EXECUTION FINAL
1 RENEWABLE POWER PURCHASE AGREEMENT
COVER SHEET
Seller: Alta Oak Realty, LLC
Buyer: City of Anaheim, a California municipal corporation Description of Facility: “ Facility” means the Zephyr Park Project and the Oak Creek Project, existing wind facilities consisting of a combined seven (7) 600 kW wind turbine generators, thirtythree ( 33) 700 kW wind turbine generators, two ( 2) 900 kW wind turbine generators, and one ( 1)
1.35 MW wind turbine generator for a total capacity of 30.45 MW, located in Kern County, California ( as further described in Exhibit A); provided that the Facility does not include the Shared Facilities.
Delivery Term: The period for Product delivery will be for ten ( 10) Contract Years.
Delivery Term Start Date: February 13, 2026
Expected Energy:
Contract Year Expected Energy ( MWh)
1 56,500
2 55,992
3 55,488
4 54,988
5 54,493
6 54,003
7 53,517
8 53,035
9 52,558
10 52,085
Guaranteed Capacity: 30.45 MW
Maximum Capacity: 31.37 MW
Delivery Points: PNode assigned to each project by the CAISO. As of the Effective Date, for the Zephyr Park Project this Pnode is POD_ OAKWD_ 6_ZEPHWD- APND, and for the Oak Creek Project this Pnode is POD_OAKWD_6_QF-APND.
2 Contract Price
The Contract Price shall be comprised of the REC Price and the Energy Price as follows, and shall be further calculated in accordance with Exhibit C.
REC Price Energy Price
30/MWh for delivered PCC1
RECs $ 75.85/MWh
Product:
Facility Energy
Green Attributes (Portfolio Content Category 1)
Capacity Attributes ( select options below as applicable) Energy Only Status
Full Capacity Deliverability Status
Scheduling Coordinator: Seller/ Seller Third Party
Performance Security: $100.00/kW of Maximum Capacity
TABLE OF CONTENTS
Page
i
ARTICLE 1 DEFINITIONS ....................................................................................................... 1
1.1 Contract Definitions ............................................................................................... 1
1.2 Rules of Interpretation ......................................................................................... 16 ARTICLE 2 TERM; CONDITIONS PRECEDENT ............................................................. 17
2.1 Contract Term. ..................................................................................................... 17
2.2 Conditions Precedent ........................................................................................... 18 ARTICLE 3 PURCHASE AND SALE .................................................................................... 18
3.1 Purchase and Sale of Product ............................................................................... 18
3.2 Sale of Green Attributes....................................................................................... 18
3.3 Imbalance Energy. ............................................................................................... 18
3.4 Ownership of Renewable Energy Incentives. ...................................................... 18
3.5 Future Environmental Attributes. ........................................................................ 18
3.6 Pre- Delivery Term Product. ................................................................................. 19
3.7 Capacity Attributes. ............................................................................................. 19
3.8 Resource Adequacy Failure ................................................................................. 20
3.9 CEC Certification and Verification. .................................................................... 20
3.10 [ Reserved] ............................................................................................................ 20
3.11 RPS Standard Terms and Conditions. .................................................................. 20
3.12 Compliance Expenditure Cap. ............................................................................. 21 ARTICLE 4 OBLIGATIONS AND DELIVERIES ............................................................... 22
4.1 Delivery................................................................................................................ 22
4.2 Title and Risk of Loss. ......................................................................................... 22
4.3 Forecasting ........................................................................................................... 22
4.4 [ Reserved] ............................................................................................................ 23
4.5 [ Reserved] ............................................................................................................ 23
4.6 Reduction in Delivery Obligation ........................................................................ 23
4.7 Guaranteed Energy Production ............................................................................ 25
4.8 [ Reserved] ............................................................................................................ 26
4.9 [ Reserved]. ........................................................................................................... 26
4.10 WREGIS .............................................................................................................. 26 ARTICLE 5 TAXES .................................................................................................................. 27
5.1 Allocation of Taxes and Charges. ........................................................................ 27
5.2 Cooperation. ......................................................................................................... 27 ARTICLE 6 MAINTENANCE OF THE FACILITY ............................................................ 27
6.1 Maintenance of the Facility. ................................................................................ 27
6.2 Maintenance of Health and Safety. ...................................................................... 28
6.3 Shared Facilities ................................................................................................... 28 ii
ARTICLE 7 METERING AND DATA ................................................................................... 28
7.1 Metering. .............................................................................................................. 28
7.2 Meter Verification. ............................................................................................... 28
7.3 Data. ..................................................................................................................... 29 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ........................................................ 29
8.1 Invoicing. ............................................................................................................. 29
8.2 Payment................................................................................................................ 30
8.3 Books and Records. ............................................................................................. 30
8.4 Payment Adjustments; Billing Errors. ................................................................. 30
8.5 Billing Disputes. .................................................................................................. 30
8.6 [ Reserved]. ........................................................................................................... 31
8.7 [ Reserved]. ........................................................................................................... 31
8.8 Seller’s Performance Security.............................................................................. 31
8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ................ 31 ARTICLE 9 NOTICES ............................................................................................................. 32
9.1 Addresses for the Delivery of Notices ................................................................. 32
9.2 Acceptable Means of Delivering Notice .............................................................. 32 ARTICLE 10 FORCE MAJEURE........................................................................................... 32
10.1 Definition ............................................................................................................. 32
10.2 No Liability If a Force Majeure Event Occurs .................................................... 33
10.3 Notice ................................................................................................................... 33
10.4 Termination Following Force Majeure Event...................................................... 34 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ................................................ 34
11.1 Events of Default ................................................................................................. 34
11.2 Remedies; Declaration of Early Termination Date. ............................................. 36
11.3 Termination Payment ........................................................................................... 37
11.4 Notice of Payment of Termination Payment ....................................................... 37
11.5 Disputes With Respect to Termination Payment ................................................. 37
11.6 Rights And Remedies Are Cumulative ................................................................ 38 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF
WARRANTIES ............................................................................................ 38
12.1 No Consequential Damages. ................................................................................ 38
12.2 Waiver and Exclusion of Other Damages. ........................................................... 38 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY ..................... 39
13.1 Seller’s Representations and Warranties. ............................................................ 39
13.2 Buyer’ s Representations and Warranties ............................................................. 40
13.3 General Covenants ............................................................................................... 41 ARTICLE 14 ASSIGNMENT .................................................................................................. 41
14.1 General Prohibition on Assignments ................................................................... 41 iii
14.2 Collateral Assignment .......................................................................................... 42 ARTICLE 15 DISPUTE RESOLUTION ................................................................................ 44
15.1 Governing Law. ................................................................................................... 44
15.2 Venue. .................................................................................................................. 44
15.3 Dispute Resolution. .............................................................................................. 44 ARTICLE 16 INDEMNIFICATION ....................................................................................... 44
16.1 Mutual Indemnity................................................................................................. 44
16.2 Notice of Claim. ................................................................................................... 45
16.3 Failure to Provide Notice. .................................................................................... 45
16.4 Defense of Claims ................................................................................................ 45
16.5 Subrogation of Rights .......................................................................................... 46
16.6 Rights and Remedies are Cumulative .................................................................. 46 ARTICLE 17 INSURANCE...................................................................................................... 46
17.1 Required Insurance .............................................................................................. 46
17.2 Additional Requirements ..................................................................................... 47 ARTICLE 18 CONFIDENTIAL INFORMATION ............................................................... 48
18.1 Definition of Confidential Information ................................................................ 48
18.2 Duty to Maintain Confidentiality ......................................................................... 48
18.3 Irreparable Injury; Remedies ............................................................................... 49
18.4 Disclosure to Lenders, Etc. .................................................................................. 49
18.5 Public Records Act. ............................................................................................. 49
18.6 Press Releases. ..................................................................................................... 49 ARTICLE 19 MISCELLANEOUS .......................................................................................... 49
19.1 Entire Agreement; Integration; Exhibits .............................................................. 49
19.2 Amendments ........................................................................................................ 50
19.3 No Waiver ............................................................................................................ 50
19.4 No Agency, Partnership, Joint Venture or Lease ................................................. 50
19.5 Severability .......................................................................................................... 50
19.6 Mobile-Sierra ....................................................................................................... 50
19.7 Counterparts; Electronic Signatures .................................................................... 51
19.8 Electronic Delivery .............................................................................................. 51
19.9 Binding Effect ...................................................................................................... 51
19.10 Forward Contract ................................................................................................. 51
19.11 Further Assurances............................................................................................... 51 Exhibits:
Exhibit A Facility Description
Exhibit B [ RESERVED]
Exhibit C Compensation
iv
Exhibit D Scheduling Coordinator Responsibilities
Exhibit E [ RESERVED]
Exhibit F-1 Form of Average Expected Energy Report
Exhibit F-2 Form of Monthly Available Generating Capacity Report Exhibit G Guaranteed Energy Production Damages Calculation Exhibit H [ RESERVED]
Exhibit I [ RESERVED]
Exhibit J [ RESERVED]
Exhibit K Form of Letter of Credit
Exhibit L [ RESERVED]
Exhibit M Form of Replacement RA Notice
Exhibit N Notices
Exhibit O [ RESERVED]
Exhibit P [ RESERVED]
Exhibit Q Operating Restrictions
Exhibit R Metering Diagram
RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“ Agreement”) is entered into as of 202_ ( the “ Effective Date”), between City of Anaheim, a municipal corporation organized and existing under the laws of the State of California (“ Buyer”) and Alta Oak Realty, LLC, a Delaware limited liability company (“ Seller”). Buyer and Seller are sometimes referred to herein individually as a “ Party” and jointly as the “ Parties.” All capitalized terms used in this Agreement are used with the meanings ascribed to them in Article 1 to this Agreement.
RECITALS
WHEREAS, Seller owns or otherwise controls, and operates the Facility; and WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in this Agreement, the Product;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:
ARTICLE 1
DEFINITIONS
1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
AC” means alternating current.
Accepted Compliance Costs” has the meaning set forth in Section 3.12.
Adjusted Energy Production” has the meaning set forth in Exhibit G.
Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “ Permitted Transferee”, “ control” ( including, with correlative meanings, the terms “ controlled by” and “ under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting ( or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent ( 50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person.
Agreement” has the meaning set forth in the Preamble and includes any Exhibits, schedules and any written supplements hereto, the Cover Sheet, and any designated collateral, credit support or similar arrangement between the Parties.
Annual Excess Product” has the meaning set forth in Exhibit C. 2 Approved Forecast Vendor” means ( a) the CAISO, or (b) ifthe CAISO does not provide forecasts for the Facility, a vendor reasonably acceptable to both Buyer and Seller for the purposes of providing forecasts of Energy generation.
Authorized Auditor” means a representative of Buyer that is authorized to conduct audits on behalf of Buyer.
Available Generating Capacity” means the capacity of the Facility, expressed in whole MWs, that is mechanically available to generate Energy.
Balancing Authority” has the meaning set forth in the CAISO Tariff.
Bankrupt” means with respect to any entity, such entity that ( a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, ( b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, ( c) makes an assignment or any general arrangement for the benefit of creditors, ( d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due.
Bid Cost Recovery” has the meaning set forth in the CAISO Tariff.
Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action.
Buyer” has the meaning set forth on the Cover Sheet.
