any court, administrative agency, legislative body or other tribunal, or any mandatory discovery or data request of a party to any proceeding pending before any of the foregoing;
(vii) To any governmental body, the CAISO or any local control area or regional authority having jurisdiction in order to support Anaheim’s resource adequacy requirement showings, if applicable; provided, Anaheim shall, to the extent reasonable, use reasonable efforts to limit the ability of any such applicable governmental body, CAISO, local control area or regional authority to further disclose such information; (viii) As may reasonably be required to participate in the WREGIS or other process recognized under Applicable Laws for the registration, transfer or ownership of Green Attributes associated with the Generating Facility;
(ix) To representatives of a Party’s credit ratings agencies:
(1) Who have a need to review the terms and conditions of this Agreement for the purpose of assisting the Party in evaluating this Agreement for credit rating purposes and have agreed to keep this information confidential; or
(2) With respect to the potential impact of this Agreement on the Party’s financial reporting obligations;
(x) In connection with discovery requests or orders pertaining to the non - public terms of this Agreement as referenced in Sections 10.10(b)(v) and 10.10(b)(vi) (“Disclosure Order”) each Party shall, to the extent practicable, use reasonable efforts to:
(1) Notify the other Party before disclosing the Confidential Information; and
(2) Prevent or limit such disclosure, except that the Receiving Party shall not be obligated to incur any cost or expense:
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
After using such reasonable efforts, the Receiving Party will not be:
(3) Prohibited from complying with a Disclosure Order; or (4) Liable to the other Party for monetary or other damages incurred in connection with the disclosure of the Confidential
Information.
Except as provided in the preceding sentence, the Parties are entitled to all remedies available at law or in equity to enforce, or seek relief in connection with this confidentiality obligation.
10.11 Insurance.
(a) Starting on the Effective Date and throughout the Term of this Agreement and for such additional periods as may be specified below, or for such alternate periods as specifically set forth below, Seller or Seller’s contractor shall, at its own expense, provide and maintain in effect the insurance policies and minimum limits of coverage specified below, and such additional coverage as may be required by applicable law, with insurance companies which are admitted to write business in the state in which the services are to be performed and which have an A.M. Best’s Insurance Rating of not less than A -:VII. The minimum insurance requirements specified herein do not in any way limit or relieve Seller of any obligation assumed elsewhere in this Agreement, including, but not limited to, Seller’s defense and indemnity obligations. (i) Workers’ Compensation Insurance with the statutory limits required by the state having jurisdiction over Seller’s employees;
(ii) Employer’s Liability Insurance with limits of not less than:
(1) Bodily injury by accident – One Million dollars ($1,000,000) each accident
(2) Bodily injury by disease – One Million dollars ($1,000,000) policy limit
(3) Bodily injury by disease – One Million dollars ($1,000,000) each employee
(iii) Commercial General Liability Insurance , which, except with the prior written consent of Anaheim and subject to subsections (1) and (2) below, shall be written on an “occurrence,” not a “claims -made” basis, covering all operations by or on behalf of Seller arising out of or connected with this Agreement, including coverage for bodily injury, broad form property damage, personal and advertising injury, products/completed operations, and contractual liability. Such City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
insurance shall bear a combined single limit per occurrence and annual aggregate of not less than one million dollars ($1,000,000), exclusive of defense costs, for all coverages. Such insurance shall contain standard cross-liability and severability of in terest provisions. Such insurance may, with Anaheim’s prior written approval, be subject to a deductible or self-insured retention not to exceed $50,000 per occurrence. Should Seller elect, with Anaheim’s prior approval, to carry/utilize a self - insured retention on this line of coverage, then as respects the additional insureds set forth in Section 10.11(b), below, such self -insurance shall operate in such a manner that such additional insureds shall have the same rights, and the self -insurance program shall have the same obligations to such additional insureds, as such additional insureds would have had should the Seller have met this requirement by securing and maintaining primary commercial insurance, written on a first-dollar basis, on a coverage form at least equal to the most current standard ISO coverage form (as of the date of execution of this Agreement) applicable to commercial general liability coverage.
If Seller elects, with Anaheim’s written concurrence at Anaheim’s sole discretion, to use a “claims made” form of Commercial General Liability Insurance, then the following additional requirements apply:
(1) The retroactive date of the policy must be prior to the Effective Date; and
(2) Either the coverage must be maintained for a period of not less than five (5) years after the Agreement terminates, or the policy must provide for a supplemental extended reporting period of not less than five (5) years after the Agreement terminates. (iv) Commercial Automobile Liability Insurance covering bodily injury and property damage with a combined single limit of not less than One Million dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired automobiles in the performance of the Agreement.
(v) Umbrella/Excess Liability Insurance, written on an “occurrence,” not a “claims-made” basis, providing coverage excess of the underlying Employer’s Liability, Commercial General Liability, and Commercial Automobile Liability insurance, on terms at least as broad as the underlying coverage, w ith limits of not less than Ten Million Dollars ($10,000,000) per occurrence and in the annual aggregate. The insurance requirements of this Section 10.11 can be provided by any combination of Seller’s primary and excess liability policies.
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
(vi) All-Risk Property Insurance. Seller shall purchase and maintain All - Risk Property Insurance in an amount not less than the replacement cost of the Generating Facility to protect against loss of, damage to, or destruction of the Generating Facility, and including expediting expense coverage. Such Property Insurance shall also provide for Boiler and Machinery Coverage (or, at Seller’s option, the required Boiler and Machinery Coverage may be written as a stand -alone coverage with a joint loss adjustment agreement with the Property Ins urance policy/insurer). Such Insurance shall contain a waiver of subrogation in favor of Anaheim.
(b) The Commercial General Liability Insurance required above shall apply as primary insurance to, without a right of contribution from, any other insurance or self -insurance maintained by or afforded to Anaheim and its respective officers, officials, agents, and employees, regardless of any conflicting provision in Seller's policies to the contrary. To the extent permitted by law, Seller and its insurers shall be required to waive all rights of recovery from or subrogation against Anaheim and its respective o fficers, officials, agents, employees and insurers. The Commercial General Liability and Umbrella/Excess Liability insurance required above shall name, by endorsement (or by blanket policy language, reasonably acceptable to Anaheim, extending additional i nsured status to whomever the insured agrees by written contract), Anaheim and its respective officers, officials, agents and employees, as additional insureds for liability arising out of Seller’s (i) construction, ownership or Operation of the Generating Facility, and (ii) acts or omissions arising out of or in connection this Agreement. (c) At the time this Agreement is executed, or within a reasonable time thereafter, and within a reasonable time after coverage is renewed or replaced, Seller shall furnish to Anaheim certificates of insurance evidencing the coverage required above, written on forms and with deductibles reasonably acceptable to Anaheim. All deductibles, co-insurance and self-insured retentions applicable to the insurance above shall be paid by Seller. All certificates of insurance shall note that the insurers issuing coverage shall endeavor to provide Anaheim with at least thirty (30) days’ prior written notice in the event of cancellation of coverage. Anaheim’s receipt of certificates that do not comply with the requirements stated herein, or Seller’s failure to provide cert ificates, shall not limit or relieve Seller of the duties and responsibility of maintaining insurance in compliance with the requirements in this Section 10.11 and shall not constitute a waiver of any of the requirements in this Section 10.11. (d) If Seller fails to comply with any of the provisions of this Section 10.11, Seller, among other things and without restricting Anaheim’s remedies under the law or otherwise, shall, at its own cost and expense, act as an insurer and provide insurance in accordance with the terms and conditions above. With respect to the required Commercial General Liability, Umbrella/Excess Liability and City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
Commercial Automobile Liability insurance, Seller shall provide a current, full and complete defense to Anaheim and its respective officers, elected and appointed officials, agents, employees, assigns, and successors in interest, in response to a third party claim in the same manner that an insurer would have, had the insurance been maintained in accordance with the terms and conditions set forth above.
10.12 Nondedication.
Notwithstanding any other provisions of this Agreement, neither Party dedicates any of the rights that are or may be derived from this Agreement or any part of its facilities involved in the performance of this Agreement to the public or to the service provided under this Agreement, and this service shall cease upon termination of this Agreement.
10.13 Mobile Sierra.
Absent the agreement of all Parties to the proposed change, the standard of review for changes to any rate, charge, classification, term or condition of this Agreement, whether proposed by a Party (to the extent that any waiver in subsection (b) below is unenforceable or ineffective as to such Party), a non -party or FERC acting sua sponte, shall be the “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. S ierra Pacific Power Co. , 350 U.S. 348 (1956) , and clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish , 554 U.S. 527 (2008) (the "Mobile Sierra" doctrine).
Notwithstanding any provision of Agreement, and absent the prior written agreement of the Parties, each Party, to the fullest extent permitted by Applicable Laws, for itself and its respective successors and assigns, hereby also expressly and irrevocably waives any rights it can or may have, now or in the future, whether under Sections 205, 206, or 306 of the Federal Power Act or otherwise, to seek to obtain from FERC by any means, directly or indirectly (through complaint, investigation, supporting a third party seeking to obtain or otherwise), and each hereby covenants and agrees not at any time to seek to so obtain, an order from FERC changing any Section of this Agreement specifying any rate or other material economic terms and conditions agreed to by the Parties.
10.14 Simple Interest Payments.
Except as specifically provided in this Agreement, any outstanding and past due amounts owing and unpaid by either Party under the terms of this Agreement will be eligible to receive a Simple Interest Payment calculated using the Interest Rate for the number of days between the date due and the date paid.
10.15 Payments.
City of Anaheim
[Energy Development & Construction Corp.]
Article Ten Miscellaneous
Payments to be made under this Agreement must be made by wire transfer or through the Automated Clearing House (ACH).
10.16 Seller Ownership and Control of Generating Facility.
Seller agrees, that, in accordance with FERC Order No. 697, upon request of Anaheim, Seller shall submit a letter of concurrence in support of any affirmative statement by Anaheim that the contractual arrangement set forth in this Agreement does not transf er “ownership or control of generation capacity” from Seller to Anaheim as the term “ownership or control of generation capacity” is used in 18 CFR Section 35.42. Seller also agrees that it will not, in filings, if any, made subject to FERC Order Nos. 652 and 697, claim that the contractual arrangement set forth in this Agreement conveys ownership or control of generation capacity from Seller to Anaheim.
10.17 Required Material.
Seller acknowledges and agrees that, notwithstanding anything to the contrary set forth herein, for purposes of this Agreement, any review, approval, request, or requirement of any Required Material shall mean only that such Required Material is acceptable to Anaheim solely for Anaheim’s internal purposes and benefit, and will not in any way be construed to mean that such Required Material is accurate, suitable for its intended purpose, in compliance with any Applicable Law or other requirement, or endorsed for the benefit of any other party, including Seller. Further, Seller acknowledges and agrees that Anaheim shall have no liability to Seller or any other third party under this Agreement with respect to any Required Material so reviewed, approved, requested or required by Anaheim or on Anaheim’s behalf.
*** End of ARTICLE TEN***
City of Anaheim
[Energy Development & Construction Corp.]
Article Eleven Change in Electric Market Design
ARTICLE ELEVEN. CHANGE IN ELECTRIC MARKET DESIGN
If a Change in CAISO Tariff renders this Agreement or any terms herein incapable of being performed or administered, then either Party, on Notice, may request the other Party to enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date.
Upon receipt of a Notice requesting negotiations, the Parties shall negotiate in good faith.
If the Parties are unable, within ninety (90) days after the sending of the Notice requesting negotiations, either to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then either Party may submit issues pertaining to changes to this Agreement to mediation as provided in Article Twelve.
A change in cost will not in itself be deemed to render this Agreement or any terms therein incapable of being performed or administered, or constitute, or form the basis of, a Force Majeure event.
*** End of ARTICLE ELEVEN***
City of Anaheim
[Energy Development & Construction Corp.]
Article Twelve Mediation
ARTICLE TWELVE. MEDIATION
12.01 Dispute Resolution.
Other than requests for provisional relief under Section 12.04, any and all Disputes which the Parties have been unable to resolve by informal methods after undertaking a good faith effort to do so, must first be submitted to mediation under the procedures described in Section 12.02 below.
12.02 Mediation.
Either Party may initiate mediation by providing Notice to the other Party in accordance with Section 10.08 of a written request for mediation, setting forth a description of the Dispute and the relief requested.
The Parties will cooperate with one another in selecting the mediator (“Mediator”) from the panel of neutrals from any mutually acceptable Mediator, and in scheduling the time and place of the mediation.
Such selection and scheduling will be completed within forty -five (45) days after Notice of the request for mediation.
Unless otherwise agreed to by the Parties, the mediation will not be scheduled for a date that is greater than one hundred twenty (120) days from the date of Notice of the request for mediation.
The Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs (other than each Party’s individual attorneys’ fees and costs related to the Party’s participation in the mediation, which fees and costs will be borne by such Party).
All offers, promises, conduct and statements, whether oral or written, made in connection with or during the mediation by either of the Parties, their agents, representatives, employees, experts and attorneys (and in the case of Anaheim, elected and appoin ted officials), and by the Mediator or any of the Mediator’s agents, representatives and employees, will not be subject to discovery and will be confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other p roceeding between or involving the Parties, or either of them, provided, evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
12.03 Post Mediation.
If the Parties are unable to resolve their Dispute through mediation, each shall have all rights available to it at law or in equity.
City of Anaheim
[Energy Development & Construction Corp.]
Article Twelve Mediation
12.04 Provisional Relief.
The Parties acknowledge and agree that irreparable damage would occur if certain provisions of this Agreement are not performed in accordance with the terms of this Agreement, that money damages would not be a sufficient remedy for any breach of these provisions of this Agreement, and that the Parties shall be entitled, without the requirement of posting a bond or other security, to seek a preliminary injunction, temporary restraining order, or other provisional relief as a remedy for a breach of Section 2.05(b), 3.01, 3.07, or 10.10 of this Agreement in any court of competent jurisdiction.
Such a request for provisional relief does not waive a Party’s right to seek other remedies for the breach of the provisions specified above in accordance with Section 12.01, notwithstanding any prohibition against claim-splitting or other similar doctrine. The other remedies that may be sought include specific performance and injunctive or other equitable relief, plus any other remedy specified in this Agreement for the breach of the provision, or if the Agreement does not specify a remedy for the breach, all other remedies available at law or equity to the Parties for the breach. *** End of ARTICLE TWELVE ***
City of Anaheim
[Energy Development & Construction Corp.]
EXHIBITS
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
EXHIBIT A
Definitions
The following terms shall have the following meaning for purposes of this Agreement.
1. “Accepted Compliance Costs” has the meaning set forth in Section 1.06.
2. “ACH” means Automated Clearing House and is the primary electronic funds transfer (EFT) system used by agencies to make payments.
3. “Affiliate” means, with respect to a Party, any entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with that Party.
4. “Agreement” has the meaning set forth in the Preamble.
5. “Anaheim” has the meaning set forth in the Preamble.
6. “Applicable Laws” means all constitutions, treaties, laws, ordinances, rules, regulations, interpretations, permits, judgments, decrees, injunctions, writs and orders of any Governmental Authority that apply to either or both of the Parties, the Generating Facility or the terms of this Agreement.
7. “Availability Incentive Payments” has the meaning set forth in the CAISO Tariff.
8. “Availability Standards” has the meaning set forth in the CAISO Tariff.
9. “Bankrupt” means with respect to any entity, such entity:
(a) Files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it (which involuntary Bankruptcy petition filed or commenced against it is not dismissed within sixty (60) days); (b) Makes an assignment or any general arrangement for the benefit of creditors; (c) Otherwise becomes bankrupt or insolvent (however evidenced); (d) Has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to such entity or any substantial portion of its property or assets; or
(e) Is generally unable to pay its debts as they fall due.
10. “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended, and any successor statute.
11. “Bid” has the meaning as set forth in the CAISO Tariff.
12. “Brown Act” has the meaning set forth in Section 10.10(a).
13. “Bucket One REC” means a REC in Portfolio Content Category 1, as defined in 399.16(b)(1) of the California Public Utilities Code, or elsewhere in the RPS Law, as applicable.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
14. “Business Day” means any day except a Saturday, Sunday, a Federal Reserve Bank holiday, or the Friday following Thanksgiving. A Business Day begins at 8:00 a.m. and end at 5:00 p.m. local time for the Party sending the Notice or payment or performing a specified action.
15. “Buyer” has the same meaning as set forth in the Preamble.
16. “CAISO” means the California Independent System Operator Corporation or successor entity.
17. “CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, i n real time, all electric energy produced by the Generating Facility less Station Use.
18. “CAISO Controlled Grid” means the system of transmission lines and associated facilities and entitlements of the participating transmission owners that have been placed under the CAISO’s operational control.
19. “CAISO Charges and Fees” means all CAISO charges and fees, including, but not limited to, the fees, debits, costs, penalties, sanctions, grid management charges, and interest that are assigned by the CAISO to the CAISO Scheduling Coordinator ID associated with Buyer’s provision of scheduling coordinator services to the Project , which shall only contain CAISO charges and fees specifically associated with the Project.
20. “CAISO Markets” has the meaning as set forth in the CAISO Tariff.
21. “CAISO Resource ID” means the number or name assigned by the CAISO to the CAISO Approved Meter.
22. “CAISO Revenues” means the benefits, credits and other profits directly assigned by the CAISO to the CAISO Scheduling Coordinator ID associated with Buyer’s provision of scheduling coordinator services to the Project , which shall only contain CAISO Revenues specifically associated with the Project.
23. “CAISO Statement” has the meaning set forth in Section 1.03(a) of Exhibit E.
24. “CAISO Tariff” means the California Independent System Operator Corporation Operating Agreement and Tariff, 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.
25. “CAISO True-Up(s)” means the CAISO’s recalculation of a CAISO Statement or any Settlement Statement related to the Project in accordance with the CAISO Tariff.
26. “Calculation Period” means each calendar month during the Term.
27. “California Public Records Act” or “CPRA” has the meaning set forth in Section
10.10(a).
28. “Capacity Attributes” means any and all current or future defined characteristics, City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
certificates, tags, credits, ancillary service attributes, or accounting constructs, howsoever entitled, including any accounting construct counted toward any resource adequacy requirements, attributed to or associated with the Generating Facility or any unit of generating capacity of the Generating Facility throughout the Term.
29. “CEC” means the California Energy Commission, or successor agency.
30. “CEC Certification” means certification by the CEC that the Generating Facility is an ERR for purposes of the RPS Law and that all electric energy produced by the Generating Facility qualifies as generation from an ERR for purposes of the RPS Law.
31. “CEC RPS Eligible Bucket One Energy” means energy used to generate a REC in Portfolio Content Category 1, as defined in 399.16(b)(1) of the California Public Utilities Code, or elsewhere in the RPS Law, as applicable.
32. “CEC Verification” means verification by the CEC based on ongoing reporting by Seller that the Generating Facility is an ERR for purposes of the RPS Law and that all electric energy produced by the Generating Facility qualifies as generation from an ERR for purposes of the RPS Law.
33. “CFR” means the Code of Federal Regulations, as may be amended from time to time.
34. “Change in CAISO Tariff” means that, other than changes for the Market Redesign and Technology Update that became effective on April 1, 2009, the CAISO Tariff has been changed and such change has a material adverse impact on either Party, or the CAISO has been dissolved or replaced and any successor to the CAISO operates under rules, protocols, procedures or standards that differ in a material respect from the CAISO Tariff, after the Effective Date.
35. “Claiming Party” has the meaning set forth in Section 5.02.
36. “Collateral Assignment Agreement” has the meaning set forth in Section 10.05.
37. “Compliance Actions” has the meaning set forth in Section 1.06.
38. “Compliance Expenditure Cap” has the meaning set forth in Section 1.06.
39. “Confidential Information” means, with respect to a Party hereto, all information or material which either (1) is marked or identified as “Confidential”, “Restricted”, or “Proprietary Information” or other similar marking or identification, or (2) the other Party (the “Receiving Party”) knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the disclosing party (the “Disclosing Party”). Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, furnished in connection with this Agreement by one Party or its Representatives to the other Party or to its Representatives, and specifically includes but is not limited to Anaheim's individually identifiable customer information and Anaheim's customer usage data and financial data. Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non -party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein. For this definition only, (1) “Representative” means as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or consultant of a Party or any of its subsidiaries or affiliates; and (2) the Party providing Confidential Information shall be the Disclosing Party and the Party receiving the Confidential Information from the Disclosing Party shall be the Receiving Party.
40. “Contract Capacity” means the electric energy generating capacity, set forth in Section 1.01(g).
41. “Control Area” means the electric power system (or combination of electric power systems) under the operational control of the CAISO or any other electric power system under the operational control of another organization vested with authority comparable to that of the CAISO.
42. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions, legal expenses and other similar third-party transaction costs and expenses reasonably incurred by that Party in entering into any new arrangement which replaces this Agreement.
43. “Credit Rating” means with respect to any entity, on the relevant date of determination, the respective ratings 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.
44. “day” means calendar day.
45. “Day-Ahead Market” has the meaning set forth in the CAISO Tariff.
46. “Defaulting Party” has the meaning set forth in Section 6.01.
47. “Delivery Point” means the point of delivery of Product to the CAISO-Controlled Grid, as specified in Section 1.01(e).
48. “Disclosing Party” has the meaning set forth in the definition of Confidential Information.
49. “Disclosure Order” has the meaning set forth in Section 10.10(x).
50. “Dispute” means any and all disputes, claims or controversies arising out of, relating to, concerning or pertaining to the terms of this Agreement, or to either Party’s performance or failure of performance under this Agreement.
51. “DLF” means a number that is a representation for all net electric energy losses or avoided losses associated with the transmission of electric energy through the electric system from the high voltage side of the Generating Facility’s substation bus bar to the interface with the CAISO Controlled Grid, also known as the distribution loss factor.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
52. “Early Termination Date” has the meaning set forth in Section 6.02.
53. “Effective Date” has the meaning set forth in the Preamble.
54. “Energy Communication Network” or “ECN” means the CAISO infrastructure network (data highway) used by all CAISO participants to exchange data to and from resources and CAISO.
55. “Energy Storage Products” has the meaning set forth in Section 3.22 (c).
56. “Equitable Defense” means any bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally, and with regard to equitable remedies, the discretion of the court before which proceedings to obtain equitable remedies may be pending.
57. “ERR” means an Eligible Renewable Energy Resource (“ERR”), as such term is defined in California Public Utilities Code Section 399.12.
58. “Event of Default” has the meaning set forth in Section 6.01.
59. “Event of Deficient Energy Deliveries” means any instance in which Seller fails to meet Seller’s Energy Delivery Obligation as determined in accordance with Section 3.06(a)(ii), which failure results in Seller’s obligation to pay the applicable Product Replacement Damage Amount.
60. “Expected Annual Net Energy Production” means the Generating Facility’s expected annual Qualified Amounts, as calculated in accordance with Section 1.01(h).
61. “Facility Repower” has the meaning set forth in Section 3.22.
62. “Facility Repower Period” means the period during which the Generating Facility Capacity is materially reduced in connection with the Facility Repower, which shall not exceed six (6) months.
63. “Federal Funds Effective Rate” means the annual interest rate posted opposite the caption “Federal Funds (effective)” as set forth in the weekly statistical release as H.15(519), or any successor publication, published by the Board of Governors of the Federal Reserve System.