Buyer Default” means a failure by Buyer (or its agents) to perform Buyer’s obligations hereunder, and includes an Event of Default of Buyer.
Buyer’s WREGIS Account” has the meaning set forth in Section 4.10(a).
CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
CAISO Approved Meters” means the CAISO approved revenue quality meters, CAISO approved data processing gateways or remote intelligence gateways, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Facility Energy delivered to the Delivery Points.
CAISO Grid” has the same meaning as “ CAISO Controlled Grid” as defined in the CAISO Tariff.
CAISO Operating Order” means the “ Operating Instruction” defined in the CAISO Tariff.
3 CAISO Pass- Through Amounts” has the meaning set forth in Exhibit C.
CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals ( BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time- to-time and approved by FERC.
California Renewables Portfolio Standard” or “ RPS” means the renewable energy program and policies established by California State Senate Bills 1038 ( 2002), 1078 ( 2002), 107 2008), X-1 2 (2011), 350 ( 2015), and 100 ( 2018) as codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time, and all related policies, regulations, implementing decisions of the CEC or CPUC, and guidelines, including the Guidebook.
Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can generate and deliver to the Delivery Points at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits, and any of the foregoing as may in the future be defined by any Balancing Authority, reliability entity or Governmental Authority.
CEC” means the California Energy Commission, or any successor agency performing similar statutory functions.
CEC Certification and Verification” means that the CEC has certified that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Facility Energy delivered to the Delivery Points qualifies as generation from an Eligible Renewable Energy Resource.
CEQA” means the California Environmental Quality Act.
Change of Control” means, except in connection with public market transactions of equity interests or capital stock of Seller’s Ultimate Parent, any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, more than fifty percent ( 50%) of the outstanding equity interests in Seller; provided that in calculating ownership percentages for all purposes of the foregoing:
a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’ s ownership interest in Seller unless Ultimate Parent directly or indirectly owns more than fifty percent ( 50%) of the outstanding equity interests in each such intermediate entity; and b) ownership interests in Seller owned directly or indirectly by any Lender (including any cash equity or tax equity provider) or assignee or transferee thereof shall be excluded from the total outstanding equity interests in Seller.
Claim” has the meaning set forth in Section 16.2.
4 Compliance Actions” has the meaning set forth in Section 3.12.
Compliance Expenditure Cap” has the meaning set forth in Section 3.12.
Confidential Information” has the meaning set forth in Section 18.1.
Contract Price” has the meaning set forth on the Cover Sheet.
Contract Term” has the meaning set forth in Section 2.1.
Contract Year” means a period of twelve (12) consecutive months, with the first Contract Year commencing on the Delivery Term Start Date, and each subsequent Contract Year commencing on the anniversary of the Delivery Term Start Date.
Costs” means, with respect to the Non- Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non- Defaulting Party in connection with terminating the Agreement.
Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
CPM Price” means the CPM Soft Offer Cap (in $/kW-month) for the applicable month, as set forth in Section 43A.4.1.1 of the CAISO Tariff.
CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long- term debt obligations ( not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by Fitch, S& P or Moody’ s. If ratings by Fitch, S& P and Moody’ s are not equivalent, the lower rating shall apply.
Critical Component Failure” means a failure of the Facility’ s main power transformer or interconnection facilities that results in a reduction in the ability of the Facility to deliver Energy.
Curtailment Order” means any of the following:
a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, that such Party is required to curtail deliveries of Facility Energy for the following reasons: ( i) any System Emergency, or ( ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, which jeopardizes CAISO’ s electric system integrity or the integrity of other systems to which CAISO is connected; b) a curtailment ordered by the Participating Transmission Owner for reasons including, but not limited to, (i) any situation that affects normal function of the electric system 5 including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’ s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected;
c) a curtailment ordered by CAISO or the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’ s transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Facility Energy to the Delivery Points; or
d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreements with the CAISO, the Participating Transmission Owner, or distribution operator.
Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which the Facility reduces generation or Facility Energy from the Facility pursuant to a Curtailment Order; provided that the Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
Day-Ahead Market” has the meaning set forth in the CAISO Tariff.
Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff.
Deemed Delivered Energy” means the amount of Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Points, but that is not produced by the Facility during a Curtailment Period, which amount shall be equal to the most recent forecast provided by the Approved Forecast Vendor for the period of time during the Curtailment Period, less the amount of Energy delivered to the Delivery Points during the Curtailment Period where such delivery is permissible under this Agreement; provided that, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0). For the avoidance of doubt, in no event shall the Deemed Delivered Energy exceed the Maximum Capacity multiplied by the duration, in hours, of the Curtailment Period.
Defaulting Party” has the meaning set forth in Section 11.1(a).
Deficient Month” has the meaning set forth in Section 4.10(e).
Delivery Points” has the meaning set forth in Exhibit A.
Delivery Term” shall mean the period of Contract Years set forth on the Cover Sheet beginning on the Delivery Term Start Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
Delivery Term Start Date” has the meaning set forth on the Cover Sheet.
Disclosing Party” has the meaning set forth in Section 18.2.
Early Termination Date” has the meaning set forth in Section 11.2(a). 6 Effective Date” has the meaning set forth in the Preamble.
Electrical Losses” means all transmission or transformation losses between each portion of the Facility and the applicable Delivery Point corresponding to such portion of the Facility, including losses associated with delivery of Energy to the Delivery Points, calculated in accordance with CAISO approved methodologies applicable to revenue metering.
Eligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12( e) and California Public Resources Code Section 25741( a), as either code provision is amended or supplemented from time to time.
Energy” means electrical energy generated by the Facility, which shall be measured in megawatt-hours (MWh), unless otherwise specified.
Energy Price” means seventy- five dollars and eighty- five cents ($ 75.85) per MWh.
Energy Supply Bid” has the meaning set forth in the CAISO Tariff.
Event of Default” has the meaning set forth in Section 11.1.
Excess MWh” has the meaning set forth in Exhibit C.
Expected Energy” means the quantity of Energy that Seller expects to be able to deliver to Buyer from the Facility during each Contract Year, which is the quantity specified on the Cover Sheet for each Contract Year, as may be modified pursuant to Section 4.6(c).
Facility” has the meaning described on the Cover Sheet and in Exhibit A.
Facility Energy” means the Energy during any Settlement Interval or Settlement Period, net of Electrical Losses and Station Use, as measured by the Facility Meters, which Facility Meters will be adjusted in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use.
Facility Meters” means the CAISO Approved Meters that will measure all Facility Energy from each portion of the Facility.
FERC” means the Federal Energy Regulatory Commission or any successor government agency.
Fifteen Minute Market” or “FMM” has the meaning set forth in the CAISO Tariff.
FMM LMP” means, for each Settlement Interval, the LMP for such Settlement Interval in the Fifteen Minute Market.
Force Majeure Event” has the meaning set forth in Section 10.1. 7 Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Energy or making Facility Energy available at one or more of the Delivery Points and that is not the result of a Force Majeure Event.
Forward Certificate Transfers” has the meaning set forth in Section 4.10(a).
Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff.
Future Environmental Attributes” shall mean any and all emissions, air quality or other environmental attributes ( other than Green Attributes or Renewable Energy Incentives) under the RPS regulations or under any and all other international, federal, regional, state or other law, rule, regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision, program (including any voluntary compliance or membership program), competitive market or business method ( including all credits, certificates, benefits, and emission measurements, reductions, offsets and allowances related thereto) that are attributable, now, or in the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include ( i) any energy, capacity, reliability or other power attributes from the Facility, or (ii) investment tax credits or production tax credits associated with the construction or operation of the Facility, or other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation.
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 Contract Term, determined in a commercially reasonable manner. 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 NonDefaulting 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, settlement prices for comparable transactions at liquid trading hubs (e.g., SP15 Trading Hub), all of which should be calculated for the remaining Contract Term, and include the value of Green Attributes and Capacity Attributes.
Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO; provided, however, that Governmental Authority” shall not in any event include any Party.
Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: ( 1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides ( SOx), nitrogen oxides ( NOx), carbon monoxide ( CO) and other pollutants; ( 2) any avoided emissions of carbon dioxide ( CO2), methane ( CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases ( GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or 8 otherwise by law, to contribute to the actual or potential threat of altering the Earth’ s climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, ( ii) production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (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 ( iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating or air quality permits. If the Facility is a biomass or landfill gas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility.
Green Tag Reporting Rights” means the right of a purchaser of renewable energy to report ownership of accumulated “ green tags” in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under Section 1605( b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules.
Guaranteed Capacity” means the guaranteed amount of generating capacity of the Facility, as measured in MW at the Delivery Points, set forth on the Cover Sheet, as may be modified pursuant to Section 4.6(c).
Guaranteed Energy Production” means an amount, as measured in MWh, equal to the product of the Guaranteed Energy Production Percentage and the total Expected Energy for the applicable Performance Measurement Period.
Guaranteed Energy Production Percentage” means eighty percent (80%).
Guidebook” means the most- recent Renewables Portfolio Standard Eligibility guidebook issued by the CEC, as amended from time to time, or its successor document.
Imbalance Energy” means the amount of energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
Indemnifiable Loss(es)” has the meaning set forth in Section 16.1.
Indemnified Group” has the meaning set forth in Section 16.1.
Integrated Forward Market” or “IFM” has the meaning set forth in the CAISO Tariff. 9 Interconnection Agreements” means the interconnection agreements entered into by Seller pursuant to which the Facility is interconnected with the Transmission System, and pursuant to which Seller’ s Interconnection Facilities and any other Interconnection Facilities will be operated and maintained during the Contract Term.
Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreements.
Interest Rate” has the meaning set forth in Section 8.2.
Investment Grade Credit Rating” means a Credit Rating of BBB- or higher by S& P or Fitch or Baa3 or higher by Moody’ s.
ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code of 1986.
kWh” means a kilowatt- hour measured in alternating current, unless expressly stated in terms of direct current.
Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
Lender” means, collectively, any Person ( i) providing senior or subordinated construction, interim, back leverage or long- term debt, tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Facility, whether that financing or refinancing takes the form of private debt ( including backleverage debt), public debt, tax equity or any other form ( including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any Person directly or indirectly providing financing or refinancing for the Facility, and any trustee or agent or similar representative acting on their behalf, ( ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations or (iii) participating in a lease financing ( including a sale leaseback or leveraged leasing structure) with respect to the Facility.
Letter( s) of Credit” means one or more irrevocable, standby letters of credit that shall be i) substantially in the form attached hereto as ExhibitK, or in an alternate form proposed by Seller, subject to Buyer’ s prior approval, which shall not be unreasonably withheld; and ( ii) issued by a U.S. bank (not a domestic branch of a foreign bank) that maintains a long-term debt rating of at least A- (or equivalent) from at least two of the following rating agencies – Moody’ s, S& P, or Fitch – or, if only one rating is available, a rating of at least AA- (or equivalent).
Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California.
Limited Buyer Assignee” has the meaning set forth in Section 14.1(b). 10 Local Capacity Area Resource” has the meaning set forth in the CAISO Tariff.
Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff.
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 Contract Term, determined in a commercially reasonable manner. 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, settlement prices for comparable transactions at liquid trading hubs ( e.g., SP15 Trading Hub), all of which should be calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes, and Renewable Energy Incentives.
Lost Output” has the meaning set forth in Section 4.7.
Market Curtailment Event” means the period of time, as measured using current Settlement Intervals, during which the LMP at either Delivery Point, whether in the Day-Ahead Market, FMM, or Real- Time Market, is less than the Price Floor; provided that the Market Curtailment Event shall be inclusive of the time required for the Facility to ramp down and ramp up.
Market Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller actually reduces generation of Energy during a Market Curtailment Event.
Market Value of Replacement Green Attributes” has the meaning set forth in Exhibit G.
Maximum Capacity” means the maximum amount of generating capacity of the Facility, as measured in MW at the Delivery Points, set forth on the Cover Sheet.
Monthly Delivery Forecast” has the meaning set forth in Section 4.3(b).
Moody’s” means Moody’ s Investors Service, Inc., or its successors.
MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
MWh” means megawatt- hour measured in alternating current, unless expressly stated in terms of direct current.
NERC” means the North American Electric Reliability Corporation or any successor entity performing similar functions.
Net Qualifying Capacity” or “ NQC” has the meaning set forth in the CAISO Tariff. 11 Non- Defaulting Party” has the meaning set forth in Section 11.2.
Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail).
Notice of Claim” has the meaning set forth in Section 16.2.
Operating Restrictions” means those rules, requirements, and procedures set forth on Exhibit Q.
Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and associated facilities or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is set forth in Exhibit A.
Party” or “ Parties” has the meaning set forth in the Preamble.
Performance Measurement Period” means each two (2) consecutive Contract Years commencing with the first Contract Year so that the first Performance Measurement Period shall include Contract Years 1 and 2. For the avoidance of doubt, Performance Measurement Periods shall overlap, so that if the first Performance Measurement Period is comprised of Contract Years 1 and 2, the second Performance Measurement Period shall be comprised of Contract Years 2 and 3, the third Performance Measurement Period shall be comprised of Contract Years 3 and 4, and so on; provided, however, that a new Performance Measurement Period shall begin following any Performance Measurement Period for which Seller pays any liquidated damages or provides any Replacement Product under Section 4.7. Thus, for example, if Seller pays any liquidated damages or provides any Replacement Product under Section 4.7 for the Performance Measurement Period that is comprised of Contract Years 4 and 5, the next Performance Measurement Period shall be comprised of Contract Years 6 and 7.
Performance Security” means a Letter of Credit in the amount specified for the Performance Security on the Cover Sheet.
Permitted Transferee” means (i) any Affiliate of Seller or (ii) any entity that satisfies, or is controlled by another Person that satisfies, the following requirements:
a) A tangible net worth of not less than seventy-five million dollars ($75,000,000) or an Investment Grade Credit Rating;
b) At least three ( 3) years of experience in the ownership and operations of power generation facilities similar to the Facility within the last six (6) years, or has retained a third- party with such experience to operate the Facility; and
c) The entity and any Affiliates are not in active litigation with Buyer. 12 Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
Planned Outage” has the meaning set forth in Section 4.6(a).
PNode” has the meaning set forth in the CAISO Tariff.
Portfolio Content Category 1” or “ PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
Price Floor” means zero dollars per MWh ($0/MWh) or such lesser amount as specified by Buyer to Seller in writing, provided that such lesser amount specified by Buyer will not apply until the first day of the first calendar month commencing at least ten (10) Business Days after delivery of Buyer’ s notice. For the avoidance of doubt, the Price Floor will be a single value that applies for the entire calendar month.
Product” has the meaning set forth on the Cover Sheet.
Prudent Operating Practice” means ( a) the applicable practices, methods and acts required by or consistent with applicable Laws and reliability criteria, and otherwise engaged in or approved by a significant portion of the electric utility and independent power producer industry during the relevant time period with respect to grid-interconnected, utility- scale wind- powered generating facilities in the Western United States, or (b) any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the industry with respect to grid-interconnected, utility-scale wind-powered generating facilities in the Western United States. Prudent Operating Practice includes compliance with applicable Laws, applicable reliability criteria, and the criteria, rules and standards promulgated in the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules and standards of any successor organizations.
PTC” or “ Production Tax Credit” means the production tax credit established pursuant to Section 45 of the United States Internal Revenue Code of 1986, as it may be amended or supplemented from time to time.
Qualifying Capacity” has the meaning set forth in the CAISO Tariff. 13 RA Credit” means ( a) for the month of February 2026, twenty- three thousand three hundred forty-one dollars and twenty cents ($23,341.20), and (b) for the month of March 2026, fifty-two thousand three hundred thirty-four dollars and twenty cents ($ 52,334.20).
RA Deficiency Amount” means the liquidated damages payment that Seller shall pay to Buyer for an applicable RA Shortfall Month as calculated in accordance with Section 3.8(b).
RA Guarantee Date” means April 1, 2026.
RA Shortfall Month” means, for purposes of calculating an RA Deficiency Amount under Section 3.8(b), any month commencing after the RA Guarantee Date for which the Net Qualifying Capacity of the Facility for such month that was eligible to be shown on the Supply Plan (as defined in the CAISO Tariff) for the Facility was less than the Qualifying Capacity of the Facility for such month due to ( a) the Facility not having achieved Full Capacity Deliverability Status, ( b) a Planned Outage, ( c) a Forced Facility Outage, and ( d) the CAISO’s reduction in Facility NQC due to the Facility’ s actual historical Forced Facility Outage rate ( i.e., past performance) (such difference, the “RA Shortfall”).
Real- Time Imbalance Energy Offset” has the meaning set forth in the CAISO Tariff.
Real-Time Instructed Imbalance Energy” or “RTIIE” has the meaning set forth in the CAISO Tariff.
Real-Time Market” or “RT” has the meaning set forth in the CAISO Tariff.
Real- Time Uninstructed Imbalance Energy” or “ RTUIE” has the meaning set forth in the CAISO Tariff.
Renewable Energy Credit” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.
REC Price” has the meaning set forth in Exhibit C.
Receiving Party” has the meaning set forth in Section 18.2.
Renewable Energy Incentives” means: (a) all federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including credits under Sections 38, 45, 46 and 48 of the Internal Revenue Code of 1986, as amended, and the Tax Credits); ( b) any federal, state, or local grants, subsidies or other like benefits relating in any way to the Facility; and (c) any other form of incentive relating in any way to the Facility that is not a Green Attribute or a Future Environmental Attribute.
Replacement Energy” has the meaning set forth in Exhibit G.
Replacement Green Attributes” has the meaning set forth in Exhibit G.
Replacement Product” has the meaning set forth in Exhibit G. 14 Replacement RA” means Resource Adequacy Benefits, if any, equivalent to those that would have been provided by the Facility with respect to the applicable RA Shortfall Month and, to the extent that the Facility would have qualified as a Local Capacity Area Resource for such month, described as a Local Capacity Area Resource and located within the same Local Capacity Area as the Facility.
Requestor” has the meaning set forth in Section 18.5.
Resource Adequacy Benefits” means the rights and privileges attached to the Facility now or existing in the future that satisfy any entity’ s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and includes any local, zonal or otherwise locational attributes associated with the Facility, in addition to flex attributes.
Resource Adequacy Rulings” means all CPUC and CAISO rulings and decisions governing resource adequacy that are currently in effect and applicable to the performance of this Agreement and any future ruling or decision, or any other resource adequacy Law, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Delivery Term.
S& P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of S& P Global Inc.) or its successor.
Schedule” has the meaning set forth in the CAISO Tariff, and “ Scheduled” has a corollary meaning.
Scheduled Energy” means the Facility Energy that clears under the applicable CAISO market based on the final Day- Ahead Schedule, FMM Schedule ( as defined in the CAISO Tariff), or any other financially binding Schedule, market instruction or dispatch forthe Facility for a given period of time implemented in accordance with the CAISO Tariff.
Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “ Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
Security Interest” has the meaning set forth in Section 8.9.
Self- Schedule” has the meaning set forth in the CAISO Tariff.
Seller” has the meaning set forth on the Cover Sheet.
Seller’ s WREGIS Account” has the meaning set forth in Section 4.10(a).
Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. Ifthe Non- Defaulting Party’ s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non- Defaulting Party’ s Gains exceed its Costs and Losses, then the Settlement Amount shall 15 be zero dollars ($ 0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages.
Settlement Interval” has the meaning set forth in the CAISO Tariff.
Settlement Period” has the meaning set forth in the CAISO Tariff.
Shared Facilities” means the gen- tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy from the Facility ( which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreements, that are used in common with third parties.
Site” means the real property on which the Facility is or will be located, as further described in Exhibit A.
SP15 Trading Hub” means the Existing Zone Generation Trading Hub (as defined in the CAISO Tariff) for the SP15 Existing Zone ( as defined in the CAISO Tariff).
Standard Months” means all calendar months that are not Summer Months.
Station Use” means:
a) The Energy produced by the Facility that is used within the Facility to power the lights, motors, control systems and other electrical loads that are necessary for operation of the Facility; and
b) The Energy produced by the Facility that is consumed within the Facility’ s electric energy distribution system as losses.
System Emergency” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, ( ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) to preserve Transmission System reliability.
Summer Months” means July, August, and September.
Tax” or “ Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/ export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto.
Tax Credits” means the PTC, ITC and any other state, local or federal production tax credit, depreciation benefit, tax deduction or investment tax credit specific to the production of renewable energy or investments in renewable energy facilities. 16 Terminated Transaction” has the meaning set forth in Section 11.2(a).
Termination Payment” has the meaning set forth in Section 11.3.
Transmission Provider” means any entity or entities transmitting or transporting the Facility Energy on behalf of Seller or Buyer to or from the Delivery Points.
Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service within the CAISO grid from the Delivery Points.
Ultimate Parent” means Terra-Gen, LLC, a Delaware limited liability company.
Variable Energy Resource” or “ VER” has the meaning set forth in the CAISO Tariff.
WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
WREGIS Certificate Deficit” has the meaning set forth in Section 4.10(e).
WREGIS Certificates” has the same meaning as “ Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
WREGIS Operating Rules” means the most-recent operating rules and requirements adopted by WREGIS, as subsequently amended, supplemented or replaced ( in whole or in part) from time to time.
1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; c) the words “ hereof”, “ herein”, and “ hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
e) a reference to a document or agreement, including this Agreement means such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, 17 supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
f) a reference to a Person includes that Person’ s successors and permitted assigns;
g) the term “ including” means “ including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
j) references to any amount of money shall mean a reference to the amount in United States Dollars;
k) words, phrases or expressions not otherwise defined herein that ( i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
l) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
ARTICLE 2
TERM; CONDITIONS PRECEDENT
2.1 Contract Term.
a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“ Contract Term”); provided, however, that Buyer’ s obligations to pay for or accept any Product are subject to Seller’ s completion of the conditions precedent pursuant to Section 2.2.
b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality 18 obligations of the Parties under Article 18 and all indemnity and audit rights shall remain in full force and effect for two (2) years following the termination of this Agreement.
2.2 Conditions Precedent. The Delivery Term shall not commence until Seller has delivered the Performance Security to Buyer in accordance with Section 8.8.