64. “Federal Investment Tax Credit” means investment tax credit under Section 48 of the Internal Revenue Code as in effect from time -to-time throughout the Term or any successor or other provision providing for a federal tax credit determined by reference to capital investment in equipment used to produce renewable electric energy from solar energy resources for which Seller, as the owner of the Generating Fa cility, is eligible, if applicable due to a Facility Repower.
65. “Federal Production Tax Credit” means production tax credit under Section 45 of the Internal Revenue Code as in effect from time -to-time throughout the Term or any successor or other provision providing for a federal tax credit determined by reference to renewable electric energy produced from wind or other renewable energy resources for which Seller, as the owner of the Generating Facility, is eligible.
66. “Federal Tax Credit” means the Federal Production Tax Credit or the Federal City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
Investment Tax Credit.
67. “FERC” means the Federal Energy Regulatory Commission.
68. “Fitch” means Fitch Ratings Ltd. or its successor.
69. “Force Majeure” means any occurrence that:
(a) In whole or in part:
(i) Delays a Party’s performance under this Agreement;
(ii) Causes a Party to be unable to perform its obligations; or (iii) Prevents a Party from complying with or satisfying the conditions of this Agreement;
(b) Is not within the control of that Party; and
(c) The Party has been unable to overcome by the exercise of due diligence, including an act of God, flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobedience, terroris m, sabotage, strike or labor dispute, or actions or inactions of any Governmental Authority (including a change in Applicable Law but excluding Seller’s compliance obligations as set forth in Article Three), or curtailment or reduction in deliveries at the direction of a Transmission Provider or the CAISO (except as set forth below). (d) Notwithstanding the above, Force Majeure does not include:
i) The lack of wind, sun or other fuel source of an inherently intermittent nature;
ii) Reductions in generation from the Generating Facility resulting from Wind Turbine failures (unless otherwise caused by an event of Force Majeure), ordinary wear and tear, deferred maintenance or Operator error;
iii) Any increase of any kind in any cost;
iv) Delays in or inability of a Party to obtain financing or other economic hardship of any kind;
v) Seller’s ability to sell any energy at a price in excess of those provided in this Agreement; or
vi) Curtailment or reduction in deliveries at the direction of a Transmission Provider or the CAISO when the basis of the curtailment or reduction in deliveries ordered by a Transmission Provider or the CAISO is the failure of Seller to perform its obligations under Seller’s interconnection agreement or the CAISO Tariff.
70. “Forced Outage” has the meaning set forth in the CAISO Tariff.
71. “Forecast” means a forecast provided in accordance with Exhibit D of either:
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
(a) The sum of the continuous electrical output ratings for Wind Turbines (in MWs) in the Generating Facility that are operational; or
(b) The sum of electric energy (in MWh) expected to be generated by the Generating Facility.
72. “Forecasting” means the action of Seller in preparing and submitting the Forecasts to Anaheim in accordance with Exhibit D.
73. “Forward Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other.
(a) If the Non -Defaulting Party’s Costs and Losses exceed its Gains, then the Forward Settlement Amount shall be an amount owing to the Non -Defaulting Party.
(b) If the Non -Defaulting Party’s Gains exceed its Costs and Losses, then the Forward Settlement Amount shall be zero dollars ($0).
(c) The Forward Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages.
74. “GAAP” means account principles generally accepted in the United States of America.
75. “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement for the remaining Term of this Agreement, determined in a commercially reasonable manner.
(a) Factors used in determining the economic benefit to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non -Defaulting Party, including without limitation, quotation s (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, se ttlement prices for comparable transactions at liquid trading hubs (e.g., NYMEX), all of which should be calculated for the remaining Term of this Agreement, and includes the value of Green Attributes and, if applicable, Capacity Attributes and Resource Adequacy Benefits.
(b) Only if the Non -Defaulting Party is unable, after using commercially reasonable efforts, to obtain third party information to determine the gain of economic benefits, then the Non -Defaulting Party may use information available to it internally suitable for this purpose in accordance with prudent industry practices.
76. “Generating Facility” means Seller’s electric generating facility as more particularly described in Exhibit B, together with all materials, equipment systems, structures, features and improvements necessary to produce electric energy at the facility, excluding the Site, land rights and interests in land.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
77. “Generating Facility Capacity” means the Generating Facility’s total rated electric energy generating capacity determined by the total of the manufacturer’s nameplate ratings of all installed Wind Turbines, consistent with Prudent Electrical Practices and accepted industry standards, as indicated on the nameplates physically attached to the individual Wind Turbine generators.
78. “Generating Facility Power Curve” means a table used to estimate the Generating Facility’s Metered Amounts as a function of the recorded wind speed at the Site as described in Exhibit G.
79. “Generator Operator” means the entity that Operates the Generating Facility and performs the functions of supplying energy and interconnected operations services as described in the NERC Reliability Standards.
80. “Generator Operator Obligations” means the obligations of a Generator Operator as set forth in all applicable NERC Reliability Standards.
81. “Generator Owner” means an entity that owns the Generating Facility and has registered with NERC as the entity responsible for complying with those NERC Reliability Standards applicable to owners of generating units as set forth in the NERC Reliability Standards.
82. “Generator Owner Obligations” means the obligations of a Generator Owner as set forth in all applicable NERC Reliability Standards.
83. “Governmental Authority” means:
(a) Any federal, state, local, municipal or other government; (b) Any governmental, regulatory or administrative agency, commission, or other authority lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power; or
(c) Any court or governmental tribunal;
provided that, for purposes of this Agreement only, Anaheim shall not be considered to be a Governmental Authority.
84. “Governmental Charges” has the meaning as set forth in Section 9.02.
85. “Green Attributes” means any and all current or future credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, named, registered, created, measured, or allocated (a) that are any time recognized or deemed (or both) by Anaheim, applicable law, or any voluntary or mandatory program of any other Governmental Authority or other person and (b) that are attributable to (i) the generation from the Project, and its avoided emission of pollutants or its displacement of conventional or o ther types of energy generation or, (ii) if energy storage devices have been installed, to storage of energy or other services in connection with the energy storage devices. Green Attributes include but are not limited to Renewable Energy Credits, as well as:
(1) Any avoided emission of pollutants to the air, soil or water such as sulfur oxides City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
(SOx), nitrogen oxides (NO x), carbon monoxide (CO) and other pollutants , chemical compound, particulate matter, soot, or mercury; (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, pursuant to the United Nations Framework Convention on Climate Change (the “UNFCC”), the Kyoto Protocol to the UNFCCC, California’s greenhouse gas legislation (including RPS Law and California Assembly Bill 32 (Global Warming Solutions Act of 2006) and any regulations implemented pursuant to such acts, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere , including any compliance instruments accepted under the California Cap and Greenhouse Gas Emissions and Market- Based Compliance Mechanisms regulations of the California Air Resources Board or any successor regulations thereto) or any similar international, federal, state or local program or crediting “early action” with a view thereto, laws or regulations involving or administered by Clean Air Markets Division (the “CAMD”); and
(3) The reporting rights to these avoided emissions, such as Green Tag Reporting Rights.
Green Tag Reporting Rights are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s dis cretion, and include without limitation those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any other Applicable Laws or international or foreign emissions trading program. Green Tags are accumulated on a M Wh 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 Project,
ii) Federal Tax Credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the Project that are applicable to a state or federal income taxation obligation,
iii) Fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
iv) Emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits.
86. “Green Market Price” means the market price for energy at the Delivery Point (which for the purposes of this Agreement shall be the CAISO Locational Marginal Price in the Day Ahead Market) and Green Attributes from an ERR. Absent a market option for determining a Green Market Price, such price will be mutually established by selecting an agreeable proxy source for determining a Green Market Price.
87. “Indemnified Party” has the meaning set forth in Section 10.03(d).
88. “Indemnitor” has the meaning set forth in Section 10.03(d).
89. “Interconnection Point” means the location where the Generating Facility first interconnects with the existing electrical transmission or distribution system, as reported on the Generating Facility’s application for interconnection with the Transmission Provider’s electric system, as described in Section 1.01(e).
90. “Interest Rate” means, for any date:
(a) The per annum rate of interest equal to the “Prime Rate” published in The Wall Street Journal under “Money Rates” or such date (or if not published on such date on the most recent preceding day on which published); plus (b) Two percentage points (2%);
provided, in no event may the Interest Rate exceed the maximum interest rate permitted by Applicable Laws.
91. “kW” means a kilowatt of electric energy generating capacity.
92. “kWh” means a kilowatt-hour of electric energy.
93. “Lease” means one or more agreements whereby Seller leases the real property of the Site described in Section 1.01(b) from a third party, the term of which lease begins on or before the commencement of construction of the Generating Facility and extends at least through the last day of the Term.
94. “Lender” means any third-party institutions or entities, or successors in interest or assignees that provide(s) development, bridge, construction, permanent debt, tax equity, lease -back, back -levered or portfolio financing or refinancing for the Generating Facility to Seller.
95. “Letter(s) of Credit” means one or more irrevocable, nontransferable, standby letters of credit, substantially in the form of Exhibit H, or in such other form as agreed to by the Parties, provided by Seller from an issuer acceptable to Anaheim that is a U.S. commercial bank having a Credit Rating of at least (a) “A-” , or equivalent from at least City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
two of the three ratings agencies (i.e., S&P, Fitch, or 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.
96. “Letter of Credit Default” means with respect to a Letter of Credit, the occurrence of any of the following events:
(a) The issuer of the Letter of Credit fails to comply with or perform its obligations under such Letter of Credit;
(b) 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; (c) The Letter of Credit fails or ceases to be in full force and effect at any time; (d) Seller fails to provide an extended or replacement Letter of Credit within ten (10) Business Days before the Letter of Credit expires or terminates; or (e) 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.
97. “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 credit rating agencies (i.e. S&P and Fitch, or 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.
98. “Local Business Day” means a Business Day on which commercial banks are open for business in relation to any:
(a) Payment, in the place where the relevant account is located; and (b) Notice or other communication, in the location specified in the address for notice provided by the recipient, except for the Friday immediately following the U.S. Thanksgiving holiday or a Federal Reserve Bank holiday.
99. “Locational Marginal Price” has the meaning set forth in the CAISO Tariff. 100. “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of this Agreement for the remaining Term of this Agreement, determined in a commercially reasonable manner.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
(a) Factors used in determining economic loss to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non -Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlemen t prices for comparable transactions at liquid trading hubs (e.g., NYMEX), all of which should be calculated for the remaining Term of this Agreement and must include the value of Green Attributes and, if applicable, Capacity Attributes and Resource Adequa cy Benefits.
(b) Only if the Non -Defaulting Party is unable, after using commercially reasonable efforts, to obtain third party information to determine the loss of economic benefits, then the Non -Defaulting Party may use information available to it internally suitable for these purposes in accordance with prudent industry practices.
101. “Lost Output” means the reduction in Qualified Amounts over the relevant measurement period that the Generating Facility was available to produce and could reasonably have been expected to deliver, based upon the calculation method set forth in Exhibit G, but was not delivered due to a Lost Output Event. 102. “Lost Output Event” means any of the following occurrences which cause Seller to be unable to deliver energy:
(a) Force Majeure;
(b) An Event of Default where Anaheim is the Defaulting Party; (c) A curtailment or reduction of deliveries ordered or caused by the CAISO or the Transmission Provider .
103. “Lost Output Report” means the monthly report of Lost Output in the form of the worksheet from the Lost Output Workbook prepared in accordance with the procedures set forth in Section 3.20 and Exhibit G.
104. “Lost Output Workbook” has the meaning set forth in Exhibit G. 105. “Mediator” has the meaning set forth in Article Twelve. 106. “Metered Amounts” means the electric energy produced by the Generating Facility and expressed in kWh, as recorded by the CAISO Approved Meter(s), or Check Meter(s), as applicable.