ARTICLE 3
PURCHASE AND SALE
3.1 Purchase and Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term, Buyer will purchase and receive all of the Product produced by or associated with the Facility at the Contract Price and in accordance with Exhibit C, and Seller shall supply and deliver to Buyer all of the Product produced by or associated with the Facility. At its sole discretion, Buyer may during the Delivery Term re-sell or use for another purpose all or a portion of the Product, provided that no such re-sale or use shall relieve Buyer of any obligations hereunder. Subject to Buyer’ s obligation to purchase Product in accordance with this Section 3.1 and Exhibit C, Buyer has no obligation to purchase from Seller any Product for which the associated Facility Energy is not or cannot be delivered to a Delivery Point as a result of an outage of the Facility, a Force Majeure Event, or a Curtailment Order.
3.2 Sale of Green Attributes. During the Delivery Term, subject to the terms and conditions of this Agreement, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all Green Attributes attributable to the Facility Energy generated by the Facility.
3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period the amount of Facility Energy may deviate from the amount of energy scheduled with the CAISO.
Subject to Seller’ s obligations under Exhibit C, Section ( g)(ii), to the extent there are such deviations, any costs or revenues from such imbalances shall be solely for the account of Seller.
3.4 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’ s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.
3.5 Future Environmental Attributes.
a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Seller shall promptly notify Buyer upon becoming aware of the existence of any such Future Environmental Attributes. Subject to the final sentence of this Section
3.5(a), and Section 3.5(b), in such event, if Buyer elects to receive Future Environmental Attributes 19 by providing written notice to Seller, Buyer shall bear all costs and risks associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’ s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to bear any costs, losses or liability, or alter the Facility or the operation of the Facility, unless the Parties have agreed on all necessary terms and conditions relating to such alteration or change in operation and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration or change in operation.
b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and ( ii) appropriate allocation of any additional costs to Buyer, as set forth above (in any event subject to Section 3.12); provided, that the Parties acknowledge and agree such terms are not intended to alter the other material terms of this Agreement.
3.6 Pre-Delivery Term Product. Prior to the Delivery Term Start Date, (a) Buyer will have no obligation to purchase any portion of the Product, and ( b) Seller will have the right to sell all or any portion of the Product, including any Facility Energy, to one or more third parties and retain all resulting revenue.
3.7 Capacity Attributes.
a) Commencing on the RA Guarantee Date and throughout the remainder of the Delivery Term, subject to Section 3.12, Seller grants, pledges, assigns and otherwise commits to Buyer all the Capacity Attributes from the Facility. Prior to the RA Guarantee Date, Seller shall not provide Buyer the Resource Adequacy Benefits from the Facility, and Seller may sell all or any portion of the Capacity Attributes and Resource Adequacy Benefits to one or more third parties and retain all associated revenue.
b) Commencing on the RA Guarantee Date and throughout the remainder of the Delivery Term, Seller shall use commercially reasonable efforts to maintain eligibility for Full Capacity Deliverability Status for the Facility from the CAISO and shall perform all actions necessary to ensure that the Facility qualifies to provide Resource Adequacy Benefits to Buyer.
Commencing on the RA Guarantee Date and throughout the remainder of the Delivery Term, Seller hereby covenants and agrees to transfer all of the Resource Adequacy Benefits to Buyer. c) Commencing on the RA Guarantee Date and throughout the remainder of the Delivery Term, Seller shall take all commercially reasonable administrative actions, including complying with all applicable registration and reporting requirements, and execute all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement.
20 3.8 Resource Adequacy Failure.
a) RA Deficiency Determination. For each RA Shortfall Month, Seller shall pay to Buyer the RA Deficiency Amount as liquidated damages or provide Replacement RA, in each case, as the sole and exclusive remedy for the Capacity Attributes Seller failed to convey to Buyer.
b) RA Deficiency Amount Calculation. Commencing on the RA Guarantee Date, for each RA Shortfall Month, Seller shall pay to Buyer an amount ( the “ RA Deficiency Amount”) determined as follows:
i) For all Standard Months: the RA Shortfall for such month, multiplied by the CPM Price; and
ii) For all Summer Months: determined by averaging quotes provided from three (3) unaffiliated brokers provided by Seller; provided, however, that if three (3) such broker quotes are not available to Seller after making commercially reasonable efforts to obtain such quotes, then the RA Deficiency Amount shall be determined by averaging quotes provided by Seller from two (2) unaffiliated brokers; provided further that if two (2) such broker quotes are not available to Seller after making commercially reasonable efforts to obtain such quotes, then the RA Deficiency Amount shall be $60/kW-month.
c) Alternatives to RA Deficiency Payment. As an alternative to paying the RA Deficiency Amount, Seller may provide Replacement RA in the amount of the RA Shortfall with respect to such month, provided that Seller notifies Buyer in a written notice substantially in the form of Exhibit M at least seventy- five ( 75) days before the applicable CAISO operating month for the purpose of monthly RA reporting and such notice includes all applicable Replacement RA product information.
3.9 CEC Certification and Verification. Subject to Section 3.12, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to maintain CEC Certification and Verification throughout the Delivery Term, including compliance with all requirements for certified facilities set forth in the Guidebook that are applicable to the Facility. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’ s application for CEC Certification and Verification.
3.10 [ Reserved].
3.11 RPS Standard Terms and Conditions.
a) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.
b) Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource; and ( ii) the Facility’ s electrical energy output 21 delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used best efforts to comply with such change in law. The term “ best efforts” as used in this Section 3.11(b) means efforts consistent with and subject to Section 3.12. c) Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the RPS. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used best efforts to comply with such change in law. The term “ best efforts” as used in this Section
3.11(c) means efforts consistent with and subject to Section 3.12.
3.12 Compliance Expenditure Cap.
a) If a change in Laws occurring after the Effective Date has increased Seller’s known or reasonably expected costs to comply with Seller’ s obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’ s use of (as applicable) any Product then the Parties agree that the maximum aggregate amount of out-of-pocket costs and expenses (“ Compliance Costs”) Seller shall be required to bear during the Delivery Term to comply with all of such new obligations triggered by the change in Laws shall be capped at fifty thousand dollars ($50,000) per MW of Guaranteed Capacity (“ Compliance Expenditure Cap”).
Seller’ s internal administrative costs associated with obtaining, maintaining, conveying or effectuating, Buyer’s use of ( as applicable) any Product are excluded from the Compliance Expenditure Cap.
b) Any actions required for Seller to comply with its obligations set forth in the first paragraph above, the Compliance Costs of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “ Compliance Actions.” c) If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance Expenditure Cap in order to take any Compliance Action Seller shall provide Notice to Buyer of such anticipated Compliance Costs. d) If the Compliance Costs exceed the Compliance Expenditure Cap, then Buyer will have sixty ( 60) days to evaluate such Notice ( during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time: (1) agree to reimburse Seller for all or some portion of the Compliance Costs that exceed the Compliance Expenditure Cap ( such Buyer-agreed upon costs, the “ Accepted Compliance Costs”), or (2) waive Seller’ s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. If Buyer does not respond to a Notice given by Seller under this Section 3.12 within sixty ( 60) days after Buyer’ s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Notice, and Seller shall have no further obligation to take, and no liability for any failure to take, these Compliance Actions for the remainder of the Contract Term. If Buyer agrees to pay for all or a portion of the Accepted Compliance Costs, then Seller shall take such 22 Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for its share of the Accepted Compliance Costs in accordance with the payment terms hereunder.
ARTICLE 4
OBLIGATIONS AND DELIVERIES
4.1 Delivery.
a) Energy. Subject to the provisions of this Agreement, commencing on the Delivery Term Start Date and through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Points, and Buyer shall take delivery of the Product at the Delivery Points in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Points, including without limitation, Station Use, Electrical Losses, and any operation and maintenance charges imposed on Seller by the Transmission Provider directly relating to the Facility’s operations. Buyer shall be responsible for all costs, charges and penalties, if any, imposed in connection with the delivery of Facility Energy at and after the Delivery Points, including without limitation transmission costs and transmission line losses. The Facility Energy will be scheduled with the CAISO by Seller ( or Seller’ s designated Scheduling Coordinator for the Facility) in accordance with Exhibit D. b) Green Attributes. All Green Attributes associated with the Facility Energy during the Delivery Term are exclusively dedicated to and will be conveyed to Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility Energy, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.
4.2 Title and Risk of Loss.
a) Energy. Title to and risk of loss related to the Facility Energy, shall pass and transfer from Seller to Buyer at the Delivery Points. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. b) Green Attributes. Title to and risk of loss related to the Green Attributes associated with the Facility Energy shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.
4.3 Forecasting. Seller shall provide the forecasts described below at its sole expense and in a format reasonably acceptable to Buyer (or Buyer’s designee). Seller shall use reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practices, including CAISO requirements applicable to projects similar to the Facility.
a) Annual Forecast of Energy. No less than forty- five (45) days before ( i) the first day of the first Contract Year of the Delivery Term and (ii) the beginning of each calendar 23 year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer and the SC for the Facility (if applicable) a non-binding forecast of each month’s average-day expected Energy, by hour, for the following calendar year in a form substantially similar to the table found in Exhibit F-1, or as reasonably requested by Buyer. b) Monthly Forecast of Energy and Available Generating Capacity. No less than thirty (30) days before the Delivery Term Start Date, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and the SC for the Facility (if applicable) a non-binding forecast of the hourly expected Energy and Available Generating Capacity for each day of the following month in a form substantially similar to the table found in Exhibit F-2 (“Monthly Delivery Forecast”). c) CAISO Tariff Requirements. To the extent such obligations are applicable to the Facility, Seller will comply with all applicable obligations for Variable Energy Resources under the CAISO Tariff and the Eligible Intermittent Resource Protocol.
4.4 [ Reserved].
4.5 [ Reserved].
4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section 3.1 or Exhibit G:
a) Facility Maintenance. Subject to providing Buyer one-hundred twenty 120) days’ prior Notice, Seller shall be permitted to reduce deliveries of Product during any period of scheduled maintenance on the Facility, provided, that (i) no notice is required for scheduled maintenance or any changes or extensions thereto which do not result in a shutdown of more than ten percent (10%) of the Maximum Capacity, and (ii) Seller may adjust the dates of any scheduled maintenance with fewer than one hundred and twenty ( 120) days’ prior Notice to Buyer so long as (X) Seller makes its request more than seven (7) days prior to the expected start date of such scheduled maintenance and ( Y) the requested alternate date is otherwise acceptable to Buyer.