107. “Monthly Cash Settlement Amount” has the meaning set forth in Exhibit E.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
108. “Moody’s” means Moody’s Investor Services, Inc.
109. “MW” means a megawatt (or 1,000 kilowatts) of electric energy generating capacity. 110. “MWh” means a megawatt-hour (or 1,000 kilowatt-hours) of electric energy. 111. “NERC” means the North American Electric Reliability Corporation, or any successor thereto.
112. “NERC Reliability Standards” means those reliability standards applicable to the Generating Facility, or to the Generator Owner or the Generator Operator with respect to the Generating Facility, that are adopted by NERC and approved by the applicable regulatory authorities and available at
https://www.nerc.com/pa/Stand/Pages/ReliabilityStandards.aspx, or any successor website thereto.
113. “NERC Standards Non -Compliance Penalties” means any and all monetary fines, penalties, damages, interest or assessments by the NERC, CAISO, WECC, a Governmental Authority or any entity acting at the direction of a Governmental Authority arising from or rel ating to a failure to perform the obligations of Generator Operator or Generator Owner as set forth in the NERC Reliability Standards. 114. “Non-Availability Charges” has the meaning set forth in the CAISO Tariff. 115. “Non-Defaulting Party” has the meaning set forth in Section 6.02. 116. “Notice” means notices, requests, statements or payments provided in accordance with Section 10.08 and Exhibit C.
117. “OMAR” means the Operational Metering Analysis and Reporting System operated and maintained by the CAISO as the repository of settlement quality meter data or its successor.
118. “Operate”, “Operates”, “Operated”, “Operating” or “Operation” means to provide (or the provision of) all the operation, engineering, purchasing, repair, supervision, training, inspection, testing, protection, use, management, improvement, replacement, refurbishment, retirement, and maintenance activities associated with operating the Generating Facility in accordance with Prudent Electrical Practices. 119. “Original Term” has the meaning set forth in Section 1.02(a). 120. “Outage” has the meaning set forth in the CAISO Tariff. 121. “Outage Schedule” has the meaning set forth in Section 3.14. 122. “Participating Intermittent Resource” means an intermittent resource generating facility that is certified, and remains certified, under PIRP as set forth in the CAISO City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
Tariff.
123. “Party” or “Parties” have the meaning set forth in the Preamble. 124. “Payment Invoices” are invoices issued by Seller during the Term detailing amounts owed by Anaheim to Seller or by Seller to Anaheim for energy deliveries, CAISO Revenues, CAISO Charges and Fees, and other charges and adjustments as may be owed by the Parties, in accordance with Exhibit E.
125. “Payment Statement” is a statement provided by Anaheim to Seller that lists the charges as detailed on the CAISO payment statements or invoices for the CAISO Scheduling Coordinator ID associated with Buyer’s provision of scheduling coordinator services to the Project.
126. “Performance Assurance” means collateral (in the amount of the Performance Assurance Amount set forth in Section 1.04) for Seller’s performance under this Agreement in the form of a Letter(s) of Credit.
127. “Performance Assurance Amount” means the collateral amount for Performance Assurance set forth in Section 1.04.
128. “Permits” means all applications, approvals, authorizations, consents, filings, licenses, orders, permits or similar requirements imposed by any Governmental Authority, or the CAISO, in order to develop, construct, Operate, maintain, improve, refurbish and retire the Generating Facility o r to Forecast or deliver the Product produced by the Generating Facility to Anaheim.
129. “PIRP,” “Participating Intermittent Resource Program,” or “Participating Intermittent Resources” have the meaning set forth in the CAISO Tariff. 130. “PNode” has the meaning set forth in the CAISO Tariff. 131. “Point of Title Transfer” means the Southern California Edison side of the manual Project disconnect switch at Seller’s portion of the Southern California Edison Company AR0548 Substation.
132. “Product” has the meaning set forth in Section 1.01(d). 133. “Product Price” means the price set forth in Section 1.03. 134. “Product Replacement Damage Amount” has the meaning set forth in Section 3.06(c)(i).
135. “Project” means the Generating Facility.
136. “Prudent Electrical Practices” means those practices, methods and acts that would be implemented and followed by prudent operators of electric energy generating facilities City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
in the Western United States, similar to the Generating Facility, during the relevant time period, which practices, methods and acts, in the exercise of prudent and responsible professional judgment in the light of the facts known at the time the decision was made, could reasonably have been expected to accomplish the desired result consistent with good business practices, reliability and safety. (a) Prudent Electrical Practices shall include, at a minimum, those professionally responsible practices, methods and acts described in the preceding sentence that comply with manufacturers’ warranties, restrictions in this Agreement, and the requirements of Governmental Authorities, WECC standards, the CAISO and Applicable Laws.
(b) Prudent Electrical Practices also includes taking reasonable steps to ensure that:
i) Equipment, materials, resources, and supplies, including spare parts inventories, are available to meet the Generating Facility’s needs; ii) Sufficient Operating personnel are available at all times and are adequately experienced and trained and licensed as necessary to Operate the Generating Facility properly and efficiently, and are capable of responding to reasonably foreseeable emergency co nditions at the Generating Facility and Emergencies whether caused by events on or off the Site;
iii) Preventive, routine, and non -routine maintenance and repairs are performed on a basis that ensures reliable, long term and safe Operation of the Generating Facility, and are performed by knowledgeable, trained, and experienced personnel utilizing proper eq uipment and tools;
iv) Appropriate monitoring and testing are performed to ensure equipment is functioning as designed;
v) Equipment is not Operated in a reckless manner, in violation of manufacturer’s guidelines or in a manner unsafe to workers, the general public, or the Transmission Provider’s electric system or contrary to environmental laws, permits or regulations or without regard to defined limitations such as, flood conditions, safety inspection requirements, operating voltage, current, volt ampere reactive (VAR) loading, frequency, rotational speed, polarity, synchronization, and control system limits; and
vi) Equipment and components are designed and manufactured to meet or exceed the standard of durability that is generally used for electric energy generating facilities operating in the Western United States and will function properly over the full range of am bient temperature and weather conditions reasonably expected to occur at the Site and under City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
both normal and emergency conditions.
137. “Public Utilities General Man ager” means the individual employed as the Public Utilities General Manager.
138. “Qualified Amounts” means the Metered Amounts, expressed in kWh, that qualify as renewable power under the requirements of the RPS Law, or which do not so qualify solely due to a change in RPS Law occurring after the Effective Date, which, notwithstanding Seller’s compliance with Sections 3.02 and 10.02(a) cannot be complied with by Seller on a commercially reasonable basis. 139. “Receiving Party” has the meaning set forth in the definition of Confidential Information.
140. “Renewable Energy Credit” or “REC” means a tradable environmental commodity that represent proof that one (1) megawatt -hour (MWh) of energy was generated from an eligible resource. These certificates can be sold and traded and the owner of the REC can claim to have purchased renewable energy. RECs are also sometimes known as renewable energy certificates and green tags.
141. “Required Material” means any permit, license, application, certification, design, specification, program, agreement, instrument, equipment, device, mechanism, or any other item in connection with the Generating Facility to be reviewed or approved by Anaheim or on Anaheim’s behalf, or requested or required of Seller by Anaheim or on Anaheim’s behalf, under this Agreement.
142. “Resource Adequacy Benefits” means the rights and privileges attached to the Generating Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and shall include any local, zonal or otherwise locational attributes associated with the Generating Facility. 143. “Resource Adequacy Rulings” means any resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, as such decisions, rulings, laws, rules or regulations may be amended or modified from time - to-time throughout the Term.
144. “Restricted Period” has the meaning set forth in Section 2.05(b). 145. “RPS Compliance” means, when used with respect to the Facility or any other facility at any time, that all Energy generated by such Facility or other facility, as applicable, at all times, shall, together with all of the associated Green Attributes, qualify as CEC RPS Eligible Bucket One Energy under the RPS Law and meet the requirements of Public Utilities Code Section 399.16(b)(1).
146. “RPS Law” means renewable energy programs and policies established and amended by California State Senate Bills 1078 (2002), X1-2 (2011), 350 (2015) and 100 (2018) and codified in California Public Utilities Code Sections 399.11 through 399.31 and City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time, and all related policies, regulations and guidelines, including the most -recent Renewables Portfolio Standard Eligibility guidebook issued by the CEC, as amended from time to time, or its successor document.
147. “S&P” means the Standard & Poor’s Rating Group.
148. “Schedule,” “Scheduled” or “Scheduling” means the action of Anaheim in submitting Bids to the CAISO and receiving all CAISO Markets results from the CAISO. 149. “Scheduling Coordinator” or “SC” means an entity certified by the CAISO for the purposes of undertaking the functions specified by CAISO Tariff Section 4.5, as amended by FERC from time-to-time.
150. “SEC” means the U.S. Securities and Exchange Commission. 151. “Security Interest” has the meaning set forth in Section 8.03. 152. “Seller” has the meaning set forth in the Preamble. 153. “Seller’s Energy Delivery Obligation” has the meaning set forth in Section 3.06(a). 154. “Settlement Interval” means any one of the six ten (10) minute time intervals beginning on any hour and ending on the next hour (e.g. 12:00 to 12:10, 12:10 to 12:20, etc.). 155. “Settlement Statement” has the meaning set forth in the CAISO Tariff. 156. “Simple Interest Payment” means a dollar amount calculated by multiplying the:
(a) Dollar amount on which the Simple Interest Payment is based; times (b) Federal Funds Effective Rate or Interest Rate, as applicable; times (c) The result of dividing the number of days in the calculation period by 360. 157. “Site” means the real property on which the Generating Facility is as further described in Section 1.01(b) and Exhibit B.
158. “Site Control” means that Seller shall:
(a) Own the Site;
(b) Be the lessee of the Site under a Lease;
(c) Be the holder of a right -of-way grant or similar instrument with respect to the Site; or
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
(d) Be the managing partner or other person or entity authorized to act in all matters relating to the control and Operation of the Site and the Generating Facility. 159. “Station Use” means:
(a) The electric energy produced by the Generating Facility that is used within the Generating Facility to power the lights, motors, control systems and other electrical loads that are necessary for Operation; and
(b) The electric energy produced by the Generating Facility that is consumed within the Generating Facility’s electric energy distribution system as losses. 160. “Supplemental Lost Output” has the meaning set forth in Section 3.20. 161. “Supplemental Lost Output Report” has the meaning set forth in Section 3.20. 162. “Telemetry System” means a system of electronic components that interconnects the CAISO and the Generating Facility in accordance with the CAISO’s applicable requirements as set forth in Section 3.07(d).
163. “Term” means the term of this Agreement as set forth in Section 1.02. 164. “Term Commencement Date” has the meaning set forth in Section 2.03. 165. “Term Year” means a twelve (12) month period beginning on the Term Commencement Date and each successive twelve (12) month period thereafter until the end of the Term.
166. “Termination Payment” means the sum of all amounts , including the Forward Settlement Amount, owed by the Defaulting Party to the Non -Defaulting Party under this Agreement, less any amounts owed by the Non-Defaulting Party to the Defaulting Party determined as of the Early Termination Date.
167. “Transmission Provider” means any entity or entities responsible for the interconnection of the Generating Facility with a Control Area or transmitting the Metered Amounts on behalf of Seller from the Generating Facility to the Delivery Point.
168. “WECC” means the Western Electricity Coordinating Council, the regional reliability council for the Western United States, Northwestern Mexico and Southwestern Canada.
169. “Wind Turbines” means the wind turbine generators installed on the Site as part of the Generating Facility including any replacements or substitutes therefore. 170. “WREGIS” has the meaning set forth in Section 3.01(c)(i). 171. “WREGIS Certificate” means a “WREGIS Certificate” as defined by WREGIS in the City of Anaheim
[Energy Development & Construction Corp.]