Buyer will be under no obligation to agree to the requested alternate date. To the extent notice is not already required under the terms hereof, Seller shall notify Buyer as soon as practicable of any extensions to scheduled maintenance and expected end dates thereof. Between June 1st and September 30th, Seller shall not schedule non- emergency maintenance that reduces the Energy generation of the Facility by more than ten percent (10%), unless (1) such outage is required to avoid damage to the Facility, ( 2) such maintenance is necessary to maintain equipment warranties and cannot be scheduled outside the period of June 1st to September 30th, ( 3) such outage is required in accordance with Prudent Operating Practices, or ( 4) the Parties agree otherwise in writing (each scheduled maintenance permitted under this clause (a) and each of the foregoing outages described in foregoing clauses ( a)( 1) – (a)( 4), a “ Planned Outage”). Prior to October 1 of each year, Seller shall provide Buyer with a scheduled of anticipated Planned Outages for the following calendar year.
b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration ( if known) of any Forced Facility Outage. Seller will notify Buyer of any Critical 24 Component Failure within ten ( 10) days after the initial occurrence thereof and will inform Buyer on no less than a monthly basis of the efforts being made by Seller to resolve the issue. c) Wind Turbine Generator Failure.
i) If any of the wind turbine generators ( or components thereof) comprising the Facility experience a substantial failure, and Seller determines it is not commercially reasonable, taking into account the remaining Delivery Term, to undertake repair or replacement of such wind turbine generator( s) ( or components thereof), then, promptly after Seller makes such determination, Seller shall provide notice to Buyer of such determination, the amount of affected capacity ( the “ Capacity Reduction”), and the revised Guaranteed Capacity and Expected Energy as determined pursuant to the following sentence; provided, however, that the revised Guaranteed Capacity after any Capacity Reduction must be at least 15 MW. Upon delivery of Seller’s notice, for the remainder of the current Contract Year and all remaining Contract Years x) the Guaranteed Capacity shall be automatically reduced without further action of the Parties to an amount equal to (A) the Guaranteed Capacity in effect prior to Seller’ s notice, minus (B) the Capacity Reduction set forth in Seller’ s notice, and ( y) the Expected Energy shall be automatically reduced without further action of the Parties to an amount equal to the product of (A) the Expected Energy in effect prior to Seller’ s notice, and ( B) the quotient of the revised Guaranteed Capacity determined pursuant to the foregoing clause (x), divided by the Guaranteed Capacity in effect prior to Seller’ s notice; provided that the Expected Energy for the Contract Year in which Seller’ s notice is delivered will be the time-weighted average of the Expected Energy in effect for such Contract Year prior to and after the reduction set forth in this Section 4.6(c)(i). ii) If at any time during the Delivery Term, Seller replaces or refurbishes a wind turbine generator for which there was a Capacity Reduction, Seller shall provide notice to Buyer of such replacement or refurbishment, and the amount of affected capacity (the Replacement Capacity”); provided that the Replacement Capacity cannot exceed the amount of the Capacity Reduction for the wind turbine generator(s) that Seller proposes to replace or refurbish without the written consent of Buyer, in Buyer’ s sole discretion. The revised Guaranteed Capacity, Maximum Capacity, and Expected Energy shall be determined as follows: upon delivery of Seller’ s notice that such wind turbine generator has been replaced or refurbished, and upon Buyer’s consent, if applicable, for the remainder of the current Contract Year and all remaining Contract Years ( x) the Guaranteed Capacity shall be automatically increased without further action of the Parties to an amount equal to the lesser of (1) (A) the Guaranteed Capacity in effect prior to Seller’ s notice, plus ( B) the Replacement Capacity set forth in Seller’ s notice, and ( 2) the Guaranteed Capacity as set forth in this Agreement as of the Effective Date; ( y) the Maximum Capacity shall be automatically increased without further action of the Parties to an amount equal to one hundred and five percent (105%) of the revised Guaranteed Capacity determined pursuant to clause ( x); and ( z) the Expected Energy shall be automatically increased without further action of the Parties to an amount equal to the product of (A) the Expected Energy in effect prior to Seller’ s notice, and ( B) the quotient of the revised Guaranteed Capacity determined pursuant to the foregoing clause ( x), divided by the Guaranteed Capacity in effect prior to Seller’ s notice; provided that the Expected Energy for the Contract Year in which Seller’ s notice is delivered will be the time-weighted average of the Expected Energy in effect for such Contract Year prior to and after the reduction set forth in this Section 4.6(c)(ii). 25 iii) At the time of Seller’ s notice to Buyer of Replacement Capacity, Seller may propose to increase the Expected Energy beyond what is calculated pursuant to Section
4.6(c)(ii) for the remainder of the current Contract Year and all remaining Contract Years, subject to Buyer’s approval in its sole discretion. Upon Buyer’s approval, the Expected Energy shall be automatically increased to the values proposed by Seller without further action of the Parties. d) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product ( i) during any period of System Emergency, ( ii) pursuant to a Curtailment Order, (iii) during a Market Curtailment Period, (iv) during any period when the LMP in the Real Time Market is less than the Price Floor ( provided, that Seller shall not reduce the Facility Energy, pursuant to this clause (iv), below the amount of the Day-Ahead Schedule), v) during any Force Majeure Event, ( vi) due to Prudent Operating Practice or ( vii) otherwise pursuant to the terms of this Agreement, the Interconnection Agreements or the applicable tariff including the CAISO Tariff) or as may be required under a Shared Facilities Agreement. e) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
f) Buyer Default. Seller shall be permitted to reduce deliveries of Product during any period in which there is Buyer Default that has not been cured by any applicable cure period.
g) Market Curtailment Event. Seller shall be permitted, but not obligated, in its sole discretion to reduce deliveries of Product during any Market Curtailment Event. h) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2. i) Payments. Seller shall remain responsible to Buyer for any payment or penalty otherwise due under this Agreement as a result of a reduction in delivery of Product.
4.7 Guaranteed Energy Production. Seller shall be required to deliver to Buyer no less than the Guaranteed Energy Production in each Performance Measurement Period. Seller shall be excused from achieving the Guaranteed Energy Production during any Performance Measurement Period only to the extent of any Force Majeure Events, System Emergency, Buyer’ s Default or other failure to perform, Curtailment Periods, and/ or Market Curtailment Periods. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, in addition to the Facility Energy delivered by Seller during the applicable Performance Measurement Period, Seller shall be deemed to have delivered to Buyer (1) any Deemed Delivered Energy, ( 2) Energy in the amount it could reasonably have delivered to Buyer but was prevented from delivering to Buyer by reason of any Force Majeure Events, System Emergency, Buyer Default or other failure to perform, and Curtailment Periods (“ Lost Output”). If Seller fails to achieve the Guaranteed Energy Production amount in any Performance Measurement Period, Seller shall pay Buyer damages calculated in accordance with Exhibit G; provided that Seller may, as an alternative, provide Replacement Product (as defined in Exhibit G) delivered to the PNode corresponding to the electric generating facility producing such Replacement Product within ninety (90) days after the conclusion of the applicable Performance Measurement Period. On a day 26 ahead basis, Seller shall provide a notice via e-mail to Buyer’ s “ scheduling” contact identified in Exhibit N identifying the electric generating facility(ies) that will provide Replacement Product for the following day and the volume of Replacement Product to be provided by each such facility, which may be expressed as a percentage of the applicable facility’s output. Buyer will pay Seller for all such Replacement Product pursuant to Exhibit C.
4.8 [ Reserved].
4.9 [ Reserved].
4.10 WREGIS. Seller shall, at its sole expense, but subject to Section 3.12, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’ s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shal l comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. In addition:
a) Prior to the Delivery Term Start Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“ Seller’ s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “ Forward Certificate Transfers” ( as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“ Buyer’ s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’ s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’ s WREGIS Account to Buyer’ s WREGIS Account.
b) Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Facility Energy generated, any fractional MWh amounts ( i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate.
c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month as evidenced by the Facility’ s metered data.
d) [ Reserved]
e) A “ WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month (“ Deficient Month”) caused by an error or omission of Seller. If any WREGIS Certificate Deficit is caused, or is the result of any action or inaction by Seller, then the amount of Facility Energy in the Deficient Month shall be reduced by the amount of the WREGIS 27 Certificate Deficit for purposes of calculating Buyer’ s payment to Seller under Article 8 and the Guaranteed Energy Production for the applicable Contract Year; provided, however, that such adjustment shall not apply to the extent that Seller either ( x) resolves the WREGIS Certificate Deficit within ninety (90) days after WREGIS Certificates are created for the Deficient Month or y) provides Replacement Product delivered as described in Section 4.7, except that Buyer will not be required to make any payment for such Replacement Product. Without limiting Seller’s obligations under this Section 4.10, if a WREGIS Certificate Deficit is caused solely by an error or omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission.
f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.10 after the Effective Date, the Parties promptly shall modify this Section 4.10 as reasonably required to cause and enable Seller to transfer to Buyer’ s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Facility Energy in the same calendar month.
ARTICLE 5
TAXES
5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to (i) the Facility or (ii) on or with respect to the sale and making available the Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the Delivery Points.
Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the Delivery Points (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees), if any. If a Party is required to remit or pay Taxes that are the other Party’ s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty ( 30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims itis exempt.
5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, however, that neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Product delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Product.
ARTICLE 6
MAINTENANCE OF THE FACILITY
6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.
28 6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’ s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Notice to Buyer’ s emergency contact identified on Exhibit N of such condition. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility, or suspending the supply of Energy to Buyer.
6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities, and Seller’s rights and obligations under the Interconnection Agreements, may be subject to certain shared facilities or co-tenancy agreements to be entered into among Seller, the Participating Transmission Owner, Seller’ s Affiliates, or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder and ( ii) provide for separate metering of the Facility.
ARTICLE 7
METERING AND DATA
7.1 Metering. Seller shall measure the amount of Facility Energy using the Facility Meters, which will be subject to adjustment in accordance with CAISO meter requirements and Prudent Operating Practices, including to account for Electrical Losses and Station Use. The location of the Facility Meters may be on the low side of the Facility’ s step-up transformer where there is a transformer that is shared by facilities, provided, however, that any losses as a result of such positioning will be properly accounted for as Electrical Losses. All meters will be operated pursuant to applicable CAISO- approved calculation methodologies and maintained at Seller’ s cost. Subject to meeting any applicable CAISO requirements, the meters shall be programmed to adjust for Electrical Losses and Station Use from the Facility to the Delivery Points in a manner subject to Buyer’s prior written approval, not to be unreasonably withheld. Metering will be consistent with the Metering Diagrams set forth as Exhibit R, a final version of which shall be provided to Buyer at least thirty (30) days before the Delivery Term Start Date. Each meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event Seller breaks a seal, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the CAISO meter data directly relating to the Facility and all inspection, testing and calibration data and reports. Seller and Buyer shall cooperate to allow both Parties to retrieve the meter reads from the CAISO Market Results Interface – Settlements ( MRI-S) ( or its successor) or directly from the CAISO meter( s) at the Facility.
7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’ s reasonable request, Seller shall test the meters. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter 29 is inaccurate it shall be promptly repaired or replaced. If a meter is inaccurate by more than one percent (1%) and it is not known when the meter inaccuracy commenced (if such evidence exists such date will be used to adjust prior invoices), then the invoices covering the period of time since the last meter test shall be adjusted for the amount of the inaccuracy on the assumption that the inaccuracy persisted during one- half of such period; provided, that ( a) such period may not exceed twelve (12) months and (b) such adjustments are accepted by CAISO and WREGIS.
7.3 Data. Throughout the Delivery Term, Seller shall provide Buyer:
a) On a real time basis with read-only access to Facility Energy information collected by the SCADA system for the Facility;
b) Read-only access to all CAISO certificates;
c) Read- only access to all CAISO statements; and
d) Monthly CAISO settlement quality meter data and CAISO statements in the event Buyer is unable to access this information from CAISO portal using Seller provided read - only CAISO certificates. This data shall be provided by Seller upon Buyer’ s request no later than 5 Business Days following Buyer’ s request.
ARTICLE 8
INVOICING AND PAYMENT; CREDIT
8.1 Invoicing. Seller shall make good faith efforts to deliver invoices to Buyer for Product within fifteen ( 15) Business Days after the end of each monthly billing period. Seller shall provide ( x) one invoice for amounts owed by Buyer to Seller for Facility Energy, WREGIS Certificates and Replacement Product delivered to Buyer in the prior monthly billing period ( or as soon as practicable in the case of Replacement Product, for which billing information may not be available in such month), and ( y) a separate payment advice to Buyer for the CAISO Pass- Through Amounts received by Seller due to Buyer for the month preceding the prior monthly billing period.