Exhibit A Definitions
WREGIS Operating Rules that meets the requirements of Section 399.16(b)(1) of the California Public Utilities Code.
172. “WREGIS Operating Rules” means the operating rules and requirements adopted by WREGIS, which are available at https://www.wecc.org/program-areas/wregis, or any successor website.
*** End of EXHIBIT A ***
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit B Generating Facility and Site Description
EXHIBIT B
Generating Facility and Site Description
1. Generating Facility Description.
Energy Development & Construction Corporation established a wind energy power plant in North Palm Springs, California in 1985 , which has a capacity of 11.7 MWs. It is a small renewable energy producer.
The plant site is located on Karen Avenue in North Palm Springs and is in close proximity to the Southern California Edison’s main Devers and Garnet substations. The project resides on private land totaling approximately 211.16 acres and connects to an Edi son controlled distribution line – Coachella 33 kV.
The basic power generation configuration for the 11.7 MW facility consists of twelve (12) wind energy conversion systems. Six (6) of the turbines are a Vestas V39 turbine built in 1994 and the other six (6) turbines are newer GE 1.5 MW units built in 2003 and 2004.
The older Vestas units are synchronous generators, whereas the GE turbines have SEG and GE convertors, allowing the turbines to produce reactive power support to keep the project at unity power factors.
Monitoring of the site’s meteorological data, breaker status, energy output and other electrical characteristics of the project are shared via a remote intelligent gateway (RIG) providing real time, secure communications over digital communications circuits between the Karen Avenue Wind Farm and California Independent System Operator (CAISO) via an ECN with AT&T.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit B Generating Facility and Site Description
2. Site Description.
LEGAL DESCRIPTION
The following legal description of each parcel represents a portion of land comprising the Karen Avenue Wind Farm.
The Karen Avenue Wind Farm contains land owned by Wind Energy Partnership, a California limited partnership (Parcels 1-9).
Each parcel reference is depicted on a parcel map attached to this exhibit.
PARCEL 1: 16.47 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
Parcel(s) 4 and Lettered Lots D & H of Parcel Map 11456, in the City of Palm Springs, County of Riverside, State of California, as shown by map on file in Book 55 Page(s) 27 and 28, of Parcel Maps, Records of Riverside County, California.
APN 668-280-021-5
PARCEL 2: 4.17 Acres The land referred to herein is situated in the State of California, County of Riverside, and described as follows:
The North one-half of the Northeast one -quarter of the Southwest one -quarter of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian, Excepting the North
55.00 feet, as conveyed to the County of Riverside by deed dated August 28, 1963.
Assessor's Parcel Numbers(s): 666-120-002-9
PARCEL 3: 18.33 Acres The land referred to herein is situated in the State of California, County of Riverside, and described as follows:
The North half of the Northeast Quarter of the Northwest Quarter of the Southwest Quarter of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian, Excepting therefrom the North 55 feet thereof.
Assessor's Parcel Numbers(s): 666-120-007-4
PARCEL 4: 13.75 Acres The land referred to herein is situated in an unincorporated area known as North Palm Springs, the County of Riverside, State of California, and is described as follows:
The North half of the Northwest quarter of the Northwest quarter of the Southeast quarter and the South half of the North half of the Northwest quarter of the Southeast quarter of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian; Excepting therefrom the North 55 feet thereof; Also Excepting therefrom the West 30 feet thereof.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit B Generating Facility and Site Description
Assessor's Parcel Numbers(s): 666-140-022
PARCEL 5: 39.22 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
M/L IN POR PAR 1 PM 134/096 PM 20293 N2 SW4 Sec. 10 T.3.S. R.4.E.
Parcel # (APN): 666-120-012
PARCEL 6: 39.22 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
M/L IN POR PAR 1 PM 134/096 PM 20293 S2 SW4 Sec. 10 T.3.S. R.4.E.
Parcel # (APN): 666-130-007
PARCEL 7: 40 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
IN POR SW 1/4 OF SEC 10 T3S R4E FOR TOTAL DESCRIPTION SEE ASSESSORS MAPS S2 SW4 Sec. 10 T.3.S. R.4.E.
Parcel # (APN): 666-130-006
PARCEL 8: 20.00 Acres The land referred to herein is situated in the County of Riverside, State of California, and is described as follows:
The North 1/2 of the Southwest 1/4 of the Southeast 1/4 of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian.
Assessor’s Parcel Number(s): 666-150-001-1
PARCEL 9: 20.00 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs and described as follows:
The South half of the Southwest quarter of the Southeast quarter, in Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian. Excepting therefrom the South 44 feet thereof for road purposes.
APN: 666-150-002-2
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit B Generating Facility and Site Description
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit B Generating Facility and Site Description
EXHIBIT B-2
Single-Line Diagram of the CAISO-Controlled Grid Interconnection
*** End of EXHIBIT B ***
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit C Notice List
EXHIBIT C
Notice List
ENERGY DEVELOPMENT &
CONSTRUCTION CORP.
(“Seller”)
CITY OF ANAHEIM (“Anaheim”)
All Notices are deemed provided in accordance
with Section 10.08 if made to the address and
facsimile numbers provided below:
Unless otherwise specified, all Notices are
deemed provided in accordance with
Section 10.08 if made to the Agreement Sponsor
at the address or facsimile number provided
below:
Agreement Sponsor:
Attn: Bradford W. Adams
Street: 707 Esplanade #C
City: Redondo Beach, California 90277
Phone: (310) 316-7337 (Corp. Office)
Facsimile: (310) 316-7013 (Corp. Fax)
Agreement Sponsor:
Attn: Integrated Resources Manager
Street: 201 S. Anaheim Blvd., Suite 802
City: Anaheim, California 92805
Phone: (714) 765-4923
Facsimile: (714) 765-4692
Reference Numbers:
Duns: 022163988
Federal Tax ID Number: 33-0029051
Reference Numbers:
Duns: 801019282
Federal Tax ID Number: 95-6000666
Contract Administration:
Attn: Bradford W. Adams
Phone: (310) 316-7337 (Corp. Office)
(760) 251-1907 (Facility Office)
Facsimile: (310) 316-7013 (Corp. Fax)
Contract Administration:
Attn: Principal Integrated Resources
Planner
Phone: (714) 765-4160
Facsimile: (714) 765-4692
Email: [email protected];
[email protected];
[email protected]
Forecasting:
Attn: Bradford W. Adams
Phone: (760) 251-1907 (Facility Office)
Facsimile: (760) 251-2948 (Facility Fax)
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit C Notice List
ENERGY DEVELOPMENT &
CONSTRUCTION CORP.
(“Seller”)
CITY OF ANAHEIM (“Anaheim”)
Day-Ahead Operations:
Phone: (760) 251-1907 (Facility Office)
(310) 316-7337 (Corp. Office)
Email: [email protected];
[email protected]
Day-Ahead Operations:
Scheduling Desk.
Phone: (714) 765-4472, (714) 765-5495, or
(714) 765-5177
Fax: (714) 765-4692
E-mail: [email protected];
[email protected];
[email protected];
[email protected]
Real-Time Forecasting:
Phone: (760) 251-1907 (Facility Office)
(213) 507-2274 (Cell)
(909) 289-5112 (Cell)
(310) 316-7337 (Corp. Office)
Email: [email protected];
[email protected]
Real-Time Operations:
Operations Desk.
Phone: (714) 765-5109 or (760) 316-4314
E-mail: [email protected];
[email protected];
[email protected]
Payment Statements:
Attn: Bradford W. Adams
Phone: (310) 316-7337 (Corp. Office)
Facsimile: (310) 316-7013 (Corp. Fax)
E-mail: [email protected]
Payment Statements:
Attn: Mike Pham
Phone: (714) 765-5279
Facsimile: (714) 765-4127
E-mail: [email protected];
[email protected];
[email protected]
Please send invoices to:
[email protected]
Wire Transfer:
BNK: Citibank NA
399 Park Avenue,
New York, NY 10022
ABA: 021000089
ACCT: 4055-3953
Name: Charles Schwab Co. Inc
Ref: For Further Credit To Energy
Development & Construction Corp.
#9878-0548
Wire Transfer:
BNK: Wells Fargo Bank, N.A.
ABA: 121-000248
Credit to City of Anaheim
ACCT: 4100055599
Ref: Anaheim Public Utilities
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit C Notice List
ENERGY DEVELOPMENT &
CONSTRUCTION CORP.
(“Seller”)
CITY OF ANAHEIM (“Anaheim”)
Credit and Collections:
Attn: Bradford W. Adams
Phone: (310) 316-7337 (Corp. Office)
Facsimile: (310) 316-7013 (Corp. Fax)
E-mail: [email protected]
Manager of Credit and Collateral:
Attn: Mei Pan
Phone: (714) 765-4132
Email: [email protected];
[email protected]
With additional Notices of an Event of
Default or Potential Event of Default to:
Attn: William W. Adams
Phone: (310) 316-7337 (Corp. Office)
Facsimile: (310) 316-7013 (Corp. Fax)
E-mail: [email protected]
With additional Notices of an Event of
Default or Potential Event of Default to:
City of Anaheim
Attn: City Clerk
200 S. Anaheim Blvd., 2nd Floor
Anaheim, CA 92805
Phone: (714) 765-5166
Facsimile: (714) 765-4105
AND
City of Anaheim
Attn: City Attorney
200 S. Anaheim Blvd., 3rd Floor
Anaheim, CA 92805
Phone: (714) 765-5169
Facsimile: (714) 765-5123
*** End of EXHIBIT C **
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit D Forecasting and Scheduling Requirements and Procedures
EXHIBIT D
Forecasting and Scheduling Requirements and Procedures
1. Introduction.
The Parties shall abide by the Forecasting and Scheduling requirements and procedures described below and shall agree upon reasonable changes to these requirements and procedures from time-to-time, as necessary to:
(a) Comply with CAISO Tariff and any changes;
(b) Accommodate changes to their respective generation technology and organizational structure;
(c) Address changes in the operating and Scheduling procedures of both Anaheim and the CAISO, including but not limited to, Forecast and Outage submissions; and
(d) Minimize deviation charges and other CAISO Charges and Fees.
2. Seller’s Forecasting Requirements.
Seller must meet all of the following requirements for Forecasting as specified below. (a) Seller, or Seller’s designee, shall provide Anaheim with all Forecasts via email or other acceptable electronic means, with the exception of 7(a) of this section below.
(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.
3. Availability Standards.
(a) In the event that the Generating Facility is subject to the Availability Standards as set forth in the CAISO Tariff, Anaheim shall make commercially reasonable efforts to mitigate the application of the Availability Standards on behalf of the Seller to the extent possible. In any event, Seller shall be responsible for paying any charges assessed by the CAISO for failure of the Generating Facility to achieve the Availability Standards as set forth in the CAISO Tariff. Seller shall also be entitled to any benefits established in the CAISO Tariff associated with performance of the Generating Facility that exceeds the Availability Standards established by the CAISO.
4. Monthly Planned Operating Schedule.
(a) Unless otherwise agreed to by the Parties, no later than fifteen (15) days before the beginning of each month, Seller or Seller’s designee shall provide, or cause to be provided to Anaheim, a non -binding Forecast of the expected average City of Anaheim
[Energy Development & Construction Corp.]
Exhibit D Forecasting and Scheduling Requirements and Procedures
deliveries of Product from the Generating Facility during each five (5) minute interval of each day for the following month.
5. Daily Planned Operating Schedule.
(a) Seller may at its option request that Anaheim schedule Product from the Generating Facility in the CAISO Day -Ahead Market. If Seller elects this option, then by 5:30 AM Pacific Prevailing Time in accordance with the WECC Pre-Scheduling Calendar, each Seller or each 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 as shown in Figure 2. Daily Planned Operating Schedule. A Planned Operating Schedule provided a day prior to any no n-Business Day(s) shall include forecasts for the number of pre -scheduling days based on the WECC Pre-Scheduling Calendar.
6. Planned Operating Schedule.
(a) Unless otherwise agreed to by the Parties, at least 15 minutes prior to the CAISO scheduling deadline as designated in the CAISO Tariff , Seller or Seller’s designee shall provide, or cause to be provided to Anaheim , a non - binding Forecast of each operating hour of the expected deliveries of energy from the Generating Facility.
7. Scheduled Outages.
(a) Seller shall submit to the CAISO all Outage Schedules in accordance with current CAISO Tariff:
(b) All Outage Schedules will be submitted to the CAISO through the Scheduling and Logging for ISO of California (SLIC) system, or successor outage management system, by Seller, or Seller’s agent, in accordance with the current CAISO Tariff.
8. Requested Outage
Any Outage (other than a Forced Outage) not identified in an Outage Schedule is considered to be “Requested Outage” and shall be submitted by the Seller, or Seller’s agent, to the CAISO through the Scheduling and Logging for the ISO of California (SLIC), or successor outage management system.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit D Forecasting and Scheduling Requirements and Procedures
Figure 4. Requested Outage Information1
9. Forced Outages
Seller, or Seller’s agent, shall notify the CAISO of any Forced Outage in accordance with the CAISO Tariff.
10. Anaheim’s Scheduling Responsibilities.
Anaheim shall be responsible for Scheduling the Product in accordance with this Agreement, Section 4.02(b), Exhibit D, and the Forecast provided by Seller. (a) In the event that CAISO scheduling practices and protocols change in such a way that causes a conflict with the provisions of this Exhibit D, the Parties shall use good faith efforts to make necessary changes to this Exhibit D to conform to the scheduling practices in effect at that time. The Parties acknowledge that changes to the CAISO scheduling practices and protocols are expected to occur during the term of the Agreement, and hereby agree that any modifications to this procedure necessary to accom modate such changes will endeavor to reasonably match the intent reflected in this Exhibit D as of the Effective Date.
11. Seller’s Outage Scheduling Requirements.
(a) 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.
12. Scheduling Protocols
(a) As Scheduling Coordinator for the Generating Facility, Anaheim will receive Forecasts from Seller, or Seller’s designee, in accordance with Exhibit D and will Schedule with the CAISO in accordance with such Forecasts and the CAISO Tariff.
(b) The whole amount of electric energy from the Generating Facility will be bid or self-scheduled into the CAISO Markets as instructed by Seller.
1 NTD: Update for this project?
Requested Outage Information
From Date
From
Hour
Ending
(HE)
To Date
To Hour
Ending
(HE)
Maintenance to be Perfornmed
Available
Capacity
MW
3/25/2010 7 3/31/2010 24 Feed Pump rebuild 0
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit D Forecasting and Scheduling Requirements and Procedures
(c) Buyer shall Schedule all electric energy generated by the Generating Facility during all hours in all days of all months during the Term.
*** End of EXHIBIT D ***
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit E Payments and Invoicing
EXHIBIT E
Payments and Invoicing
A. COST RESPONSIBILITY, INVOICING, AND PAYMENTS UPON
COMMENCEMENT OF THE TERM
1.01 Cost Responsibility Upon Term Commencement Date.
(a) Anaheim Cost Responsibility.
Upon the Term Commencement Date and for the remainder of the Term, (i) Anaheim shall pay Monthly Cash Settlement Amounts to Seller for Product delivered to Anaheim calculated in the manner described in Section 1.02 below.
(b) Seller Cost Responsibility.
Upon the Term Commencement Date and for the remainder of the Term:
(i) If during the Delivery Term, Seller fails to comply with the Forecasting provisions set forth in this Agreement and Exhibit D, Seller shall pay any CAISO Charges and Fees assessed by the CAISO.
1.02 Monthly Cash Settlement Amount Calculations.
For the purpose of calculating monthly Payment Invoices for Product delivered to Anaheim as of the Term Commencement Date in accordance with the terms of this Agreement (“Monthly Cash Settlement Amount”), Product will be paid as set forth in Sections 1.02, 1.03, and 1.04 of this Exhibit E. Buyer shall pay Seller the Monthly Cash Settlement Amount, in arrears, for each Calculation Period. The “Monthly Cash Settlement Amount” for a particular Calculation Period shall be equal to the sum of the following:
(a) An amount equal to all CAISO Revenues associated with each MWh of Product received from the Project at the Delivery Point (net of any CAISO Charges and Fees, as set forth in this Agreement) and any subsequent CAISO True -Ups for prior periods, plus
(b) $59.00/MWh for each MWh of CEC RPS Eligible Bucket One Energy (as evidenced by the transfer of WREGIS Certificates to Anaheim).
1.03 Payment Statement and Invoices during the Term
(a) No later than the twenty -first (21st) Business Day immediately following the end of a Calculation Period, Buyer shall send to Seller the CAISO’s first re - calculation settlement statement identifying the Product delivered by the Project in such Calculation Period and all CAISO Charges and Fees and CAISO Revenues associated with the Project (“CAISO Statement”), any su bsequent CAISO True -Ups for prior periods, and the following data relating to the Calculation Period:
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit E Payments and Invoicing
(i) Raw OMAR Data (Channel 4 – in 10 Minute Data format), or as revised by CAISO protocols);
(ii) 6011 Day Ahead Energy, Congestion, Loss Settlement ( in Hourly Data format, or as revised by CAISO protocol) – including:
(1) MW Scheduled; and
(2) Amount paid or charged to the Generating Facility by the CAISO; (iii) 6460 FMM Instructed Imbalance Energy Settlement (15 Minute Data format, or as revised by CAISO protocol) – including:
(1) MW Scheduled; and
(2) Amount paid or charged to the Generating Facility by the CAISO;
(iv) 6470 Real Time Instructed Imbalance Energy Settlement ( in 10 Minute Data format, or as revised by CAISO protocol) – including:
(1) MW Scheduled; and
(2) Amount paid or charged to the Generating Facility by the CAISO;
(v) 6475 Real Time Uninstructed Imbalance Energy Settlement– (in 10 Minute Data format), or as revised by CAISO protocol) – including:
(1) MW Over Generated or Under Generated; and
(2) Amount paid or charged to the Generating Facility by the CAISO;
(b) Once Seller receives the Payment Statement from Buyer, Seller shall send an invoice to Buyer identifying the Monthly Cash Settlement Amount for the applicable Calculation Period, which shall include a statement of (i) the total amount of Product (in MWh) delivered to the Delivery Point during such Calculation Period; and (ii) the WREGIS Certificates delivered to Buyer during such Calculation Period (“Payment Invoice”). The Payment Invoice shall include the serial number and month and year vintage of each WREGIS Certificate identified in the Payment Invoice.
(c) Within five (5) Business Days of receiving a Payment Invoice from Seller Buyer shall:
(i) Send to Seller, via wire transfer or ACH, the Monthly Cash Settlement Amount for the Calculation Period identified in the Payment Invoice, as adjusted by any CAISO True -Ups associated with a previous Calculation Period, plus, if such payment is late, a Si mple Interest Payment using the number of days that such payment is late. (ii) If Buyer is the Project’s Scheduling Coordinator and Seller disputes a CAISO True -Up or any Settlement Statement from the CAISO City of Anaheim
[Energy Development & Construction Corp.]
Exhibit E Payments and Invoicing
associated with the Project, Buyer shall pursue such dispute with the CAISO on behalf of Seller if properly documented in writing to Buyer within the settlement process timeline under CAISO Tariff Section
11.29 as may be amended or superseded. Buyer shall not be held responsible for any outcome of the dispute.
(iii) If Buyer, in good faith, disputes the correctness of the Payment Invoice or a portion thereof, Buyer will pay only the undisputed portion of the Payment Invoice and state, in writing, the basis for the dispute. Payment of the disputed portion of the Payment Invoice 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 a Simple Interest Payment.
(iv) Buyer shall provide Seller documentation supporting any CAISO Revenues, CAISO Charges and Fees or other applicable revenues, charges and offsets which affected the net amount paid to Seller pursuant to clause (c)(i) above.
(v) Anaheim shall not be held responsible to pay an interest penalty based on subsequent CAISO True-ups (Recalculations and Reruns) produced by the CAISO after the first month -end recalculation (currently the T+12B Recalculation) or any dispute(s), but will pass through to Seller any interest obtained from CAISO for such CAISO True-up.
1.04 Recomputation and Payment Adjustments.
(a) If Seller or Anaheim determines that a calculation of Metered Amounts or CAISO Charges and Fees is incorrect as a result of inaccurate meters, the correction of data by the CAISO in OMAR, or a recalculation of CAISO Charges and Fees or other amounts owing between the Parties, Seller or Anaheim, as the case may be, shall promptly recompute the Metered Amounts or CAISO Charges and Fees, or other amounts for the period of the inaccuracy based upon an adjustment of inaccurate meter readings, correction of data or recalculation of CAISO Charges and Fees in accordance with the CAISO Tariff and any payment affected by the adjustment or correction. (b) Adjustment of Payment.
Any amount due from Anaheim to Seller, or Seller to Anaheim, as the case may be, will be made as an adjustment to the next Payment Invoice that is calculated after Seller’s or Anaheim’s recomputation using corrected measurements.
If the recomputation results in a net amount owed to Anaheim after applying any amounts owing to Seller as shown on the next monthly payment statement, any such amount owing to Anaheim will at Anaheim’s discretion be netted against amounts owed to Seller in any subsequent monthly Payment Invoice or separately invoiced to Seller, in which case Seller must pay the amount owing to Anaheim within ten (10) days after receipt of that invoice.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit E Payments and Invoicing
Anaheim may make payment adjustments arising from the CAISO Recalculation Settlement Statement, CAISO Charges and Fees, or as a result of inaccurate meters after the end of the Term, provided, the Parties will be deemed to have waived any such payment adjustments which are not communicated as provided in this Section 1.04 of this Exhibit E within thirty - six (36) months after the end of the Term.
Adjustment payments for meter inaccuracy will not bear interest.
1.05 Netting Rights.
Anaheim reserves the right to net amounts that would otherwise be due to Seller under this Agreement in payment of any amounts:
(a) Owing and unpaid by Seller to Anaheim under this Agreement; or (b) Owed to Anaheim by Seller arising out of, or related to, any other Anaheim agreement, tariff, obligation or liability.
Nothing in this Section 1.05 limits Anaheim’s rights under applicable tariffs, other agreements, or Applicable Law.
B. PAYMENT ERRORS
2.01 Notice of Error in Payment
Except as provided in Section 1.04 of this Exhibit E, if within one (1) year after receipt of Anaheim’s Payment, Seller does not give Anaheim Notice of an error in the payment amount, then Seller will be deemed to have waived any error in the payment.
2.02 Reimbursement for Underpayments and Overpayments.
If Seller identifies a payment error in Seller’s favor and Anaheim agrees that the identified error occurred, Anaheim shall reimburse Seller for the amount of the underpayment caused by the error and apply the additional payment to the next monthly Payment Invoice that is calculated.
If Seller identifies a payment error in Anaheim’s favor and Anaheim agrees that the identified error occurred, Anaheim may net the amount of overpayment caused by the error against amounts otherwise owed to Seller in connection with the next monthly Payment Invoice that is calculated.
2.03 Late Payments.
Late payments to Seller resulting from Anaheim’s errors, or overpayments to Seller by Anaheim, will include a Simple Interest Payment calculated using the Interest Rate and the number of days between the date due (or, in the case of overpayments by Anaheim, commencing five (5) Business Days from the date Anaheim provides Notice of such overpayments to Seller) and the date paid; provided, that changes made because of settlement, audit or other information provided by the CAISO and not available to Anaheim when Anaheim rendered its original Payment Invoice will not bear interest.