Each invoice shall reflect ( a) records of metered data, including CAISO metering and CAISO transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month and the CAISO Pass- Through Amounts due to Buyer in accordance with Exhibit C, Section (g)(ii), including the amount of Energy produced by the Facility as read by the Facility Meters, the amount of Replacement RA and Replacement Product delivered to Buyer (if any), the calculation of Facility Energy, Deemed Delivered Energy, Lost Output, and Adjusted Energy Production, the LMP prices at the Delivery Points for each Settlement Period, and the Contract Price applicable to such Product in accordance with Exhibit C; ( b) access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount; and (c) be in a Microsoft Excel format, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. Buyer shall, and shall cause its Scheduling Coordinator to, provide Seller with all reasonable access ( including, in real time, to the maximum extent reasonably possible) to any records, including invoices or settlement data from the CAISO, forecast data and other information, all as may be necessary from time to time for Seller to prepare and verify the accuracy of all invoices.
30 8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each monthly invoice, provided, however, that Seller will give Buyer no less than ten ( 10) days’ notice of any account change with respect to the place of payment. Buyer shall pay undisputed invoice amounts within thirty (30) days after receipt of the invoice or the end of the prior monthly billing period, whichever is later. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on the prime rate published on the date of the invoice in The Wall Street Journal, or, if The Wall Street Journal is not published on that day, the next succeeding date of publication ( the “ Interest Rate”). If the due date occurs on a day that is not a Business Day, the late payment charge shall begin to accrue on the next succeeding Business Day.
8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon ten (10) Business Days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement. Seller acknowledges that in accordance with California Government Code Section 8546. 7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of this Agreement because the compensation under this Agreement exceeds $ 10,000. Buyer shall also have the right to use an Authorized Auditor to audit all books and records of Seller necessary for billing and payments.
8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO; provided, however, that all claims for adjustments to prior invoices based upon meter inaccuracies must be made within twenty- four (24) months after the end of the period subject to correction. If the required adjustment is in favor of Buyer, Buyer’ s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due.
8.5 Billing Disputes. AParty may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twenty-four (24) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required 31 payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid.
Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twenty- four ( 24) months after the invoice is rendered or subsequently adjusted, except in the event of intentional fraud or misrepresentation by the Seller or to the extent any misinformation was from a third party not affiliated with any Party and such third party corrects its information after the twenty-four-month period. If an invoice is not rendered within twelve ( 12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.
8.6 [ Reserved].
8.7 [ Reserved].
8.8 Seller’ s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Delivery Term Start Date.
Seller shall maintain the Performance Security in full force and effect, subject to any draws made by Buyer in accordance with this Agreement, until the following have occurred: (A) the Delivery Term has expired or terminated early; and ( B) all payment obligations of the Seller then due and payable under this Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of both events, Buyer shall promptly return to Seller the unused portion of the Performance Security. If the Performance Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating set forth in the definition of Letter of Credit, or (ii) fails to honor Buyer’ s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have seven (7) Business Days to deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Performance Security. Seller may at its option exchange one permitted form of Performance Security for another permitted form of Performance Security, as applicable.
8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral . To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“ Security Interest”) in, and lien on ( and right to net against), and assignment of the Performance Security, any other cash collateral and cash equivalent collateral posted pursuant to Section 8.8 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 Buyer, and Seller agrees to take all action as Buyer reasonably requires in order to perfect Buyer’ 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 and 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 Buyer is authorized to retain all or a portion of the Performance Security, Buyer may do any one or more of the following ( in each case subject to the final sentence of this Section 8.9):
32 a) Exercise any of its rights and remedies with respect to the Performance Security, including any such rights and remedies under Law then in effect; b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Performance Security; and
c) Liquidate all Performance Security then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.
Buyer 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 Buyer after such application), subject to Buyer’ s obligation to return any surplus proceeds remaining after these obligations are satisfied in full.
ARTICLE 9
NOTICES
9.1 Addresses for the Delivery of Notices. Except as provided in Exhibit D, any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth on Exhibit N or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.
9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: ( a) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; or ( b) if sent by electronic communication (including electronic mail or other electronic means) and if concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic Notice by hand delivery or overnight courier, at the time indicated by the time stamp upon delivery; or ( c) if delivered in person, upon receipt by the receiving Party. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission.
ARTICLE 10
FORCE MAJEURE
10.1 Definition.
a) “ Force Majeure Event” means any act or event that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control 33 whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance. b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control ( whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; new epidemic or pandemic after the Effective Date; landslide; mudslide; subsidence; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; or civil disturbance.
c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include ( i) economic conditions that render a Party’ s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including an increase in component costs for any reason, including foreign or domestic tariffs, Buyer’ s ability to buy electric energy at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under this Agreement); ( ii) Seller’ s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; ( iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above that disables physical or electronic facilities necessary to transfer funds to the payee Party; (iv) a Curtailment Order; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Majeure Event; or (vi) any equipment failure except if such equipment failure is caused by a Force Majeure Event.
10.2 No Liability If a Force Majeure Event Occurs. Neither Seller nor Buyer shall be liable to the other Party in the event it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’ s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. Notwithstanding the foregoing, the occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due hereunder.
10.3 Notice. In the event of any delay or nonperformance resulting from a Force Majeure Event, the Party suffering the Force Majeure Event shall ( a) as soon as practicable, notify the other Party in writing of the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance, and ( b) notify the other Party in writing of the cessation or termination of such Force Majeure Event, all as known or estimated in good faith by the affected Party; provided, however, that a Party’ s failure to give timely Notice shall not affect such Party’s ability to assert that a Force Majeure Event has occurred unless the delay in giving 34 Notice materially prejudices the other Party. Upon request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that the delays described above did not result from Seller’ s actions or failure to take reasonable actions.
10.4 Termination Following Force Majeure Event. If a Force Majeure Event has occurred after the Delivery Term Start Date that has caused either Party to be wholly or partially unable to perform its obligations hereunder, and the impacted Party has claimed and received relief from performance of its obligations for a consecutive twelve ( 12) month period, then the nonclaiming Party may terminate this Agreement upon written Notice to the other Party with respect to the Facility experiencing the Force Majeure Event. Upon any such termination, neither Party shall have any liability to the other Party, save and except for those obligations specified in Section
2.1(b), and Buyer shall promptly return to Seller any Performance Security then held by Buyer, less any amounts drawn in accordance with this Agreement.
ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION
11.1 Events of Default. An “ Event of Default” shall mean, a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten ( 10) Business Days after Notice thereof;
ii) 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, and such default is not remedied within thirty ( 30) days after Notice thereof ( or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty ( 30) days period despite exercising commercially reasonable efforts); iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement ( except to the extent constituting a separate Event of Default set forth in this Section 11.1; and except for (1) failure to deliver Capacity Attributes, the exclusive remedies for which are set forth in Section 3.8, ( 2) failures to achieve the Guaranteed Energy Production that do not trigger the provisions of Section 11.1(b)(v), the exclusive remedies for which are set forth in Section 4.7; and ( 3) failure to transfer WREGIS Certificates, the exclusive remedies for which are set forth in Section 4.10) and such failure is not remedied within thirty (30) days after Notice thereof ( or such longer additional period, not to exceed an additional ninety ( 90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts); iv) such Party becomes Bankrupt;
v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.1 or 14.2, as applicable; or 35 vi) such 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 such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
i) if at any time, Seller delivers or attempts to deliver electric energy to the Delivery Points for sale under this Agreement that was not generated by the Facility, except for Replacement Product;
ii) [ reserved];
iii) [ reserved];
iv) if, in any consecutive six ( 6) month period after the Delivery Term Start Date, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent ( 10%) of the Expected Energy amount for such period, and Seller fails to either ( x) demonstrate to Buyer’s reasonable satisfaction, within fifteen ( 15) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent 10%) minimum; or (y) deliver to Buyer within fifteen (15) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent 10%) minimum and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Operating Practices and capable of cure within a reasonable period of time, not to exceed one- hundred eighty ( 180) days; v) if, in any two ( 2) consecutive Contract Year period during the Delivery Term, the Adjusted Energy Production amount is not at least fifty percent ( 50%) of the Expected Energy amount, provided, however, that if the Adjusted Energy Production would have been greater than fifty percent ( 50%) of the Expected Energy amount in such two ( 2) Contract Year period if the Adjusted Energy Production had included the amount of energy that could reasonably have been delivered to Buyer but was prevented from being delivered to Buyer by reason of a Critical Component Failure ( calculated in the same manner as Deemed Delivered Energy is calculated, in accordance with the definition thereof), Seller shall not be in default under this Section 11.1(b)(v) so long as (A) Seller repairs or replaces the facilities subject to the Critical Component Failure within twelve ( 12) months after the date of the occurrence thereof, and ( B) Seller has not claimed a Critical Component Failure more than twice during the Delivery Term; vi) failure by Seller to satisfy the collateral requirements pursuant to Section 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Termination Payment; 36 vii) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within seven ( 7) Business Days after Seller receives Notice of the occurrence of any of the following events:
A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least A- (or equivalent) from at least two of the following rating agencies – Moody’ s, S& P, or Fitch – or, if only one rating is available, a rating of at least AA- (or equivalent); B) the issuer of such Letter of Credit becomes Bankrupt; C) the issuer of the outstanding Letter of Credit shall fail to comply with or perform its obligations under such Letter of Credit and such failure shall be continuing after the lapse of any applicable grace period permitted under such Letter of Credit;
D) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; E) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit;
F) such Letter of Credit fails or ceases to be in full force and effect at any time; or
G) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than thirty (30) days prior to the expiration of the outstanding Letter of Credit.
11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“ NonDefaulting Party”) shall have the following rights:
a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty ( 20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“ Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages the Termination Payment calculated in accordance with Section 11.3 below; 37 c) to withhold any payments due to the Defaulting Party under this Agreement; d) to suspend performance; or
e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement;
provided, that payment by the Defaulting Party of the Termination Payment shall constitute liquidated damages and the Non- Defaulting Party’ s sole and exclusive remedy for the Terminated Transaction and the Event of Default related thereto.
11.3 Termination Payment. The Termination Payment (“ Termination Payment”) for the Terminated Transaction shall be the aggregate of all Settlement Amounts plus any or all other amounts due to or from the Non- Defaulting Party ( as of the Early Termination Date) netted into a single amount. If the Non-Defaulting Party’ s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end- users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that ( a) the actual damages that the Non-Defaulting Party would incur in connection with the Terminated Transaction would be difficult or impossible to predict with certainty, ( b) the Termination Payment described in this Section 11.3 is a reasonable and appropriate approximation of such damages, and ( c) the Termination Payment described in this Section 11.3 is the exclusive remedy of the Non-Defaulting Party in connection with the Terminated Transaction but shall not otherwise act to limit any of the Non- Defaulting Party’ s rights or remedies if the Non- Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party.
11.4 Notice of Payment of Termination Payment. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non- Defaulting Party to the Defaulting Party of the amount of the Termination Payment and whether the Termination Payment is due to or from the Non- Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment shall be made to or from the Non- Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.
11.5 Disputes With Respect to Termination Payment. Ifthe Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within five ( 5) Business Days of receipt of the Non- Defaulting Party’ s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written 38 explanation of the basis for such dispute. Disputes regarding the Termination Payment shall be determined in accordance with Article 15.
11.6 Rights And Remedies Are Cumulative. Except where an express and exclusive remedy or measure of liquidated damages is provided, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement. Any Non-Defaulting Party shall be obligated to use commercially reasonable efforts to mitigate its Costs, Losses and damages resulting from or arising out of any Event of Default of the other Party under this Agreement.
ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.
12.1 No Consequential Damages. EXCEPT TO THE EXTENT PART OF AN
EXPRESS REMEDY OR MEASURE OF DAMAGES HEREIN, PART OF A THIRD PARTY
CLAIM SUBJECT TO INDEMNIFICATION HEREUNDER, OR INCLUDED IN A
LIQUIDATED DAMAGES CALCULATION, OR ARISING FROM FRAUD OR
INTENTIONAL MISREPRESENTATION, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY,
INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST
REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF,
OR IN CONNECTION WITH THIS AGREEMENT, BY STATUTE, IN TORT OR CONTRACT.
12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET
FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND
MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF
CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO
REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’ S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 3.8, 4.7, 4.10, 11.2 AND 11.3, AND AS 39 PROVIDED IN EXHIBIT G, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN
ADEQUATE REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES
CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED
ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE
CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE
EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE
BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY
WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY
13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in the state of California and each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller. b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’ s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which any of its property is bound. d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its 40 terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. e) The Facility is located in the State of California.
f) Seller will be responsible for maintaining all permits necessary to operate the Facility.
13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
a) Buyer is a California municipal corporation, duly organized, validly existing and in good standing under the laws of the State of California, and is qualified to conduct business in the state of California and each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Buyer. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with applicable Law. b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’ s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound.
d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from ( 1) suit, ( 2) jurisdiction of court ( provided that such court is limited within a venue permitted in law and under the Agreement), (3) relief by way of injunction, order for specific performance or recovery of property, ( 4) attachment of assets, or 5) execution or enforcement of any judgment; provided, however that nothing in this Agreement 41 shall waive the obligations or rights set forth in the California Tort Claims Act (Government Code Section 810 et seq.).
f) Buyer is a “ local public entity” as defined in Section 900.4 of the Government Code of the State of California.
13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
a) It shall continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and to be qualified to conduct business in California and each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
b) It shall maintain ( or obtain from time to time as required) all regulatory authorizations, approvals and permits necessary for it to legally perform its obligations under this Agreement; and
c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.
ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments.
a) Except as provided in paragraph (b) below, neither Party may voluntarily assign this Agreement or its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any assignment made without required written consent, or in violation of the conditions to assignment set out below, shall be null and void. The assigning Party shall be responsible for the other Party’ s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any assignment of this Agreement by the assigning Party, including without limitation reasonable attorneys’ fees.
b) Subject to the provisions of this Section 14.1(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 all or a portion 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 (i) the Limited Buyer Assignee’ s timely payment of amounts due under the PPA, and (ii) the execution of an 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 shall pay Seller for any payments not timely made by the Limited Buyer Assignee, and Buyer shall remain obligated to perform all of its obligations under this Agreement notwithstanding the limited assignment. Any failure by the Limited Buyer Assignee to make payments to Seller when due hereunder shall be a Buyer Event of Default if not cured within the applicable cure period specified 42 herein. Subject to the foregoing, 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: (x) comply with Limited Buyer Assignee’ s reasonable requests for know- your- customer and similar account 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 ( y) in a timely manner negotiate in good faith the content of the assignment agreement (provided, for avoidance of doubt, Seller shall not be required to agree to any terms or conditions which are reasonably expected to have an adverse effect on Seller or its financing parties or are inconsistent with the terms of this Agreement). Any assignment by Buyer under this Section 14.1(b) shall be of no force and effect unless and until an assignment agreement has been fully executed by Seller, Buyer, and the Limited Buyer Assignee.
14.2 Collateral Assignment. Notwithstanding anything to the contrary in Section 14.1, but subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement as collateral for any financing or refinancing of the Facility. In connection with any financing or refinancing of the Facility, Buyer 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 Buyer, Seller and Lender including with respect to the provisions set forth below, with such agreement not to be unreasonably withheld, and must include, among others, the following provisions:
a) Buyer 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; provided that such notice shall be provided to Lender at the time such notice is provided to Seller and any additional cure period of Lender agreed to in the Collateral Assignment Agreement shall not commence until Lender has received notice of such Event of Default;
b) Following an Event of Default by Seller under this Agreement, Buyer may require Seller or Lender (if Lender has provided the notice set forth in subsection ( c) below) to provide to Buyer 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 Buyer may reasonably require related to the development, implementation and timetable of the cure plan.
Seller or Lender must provide the report to Buyer within ten ( 10) Business Days after Notice from Buyer requesting the report. Buyer will have no further right to require the report with respect to 43 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 Buyer before the later of (i) the expiration of any cure period under this Agreement, and (ii) five (5) Business Days after Lender’ s receipt of notice of such Event of Default from Buyer, indicating Lender’ s intention to cure. Lender must remedy or cure the Event of Default within the cure period under this Agreement and any additional cure periods agreed in the Collateral Assignment Agreement up to a maximum of ninety ( 90) days ( or one hundred eighty ( 180) days in the event of a bankruptcy of Seller or any foreclosure or similar proceeding if required by Lender to cure any Event of Default); d) Lender will have the right to consent before any termination of this Agreement which does not arise out of an Event of Default; e) Lender will receive prior Notice of and the right to approve material amendments to this Agreement, which approval will not be unreasonably withheld, delayed or conditioned;
f) If Lender, directly or indirectly, takes possession of, or title to the 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 Agreement and all related agreements subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, before such assumption, if Buyer advises Lender that Buyer will require that Lender cure ( or cause to be cured) any Event of Default existing as of the possession date and capable of cure in order to avoid the exercise by Buyer ( in its sole discretion) of Buyer’ 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;
g) If Lender elects to sell or transfer the Facility ( after Lender directly or indirectly, takes possession of, or title to the Facility), or sale of the 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 that ( i) meets the definition of Permitted Transferee and ( ii) is an entity that Buyer is permitted to contract with under applicable Law; and h) Subject to Lender’ s cure of any Events of Defaults under the Agreement in accordance with Section 14.2(f), if (i) this Agreement is rejected in Seller’ s Bankruptcy or otherwise terminated in connection therewith Lender shall have the right to elect within forty-five 45) days after such rejection or termination, to enter into a replacement agreement with Buyer having substantially the same terms as this Agreement for the remaining term thereof, and, promptly after Lender’s written request, Buyer must enter into such replacement agreement with Lender or Lender’ s designee, or ( ii) if Lender or its designee, directly or indirectly, takes 44 possession of, or title to, the Facility ( including possession by a receiver or title by foreclosure or deed in lieu of foreclosure) after any such rejection or termination of this Agreement, promptly after Buyer’ s written request which must be made within forty-five (45) days after Buyer receives notice of such rejection or termination, Lender must itself or must cause its designee to promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the remaining term thereof, provided that in the event a designee of Lender, directly or indirectly, takes possession of, or title to, the Facility ( including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), such designee must meet the definition of Permitted Transferee.
ARTICLE 15
DISPUTE RESOLUTION
15.1 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 laws. To the extent enforceable, at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement.
15.2 Venue. The Parties agree that any suit, action or other legal proceeding by or against any party (or its affiliates or designees) with respect to or arising out of this Agreement shall be brought in the federal courts of the United States or the courts of the State of California sitting in Orange County, California.
15.3 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty ( 30) days of initiating such discussions, or within forty ( 40) days after Notice of the dispute, the Parties shall submit the dispute to non-binding mediation prior to seeking any and all remedies available to it at Law in or equity, provided, however, that a dispute as to whether an Event of Default has occurred pursuant to Article 11 shall not be subject to mediation unless the Parties mutually agree. The Parties will cooperate in selecting a qualified neutral mediator selected from a panel of neutrals and in scheduling the time and place of the mediation as soon as reasonably possible, but in no event later than thirty ( 30) days after the request for mediation is made. The Parties agree to participate in the mediation in good faith and to share the costs of the mediation, including the mediator’ s fee, equally, but such shared costs shall not include each Party’s own attorneys’ fees and costs, which shall be borne solely by such Party. If the mediation is unsuccessful, then either Party may seek any and all remedies available to it at law or in equity, subject to the limitations set forth in this Agreement.
ARTICLE 16
INDEMNIFICATION
16.1 Mutual Indemnity.
a) Each Party (the “ Indemnifying Party”) agrees to defend, indemnify and 45 hold harmless the other Party, its directors, officers, agents, attorneys, employees and representatives (each an “ Indemnified Party” and collectively, the “Indemnified Group”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses, including reasonable attorneys’ and expert witness fees, for personal injury or death to Persons and damage to the property of any third party to the extent arising out of, resulting from, or caused by the negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees or agents ( collectively, “ Indemnifiable Losses”). b) Nothing in this Section shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages resulting from its sole negligence, intentional acts, or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligations to pay claims consistent with the provisions of a valid insurance policy.
16.2 Notice of Claim. Subject to the terms of this Agreement and upon obtaining knowledge of an Indemnifiable Loss for which it is entitled to indemnity under this Article 16, the Indemnified Party will promptly Notify the Indemnifying Party in writing of any damage, claim, loss, liability or expense which Indemnified Party has determined has given or could give rise to an Indemnifiable Loss under Section 16.1 (“ Claim”). The Notice is referred to as a “ Notice of Claim”. A Notice of Claim will specify, in reasonable detail, the facts known to Indemnified Party regarding the Indemnifiable Loss.
16.3 Failure to Provide Notice. A failure to give timely Notice or to include any specified information in any Notice as provided in Section 16.2 will not affect the rights or obligations of any Party hereunder except and only to the extent that, as a result of such failure, any Party which was entitled to receive such Notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially damaged as a direct result of such failure and, provided further, Indemnifying Party is not obligated to indemnify any member of the Indemnified Group for the increased amount of any Indemnifiable Loss which would otherwise have been payable to the extent that the increase resulted from the failure to deliver timely a Notice of Claim.
16.4 Defense of Claims. If, within ten (10) Business Days after giving a Notice of Claim regarding a Claim to Indemnifying Party pursuant to Section 16.2, Indemnified Party receives Notice from Indemnifying Party that Indemnifying Party has elected to assume the defense of such Claim, Indemnifying Party will not be liable for any legal expenses subsequently incurred by Indemnified Party in connection with the defense thereof; provided, however, that if Indemnifying Party fails to take reasonable steps necessary to defend diligently such Claim within ten ( 10) Business Days after receiving Notice from Indemnifying Party that Indemnifying Party believes Indemnifying Party has failed to take such steps, or if Indemnifying Party has not undertaken fully to indemnify Indemnified Party in respect of all Indemnifiable Losses relating to the matter, Indemnified Party may assume its own defense, and Indemnifying Party will be liable for all reasonable costs or expenses, including attorneys’ fees, paid or incurred in connection therewith.