2.04 Netting after Recomputation.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit E Payments and Invoicing
If the recomputation for an error results in a net amount still owing to Anaheim after applying the amounts owed to Anaheim against any amounts owed to Seller in the payment statement, as described above, then Anaheim may, in its discretion, either net this net remaining amount owed to Anaheim against amounts owed to Seller in any subsequent monthly Payment Invoice to Seller or invoice Seller for such amount, in which case Seller must pay the amount owing to Anaheim within ten (10) days after receipt of such invoice.
2.05 Resolution of Disputes.
The Parties shall negotiate in good faith to resolve any disputes regarding claimed errors in a Payment. Any disputes which the Parties are unable to resolve through negotiation may be submitted for resolution throu gh the mediation as provided in Article Twelve.
*** End of EXHIBIT E ***
City of Anaheim
[Energy Development & Construction Corp.]
The contents of this document are subject to restrictions on disclosure as set forth herein.
Exhibit F Product Replacement Damage Amount
EXHIBIT F
Product Replacement Damage Amount
In accordance with the provisions of Section 3.06, if at the end of any Performance Period, Seller fails to meet Seller’s Energy Delivery Obligation for that Performance Period; then Seller shall be subject to a Product Replacement Damage Amount penalty calculated as follows:
PRODUCT REPLACEMENT DAMAGE AMOUNT =
[(A – B – C) x (D – E)]
Where:
A = Seller’s Energy Delivery Obligation in MWh.
B = Sum of Qualified Amounts during the Performance Period in MWh.
C = Sum of Lost Output during the Performance Period in MWh.
D = Simple average of the Green Market Price during the Performance Period in $/MWh.
E = Simple average of the CAISO Locational Marginal Price in the Day Ahead Market during the Performance Period in $/MWh plus $59.00/MWh.
Notes:
1. If the result of the calculation above is zero or less, Seller will not be obligated to pay a Product Replacement Damage Amount.
2. In no event will Anaheim pay any Product Replacement Damage Amount.
3. For the avoidance of doubt, the CAISO Locational Marginal Price in the Day Ahead Market in D and E above are equal.
*** End of EXHIBIT F ***
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit G Seller’s Estimate of Lost Output
EXHIBIT G
Seller’s Estimate of Lost Output
Lost Output, as used in Section 3.20, shall be estimated by Seller in accordance with the procedures described in this Exhibit G , or as otherwise mutually agreed to in writing by the Parties.
Seller shall (1) collect the measurement data and perform the engineering calculations specified below in one (1) or more Microsoft Excel Workbooks (the “Lost Output Workbook”) provided in a form and naming convention approved by Anaheim and (2) electronic ally send the Lost Output Workbook to an address provided by Anaheim.
Anaheim shall have the right to verify all data by inspecting measurement instruments and reviewing Generating Facility Operating records.
Seller shall update the Lost Output Workbook as applicable and shall include the latest revision of the Lost Output Workbook with its Lost Output Report.
1. Log of Lost Output Events.
The log of Lost Output Events must be created on a single, dedicated worksheet that is arranged with:
(a) One (1) column for a Lost Output Event number;
(b) One (1) column for the Term Year number;
(c) One (1) column for the start date;
(d) One (1) column for the start time;
(e) One (1) column for the end date;
(f) One (1) column for the end time;
(g) One (1) column for the duration;
(h) One (1) column for the cause;
(i) One (1) column for the total of Qualified Amounts during all of the Settlement Intervals of the Lost Output Event, recorded in Seller’s Settlement Interval Estimate of Lost Output set forth in Item 4(i) in this Exhibit G; (j) One (1) column for the total of the Lost Output preliminary results during all of the Settlement Intervals of the Lost Output Event, calculated in Seller’s Settlement Interval Estimate of Lost Output set forth in Item 4(j) in this Exhibit G;
(k) One (1) column for a percentage calculated by dividing the preliminary results set forth in Item 1(j) of this Exhibit G by the Qualified Amounts set forth in Item 1(i) of this Exhibit G;
(l) One (1) column for the total of the Lost Output final results during all of the Settlement Intervals of the Lost Output Event, calculated in Settlement Interval Estimate of Lost Output set forth in Item 4(k) in this Exhibit G; and City of Anaheim
[Energy Development & Construction Corp.]
Exhibit G Seller’s Estimate of Lost Output
(m) One (1) column for a percentage calculated by dividing the final results set forth in Item 1(l) of this Exhibit G by the Qualified Amounts set forth in Item 1(i) of this Exhibit G.
(n) One (1) row for each Lost Output Event.
2. Generating Facility Power Curve.
Seller shall create a Generating Facility Power Curve table on a single dedicated worksheet that is arranged with:
(a) One (1) column for an item number;
(b) One (1) column for the wind speeds;
(c) One (1) column for the manufacturer’s estimate of the electric energy that can be produced by a single Wind Turbine at each wind speed; (d) One (1) column for a power curve which estimates the electric energy that could be produced by the entire Generating Facility at each wind speed calculated by:
(i) Multiplying the Wind Turbine manufacturer’s estimate of the electric energy that will be produced by a single Wind Turbine, set forth in Item 2(c);
(ii) Times the total number of Generating Facility Wind Turbines; and then (iii) Adjusting the results for the estimated impacts of one (1) Wind Turbine on another and for electric losses within the Generating Facility; (e) One (1) column for each Term Year power curve which includes a simple average of all Qualified Amount data points, set forth in Item 3(f), at each wind speed; and
(f) One (1) row for each one half (0.5) meter per second wind speed.
Seller shall also create a single chart which plots all of power curves set forth in Item 2(d) and Item 2(e) of this Exhibit G on the Generating Facility Power curve worksheet.
3. Wind Speed Data Collection.
Seller shall record average Settlement Interval wind speeds, in increments of one half (0.5) meters per second, and Qualified Amounts for the Settlement Interval in the Lost Output Workbook on individual Term Year worksheets.
Each Term Year worksheet must be arranged with:
(a) One (1) column for an item number;
(b) One (1) column for the date;
(c) One (1) column for the beginning time;
(d) One (1) column for the weekday;
(e) One (1) column for each recorded wind speed measurement; City of Anaheim
[Energy Development & Construction Corp.]
Exhibit G Seller’s Estimate of Lost Output
(f) One (1) column for each Qualified Amounts quantity; (g) One (1) column for a forecast of Qualified Amounts determined by:
(i) Multiplying the recorded wind speed measurement set forth in Item 3(e) of this Exhibit G;
(ii) Times the appropriate value in the Generating Facility Power Curve, set forth in Item 2(e) of this Exhibit G, for the first Term Year; and (h) One (1) row for each Settlement Interval period.
4. Detailed Estimate of Lost Output.
Seller’s detailed estimate of the Lost Output amounts during the Term shall be presented on a single worksheet organized as follows:
(a) One column for an item number;
(b) One (1) column for the Lost Output Event number;
(c) One (1) column for the state date;
(d) One (1) column for the start time;
(e) One (1) column for the end date;
(f) One (1) column for the end time;
(g) One (1) column for the weekday;
(h) One (1) column for the wind speeds;
(i) One (1) column for Qualified Amounts;
(j) One (1) column for a preliminary estimate of the Qualified Amounts that would have been produced by the Generating Facility, but for the Lost Output Event calculated by:
(i) Multiplying the wind speed:
(ii) Times the appropriate initial power curve as follows:
1. For the first eleven (11) months of the first Term Year the appropriate initial power curve shall be the power curve set forth in Item 2(d) of this Exhibit G;
2. For the first eleven (11) months of any Term Year, other than the first Term Year, the appropriate initial power curve shall be the power curve set forth in Item 2(e) of this Exhibit G for the previous Term Year;
(k) One (1) column for a final estimate of the Qualified Amounts that would have been produced by the Generating facility, but for the Lost Output Event calculated by:
(i) Multiplying the wind speed;
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit G Seller’s Estimate of Lost Output
(ii) Times the final power curve from Item 2(e) of this Exhibit G for the Term Year being calculated;
(l) One (1) column for the preliminary estimate of Lost Output calculated by:
(i) Subtracting the actual Qualified Amount quantities set forth in Item 4(i) of this Exhibit G;
(ii) From the preliminary estimate of the Qualified Amounts that would have been produced by the Generating Facility, but for the Lost Output Event, calculated in Item 4(j); and
(m) One (1) column for the final estimate of Lost Output calculated by:
(i) Subtracting the actual Qualified Amount quantities set forth in Item 4(i) of this Exhibit G;
(ii) From the final estimate of Qualified Amounts that would have been produced by the Generating Facility, but for the Lost Output Event, calculated in Item 4(k) of this Exhibit G; and
(n) One (1) row for each Settlement Interval.
5. Generating Facility Efficiency Calculation.
Seller shall calculate a Generating Facility Efficiency value for each calendar month and each Term Year on a dedicated worksheet organized with three tables. (a) The first table must contain the monthly Qualified Amount totals and must consist of:
(i) One (1) column for the month number;
(ii) One (1) column for the month name;
(iii) One (1) column for the year number;
(iv) One (1) column for the monthly Qualified Amount totals for each Term Year from the wind speed data collection worksheet column set forth in Item 3(f) of this Exhibit G; and
(v) One (1) row for each month;
(b) The second table must contain the monthly totals of forecasted Qualified Amount and must consist of:
(i) One (1) column for the month number;
(ii) One (1) column for the month name;
(iii) One (1) column for the year number;
(iv) One (1) column for the monthly totals of forecasted Qualified Amount for each Term Year from the wind speed data collection worksheet column set forth in Item 3(g) of this Exhibit G; and
(v) One (1) row for each month; and
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit G Seller’s Estimate of Lost Output
(c) The third table must contain monthly Qualified Amount totals and must consist of:
(i) One (1) column for the month number;
(ii) One (1) column for the month name;
(iii) One (1) column for the year number;
(iv) One (1) column for a monthly Generating Facility Efficiency result and a Term Year Generating Facility Efficiency results calculated by:
1. Dividing the appropriate value in the first table;
2. By the appropriate value in the second table;
(v) One (1) row for each month; and
(vi) One (1) row for the Term Year Generating Facility Efficiency results.
6. Periodic Review of Lost Output Calculation.
Anaheim shall review the variation in the Lost Output preliminary and final results as applicable to determine if other variables, including temperature or other measured parameters should be incorporated into the Lost Output calculations.
7. Assignment of Lost Output Estimate to an Independent Consultant.
The Parties can by mutual agreement elect to have the estimate of Lost Output prepared by an independent consultant.
*** End of EXHIBIT G ***
City of Anaheim
[Energy Development & Construction Corp.]
The contents of this document are subject to restrictions on disclosure as set forth herein.
Exhibit H Form of Letter of Credit
EXHIBIT H
Form of Letter of Credit
[Bank Letterhead]
DATE: MM/DD/YYYY
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: [INSERT NUMBER]
BENEFICIARY: APPLICANT:
City of Anaheim Seller.
201 South Anaheim Blvd., Ste. 1101 Street Address Anaheim, CA 92805 City, State Zip
Attn: Janis Lehman, Energy Risk Manager
AMOUNT
NOT EXCEEDING USD: [INSERT NUMBER]
EXPIRATION
[INSERT DATE] AT OUR COUNTERS
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 $XXX,XXX.XX (Dollars and Cents ) UNITED STATES
DOLLARS, WHICH IS AVAILABLE BY PAYMENT WITH US WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. A DRAFT AT SIGHT DRAWN ON (INSERT – NAME OF BANK), MARKED “DRAWN UNDER [INSERT NAME OF BANK] IRREVOCABLE LETTER OF CREDIT NO. [INSERT NUMBER]”.
City of Anaheim
[Energy Development & Construction Corp.]
The contents of this document are subject to restrictions on disclosure as set forth herein.
Exhibit H Form of Letter of Credit
2. COPY OF INVOICE(S) MARKED “UNPAID”.
3. A STATEMENT ISSUED ON THE LETTERHEAD OF AND SIGNED BY THE BENEFICIARY STATING THE FOLLOWING:
THE APPLICANT HAS NOT MADE PAYMENT ON INVOICE NUMBER __ (BENEFICIARY TO PROVIDE ) PER THE RELEVANT CONTRACTS. WE
THEREFORE DEMAND PAYMENT IN THE AMOUNT OF
US$______________________ AS SAME IS DUE AND OWING.”
WE HAVE BEEN ADVISED BY THE APPLICANT THAT THIS LETTER OF CREDIT IS
ISSUED IN CONNECTION WITH THE RENEWABLE POWER PURCHASE AND SALE AGREEMENT DATED [INSERT DATE] AND THE AGREEMENT FOR SCHEDULING
COORDINATOR SERVICES FOR KAREN AVENUE WIND FARM DATED
_____________, 20__ (COLLECTIVELY THE “RELEVANT CONTRACTS”).
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 12:00 P.M. (PACIFIC 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 12:00 P.M. (PACIFIC TIME) ON A BUSINESS DAY, THEN WE SHALL, PRIOR TO CLOSE OF
BUSINESS ON THE SECOND FOLLOWING BUSINESS DAY, MAKE PAYMENT IN IMMEDIATELY AVAILABLE FUNDS.
THE TERM “BUSINESS DAY” SHALL MEAN ANY DAY OTHER THAN A
SATURDAY, SUNDAY OR A DAY WHICH SHALL BE IN THE STATE OF
CALIFORNIA A LEGAL HOLIDAY OR A DAY ON WHICH BANKS ARE
AUTHORIZED OR OBLIGATED BY LAW OR EXECUTIVE ORDER TO CLOSE.
PARTIAL DRAWINGS AND MULTIPLE PRESENTATIONS ARE PERMITTED.
City of Anaheim
[Energy Development & Construction Corp.]
The contents of this document are subject to restrictions on disclosure as set forth herein.
Exhibit H Form of Letter of Credit
ALL BANKING 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 OFFICE LOCATED AT (INSERT – ADDRESS OF SOUTHERN CALIFORNIA LOCATION), CALIFORNIA ), ATTENTION: STANDBY LETTER OF CREDIT
DEPARTMENT ON OR BEFORE THE ABOVE STATED EXPIRY DATE, OR ANY EXTENDED EXPIRY DATE.
PRESENTATION BY FACSIMILE OR E -MAIL IS PERMITTED. PRESENTATION SHALL BE MADE AT [INSERT BANK NAME] TO (INSERT – FAX NUMBER ) OR (INSERT EMAIL ADDRESS) AND IMMEDIATELY FOLLOWED BY TELEPHONE CONFIRMATION TO [INSERT PHONE NUMBER], AND PROVIDED THAT THE
GIVING OF SUCH TELEPHONIC NOTICE SHALL NOT BE A CONDITION TO OUR OBLIGATION TO MAKE PAYMENT HEREUNDER.
PRESENTATION OF DOCUMENT(S) THAT ARE NOT IN COMPLIANCE WITH THE
APPLICABLE ANTI -BOYCOTT, ANTI -MONEY LAUNDERING, ANTI -TERRORISM,
ANTI-DRUG TRAFFICKING, EXPORT DENIAL OR ECONOMIC SANCTIONS LAWS, REGULATIONS OR ORDERS IS NOT ACCEPTABLE. APPLICABLE LAWS VARY
DEPENDING ON THE TRANSACTION AND MAY INCLUDE UNITED NATIONS, UNITED STATES AND/OR LOCAL LAWS.
THIS LETTER OF CREDIT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR A PERIOD OF ONE (1) YEAR AND ON EACH SUCCESSIVE EXPIRATION DATE, UNLESS AT LEAST SIXTY (60) DAYS BEFORE
ANY EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR
OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS, THAT THIS LETTER OF CREDIT IS NOT EXTENDED BEYOND THE CURRENT EXPIRATION DATE.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO.
City of Anaheim
[Energy Development & Construction Corp.]
The contents of this document are subject to restrictions on disclosure as set forth herein.
Exhibit H Form of Letter of Credit
590 (“ISP98”). AS TO MATTERS NOT GOVERNED BY THE ISP 98, THIS LETTER OF
CREDIT IS GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND APPLICABLE U.S. FEDERAL LAW.
SINCERELY,
AUTHORIZED SIGNATURE
TO BE COMPLETED UPON ACCEPTANCE AND ISSUANCE OF FINAL LETTER OF CREDIT
(INSERT – TYPED NAME AND TITLE)
(Please note – The Bank is to provide documentation supporting signatory’s authority to issue the Letter of Credit in the specified amount at the time the Letter of Credit is issued.)
IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS TRANSACTION, PLEASE CALL (INSERT – CONTACT INFORMATION)
City of Anaheim
[Energy Development & Construction Corp.]
The contents of this document are subject to restrictions on disclosure as set forth herein.
Exhibit H Form of Letter of Credit
*** End of EXHIBIT H ***
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
EXHIBIT I
Notice of Anaheim’s Rights
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Anaheim
201 S. Anaheim Blvd., Second Floor
Anaheim, California 92805
Attention: City Clerk
APN: ______________________
(Space Above for Recorder’s Use Only)
NOTICE OF ANAHEIM’S RIGHTS
NOTICE IS HEREBY GIVEN THAT THE CITY OF ANAHEIM , a California municipal corporation (“Anaheim”), and Energy Development & Construction Corp. , a Delaware corporation (“Seller”), have entered into that Renewable Power Purchase and Sale Agreement dated as of __________ (as amended, supplemented and revised from time to time, the “Agreement”). Pursuant to the Agreement, Anaheim has the right to purchase all electric energy and Green Attributes (as such terms are defined in the Agreement) associated with or attributable to any generating facilities located or to be located on that certain real property (the “Property”) more particularly described on Exhibit A attached hereto and incorporated herein by the reference.
Anaheim’s rights shall terminate as set forth in the Agreement, but not later than ____.
This Notice shall terminate automatically on ____, unless earlier terminated by Anaheim by recording a notice of termination.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
Reference is made to the Agreement for the terms and conditions of Anaheim’s rights.
In the event of a conflict between the terms of this Notice and the terms of the Agreement, the terms of the Agreement shall control.
[Signatures on the following page]
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
ENERGY DEVELOPMENT &
CONSTRUCTION CORPORATION
a Delaware corporation
CITY OF ANAHEIM,
a California municipal corporation
By: William W. Adams
Its: President
Date:
By:
Date:
By:
Its:
Date:
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
EXHIBIT A
LEGAL DESCRIPTION
The following legal description of each parcel represents a portion of land comprising the Karen Avenue Wind Farm.
The Karen Avenue Wind Farm contains land owned by Wind Energy Partnership, a California limited partnership (Parcels 1-9).
Each parcel reference is depicted on a parcel map attached to this exhibit.
PARCEL 1: 16.47 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
Parcel(s) 4 and Lettered Lots D & H of Parcel Map 11456, in the City of Palm Springs, County of Riverside, State of California, as shown by map on file in Book 55 Page(s) 27 and 28, of Parcel Maps, Records of Riverside County, California.
APN 668-280-021-5
PARCEL 2: 4.17 Acres The land referred to herein is situated in the State of California, County of Riverside, and described as follows:
The North one-half of the Northeast one -quarter of the Southwest one -quarter of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian, Excepting the North
55.00 feet, as conveyed to the County of Riverside by deed dated August 28, 1963.
Assessor's Parcel Numbers(s): 666-120-002-9
PARCEL 3: 18.33 Acres The land referred to herein is situated in the State of California, County of Riverside, and described as follows:
The North half of the Northeast Quarter of the Northwest Quarter of the Southwest Quarter of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian, Excepting therefrom the North 55 feet thereof.
Assessor's Parcel Numbers(s): 666-120-007-4
PARCEL 4: 13.75 Acres The land referred to herein is situated in an unincorporated area known as North Palm Springs, the County of Riverside, State of California, and is described as follows:
The North half of the Northwest quarter of the Northwest quarter of the Southeast quarter and the South half of the North half of the Northwest quarter of the Southeast quarter of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian; Excepting therefrom the North 55 feet thereof; Also Excepting therefrom the West 30 feet thereof.
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
Assessor's Parcel Numbers(s): 666-140-022
PARCEL 5: 39.22 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
M/L IN POR PAR 1 PM 134/096 PM 20293 N2 SW4 Sec. 10 T.3.S. R.4.E.
Parcel # (APN): 666-120-012
PARCEL 6: 39.22 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
M/L IN POR PAR 1 PM 134/096 PM 20293 S2 SW4 Sec. 10 T.3.S. R.4.E.
Parcel # (APN): 666-130-007
PARCEL 7: 40 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs, and described as follows:
IN POR SW 1/4 OF SEC 10 T3S R4E FOR TOTAL DESCRIPTION SEE ASSESSORS MAPS S2 SW4 Sec. 10 T.3.S. R.4.E.
Parcel # (APN): 666-130-006
PARCEL 8: 20.00 Acres The land referred to herein is situated in the County of Riverside, State of California, and is described as follows:
The North 1/2 of the Southwest 1/4 of the Southeast 1/4 of Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian.
Assessor’s Parcel Number(s): 666-150-001-1
PARCEL 9: 20.00 Acres The land referred to herein is situated in the State of California, County of Riverside, City of Palm Springs and described as follows:
The South half of the Southwest quarter of the Southeast quarter, in Section 10, Township 3 South, Range 4 East, San Bernardino Base and Meridian. Excepting therefrom the South 44 feet thereof for road purposes.
APN: 666-150-002-2
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On _______________________ 20____, before me,
____________________________________________________, Notary Public, personally appeared __________________________________________________,who proved to me on the basis of satisfactory evidence to be the perso n(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_____________________________________
[SEAL]
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit I Notice of Anaheim’s Rights
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On _______________________ 20____, before me,
____________________________________________________, Notary Public, personally appeared __________________________________________________,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_____________________________________
[SEAL]
*** End of EXHIBIT I***
City of Anaheim
[Energy Development & Construction Corp.]
Exhibit J Form of Term Commencement Date Confirmation Letter
EXHIBIT J
Form of Term Commencement Date Confirmation Letter
[Insert Date]
Integrated Resources Manager
201 S. Anaheim Blvd., Suite 802
Anaheim, California, 92805
Attn: [Insert Name]
Re: Renewable Power Purchase and Sale Agreement
Term Commencement Date Confirmation Letter
Dear [Insert Name]:
Pursuant to Section 2.03(i)(6) of the Renewable Power Purchase and Sale Agreement between the City of Anaheim (“Anaheim”) and Energy Development & Construction Corp. (“Seller”), effective as of [Insert Effective Date] (“Agreement”) this letter is the Term Commencement Date Confirmation Letter. All initially -capitalized terms used, but not defined herein, have the meanings given in the Agreement.
By this letter, the Parties confirm that satisfactory performance of the conditions set forth in Sections 2.03(a)(i)(1) through 2.03(a)(i)(5) has occurred and that, upon execution by Anaheim of this Term Commencement Date Confirmation Letter, satisfactory performance of the conditions set forth in Section 2.03(a)(i)(6) will have occurred. Accordingly, the Parties agree that the Term Commencement Date is [Insert Date].
Please acknowledge Anaheim’s agreement to the foregoing by having an authorized signatory execute this letter in the space below and returning a copy to me.
Sincerely,
______________________
[Insert Title]
Energy Development &
Construction Corp.
Acknowledged and Agreed:
________________________
[Insert Name and Title]
City of Anaheim
[Insert Date]