Without the prior written consent of Indemnified Party, Indemnifying Party will not enter into any settlement of any Claim which would lead to liability or create any financial or other obligation on the part of Indemnified Party for which Indemnified Party is not entitled to indemnification 46 hereunder; provided, however, that Indemnifying Party may accept any settlement without the consent of Indemnified Party if such settlement provides a full release to Indemnified Party and no requirement that Indemnified Party acknowledge fault or culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of Indemnified Party for which Indemnified Party is not entitled to indemnification hereunder and Indemnifying Party desires to accept and agrees to such offer, Indemnifying Party will give Notice to Indemnified Party to that effect. If Indemnified Party fails to consent to such firm offer within ten (10) calendar days after its receipt of such Notice, Indemnified Party may continue to contest or defend such Claim and, in such event, the maximum liability of Indemnifying Party to such Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by Indemnified Party up to the date of such Notice.
16.5 Subrogation of Rights. Upon making any indemnity payment, Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of Indemnified Party against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided that until Indemnified Party recovers full payment of its Indemnifiable Loss, any and all claims of Indemnifying Party against any such third party on account of said indemnity payment are hereby made expressly subordinated and subjected in right of payment to Indemnified Party’ s rights against such third party. Without limiting the generality or effect of any other provision hereof, Buyer and Seller shall execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.
16.6 Rights and Remedies are Cumulative. Except for express remedies already provided in this Agreement, the rights and remedies of a Party pursuant to this Article 16 are cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.
ARTICLE 17
INSURANCE
17.1 Required Insurance.
a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, (i) commercial general liability insurance with a minimum of liability limits in the amount of Two Million Dollars ($ 2,000, 000) per occurrence and Five Million Dollars 5,000,000) in the aggregate. Coverage shall include products and completed operations, personal advertising injury insurance, contractual liability, specifically covering Seller’ s obligations under this Agreement to the extent available in the commercial insurance market. The policy shall include Buyer as an additional insured but only to the extent of the liabilities assumed hereunder by Seller. Such insurance shall contain standard cross -liability and severability of interest provisions.
b) Umbrella or Excess Liability Insurance. Seller shall maintain, or cause to be maintained at its sole expense, an Umbrella or Excess Liability Insurance policy in a minimum amount of liability of Ten Million Dollars ($10,000,000) per occurrence and in the aggregate. c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term Workers’ Compensation and Employers’ Liability 47 insurance coverage in accordance with applicable requirements of California Law. Employer’ s Liability insurance shall be One Million Dollars ($1,000,000.00) for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the One Million Dollar 1,000,000) policy limit will apply to each employee.
d) Business Auto Liability Insurance. Seller shall maintain or cause to be maintained at all times during the Contract Term Business Auto Liability insurance for bodily injury and property damage with limits of One Million Dollars ($ 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 vehicles, including trailers or semi- trailers in the performance of the Agreement. e) Subcontractor Insurance. Seller shall require all of its subcontractors to carry the same levels of insurance as Seller where exposure exists; provided, that Seller may permit any such subcontractor to obtain and maintain insurance coverages with lower limits to the extent that such lower limits are customary for subcontractors providing work of the type and scope to be provided and are consistent with Prudent Operating Practice. All subcontractors shall include Seller as an additional insured to ( i) Commercial General Liability insurance; ( ii) Employers’ Liability coverage; and ( iii) Business Auto Liability insurance for bodily injury and property damage. All subcontractors shall provide a primary and non- contributory endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 17.1(e). f) All-Risk Property Insurance. Seller shall purchase and maintain All-Risk Property Insurance in an amount not less than the replacement cost of the Facility or loss limit based on a Maximum Foreseeable Loss analysis and sub- limits for natural catastrophe perils to protect against loss of, damage to, or destruction of the Facility, and including expediting expense coverage. 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 Insurance policy/ insurer). Such Insurance shall contain a waiver of subrogation in favor of Buyer. g) Evidence of Insurance. Within ten ( 10) days after execution of the Agreement and upon annual renewal thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage. Buyer shall be given at least thirty ( 30) days prior Notice by Seller in the event of any cancellation of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer.
17.2 Additional Requirements.
a) The 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 Buyer 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 Buyer and its respective officers, officials, agents, employees and insurers. The General Liability and Umbrella/ Excess Liability insurance required above shall name, by endorsement ( or by blanket 48 policy language, reasonably acceptable to Buyer, extending additional insured status to whomever the insured agrees by written contract), Buyer 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 Facility, and (ii) acts or omissions arising out of or in connection this Agreement. b) If Seller fails to comply with any of the provisions of this Article 17, Seller, among other things and without restricting Buyer’ 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 General Liability, Umbrella/Excess Liability and Business Auto Liability insurance, Seller shall provide a current, full and complete defense to Buyer 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.
ARTICLE 18
CONFIDENTIAL INFORMATION
18.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: ( a) the terms and conditions of, and proposals and negotiations related to, this Agreement, and ( b) information that either Seller or Buyer stamps or otherwise identifies as confidential” or “proprietary” before disclosing it to the other. Confidential Information does not include ( i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; ( iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and ( iv) information that the recipient independently developed without a violation of this Agreement.
18.2 Duty to Maintain Confidentiality. Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient ( the “ Receiving Party”) if and to the extent such disclosure is required (a) to be made by any requirements of Law, b) pursuant to an order of a court or (c) in order to enforce this Agreement. If the Receiving Party becomes legally compelled (by interrogatories, requests for information or documents, subpoenas, summons, civil investigative demands, or similar processes or otherwise in connection with any litigation or to comply with any applicable law, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator request or rule) to disclose any Confidential Information of the disclosing Party ( the Disclosing Party”), Receiving Party shall provide Disclosing Party with prompt notice so that Disclosing Party, at its sole expense, may seek an appropriate protective order or other appropriate remedy. If the Disclosing Party takes no such action after receiving the foregoing notice from the Receiving Party, the Receiving Party is not required to defend against such request and shall be permitted to disclose such Confidential Information of the Disclosing Party, with no liability for any damages that arise from such disclosure. Each Party hereto acknowledges and agrees that 49 information and documentation provided in connection with this Agreement may be subject to the California Public Records Act (Government Code Section 7920 et seq.).
18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party, and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth in this Article 18. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctive relief against the threatened breach of this Article 18 or the continuation of any such breach, without the necessity of proving actual damages.
18.4 Disclosure to Lenders, Etc. Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by Seller to any actual or potential Lender or investor or any of their Affiliates, and Seller’s actual or potential agents, consultants, contractors, or trustees, so long as the Person to whom Confidential Information is disclosed agrees in writing to be bound by the confidentiality provisions of this Article 18 to the same extent as if it were a Party.
18.5 Public Records Act. Seller and Buyer acknowledge and agree that this Agreement and any documents, notices or confirmations executed in connection therewith are subject to the requirements of the California Public Records Act (Cal. Government Code § 7920.000 et seq.).
Buyer acknowledges that Seller may submit information to Buyer that the other party considers confidential, proprietary, or trade secret information pursuant to the Uniform Trade Secrets Act Cal. Civ. Code § 3426 et seq.), or otherwise protected from disclosure pursuant to an exemption to the California Public Records Act. Seller acknowledges that Buyer may submit to Seller information that Buyer considers confidential or proprietary or protected from disclosure pursuant to exemptions to the California Public Records Act. Upon request or demand of any third person or entity not a party to this Agreement (“ Requestor”) for production, inspection and/ or copying of information designated by a Party as Confidential Information, the Receiving Party as soon as practical, shall notify the Disclosing Party that such request has been made. The Disclosing Party shall be solely responsible for taking whatever legal steps are necessary to protect information deemed by it to be Confidential Information and to prevent release of information to the Requestor by the Receiving Party. If the Disclosing Party takes no such action after receiving the foregoing notice from the Receiving Party, the Receiving Party shall be permitted to comply with the Requestor’ s demand and is not required to defend against it.
18.6 Press Releases. Neither Party shall issue ( or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such public statement.
ARTICLE 19
MISCELLANEOUS
19.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding 50 between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and those of the Cover Sheet or any Exhibit, the provisions of first the Cover Sheet, and then this Agreement shall prevail, and such Exhibit shall be corrected accordingly. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other Party as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.
19.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.
19.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.
19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co- venturers in or lessor/ lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party ( other than a permitted successor or assignee bound to this Agreement or, to the extent set forth herein, any Lender or Indemnified Party).
19.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.
19.6 Mobile- Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 ( 1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable law. 51 19.7 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original. The Parties may rely on electronic, facsimile or scanned signatures as originals.
19.8 Electronic Delivery. Delivery of an executed signature page of this Agreement by electronic format (including portable document format (.pdf)) shall be the same as delivery of an original executed signature page.
19.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
19.10 Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “ forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “ forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101- 1532.
19.11 Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
Signatures on following page]
Exhibit A - 1
EXHIBIT A
FACILITY DESCRIPTION
MW: 30.45
Resource IDs: Oak Creek Project: OAKWD_ 6_QF;
Zephyr Park Project: OAKWD_6_ZEPHWD
Site Name: Alta Oak Realty
Site includes all or some of the following APNs:
237- 530- 19 237- 530- 22
237-530-20 237-530-02
237-530-21 237-530-03
237- 530- 24 237- 083- 16
237-083-36 237-530-36
237- 530- 18 237- 530- 37
County: Kern
CEQA Lead Agency: N/A (Existing facility)
Type of Facility: Wind
Operating Characteristics of Facility: See Exhibit Q
Guaranteed Capacity: See definition in Section 1.1
Delivery Points: PNode assigned to each project by the CAISO. As of the Effective Date, for the Zephyr Park Project this Pnode is POD_ OAKWD_ 6_ZEPHWD- APND, and for the Oak Creek Project this Pnode is POD_OAKWD_6_QF-APND.
Facility Meters: See Exhibit R
Facility Interconnection Points:
OAKWD_ 6_QF: A tap connection on SCE’ s existing CAl Cement- WindParks 66 kV line.
OAKWD_6_ZEPHWD: At SCE’ s AR switch on SCE’s Sancho 12 kV distribution line out of the Southwind 66 kV substation.
Participating Transmission Owner: Southern California Edison (SCE) Exhibit B - 1
EXHIBIT B
RESERVED]
Exhibit C - 1
EXHIBIT C
COMPENSATION
Buyer Compensation to Seller: Buyer shall compensate Seller for the Product in accordance with this Exhibit C.
a) Energy Price. During the Delivery Term, for each MWh of Facility Energy delivered to the Delivery Points in each Settlement Interval, Buyer shall pay Seller the Energy Price, and shall make such payment on a monthly basis, pursuant to the requirements of Article 8. b) RA Credit. For each month of the Delivery Term prior to the RA Guarantee Date, Seller shall pay to Buyer the applicable RA Credit for such month, pursuant to the requirements of Article 8.
c) REC Price. Buyer shall pay Seller an amount equal to thirty dollars per MWh 30/MWh) ( the “ REC Price”) for WREGIS Certificates transferred to Buyer’ s WREGIS account, and shall make such payment in the month following Buyer’ s receipt of the corresponding WREGIS Certificates into Buyer’s WREGIS account, pursuant to the requirements of Article 8. d) Replacement Product Rate. Buyer will pay Seller for all Replacement Product provided pursuant to Section 4.7 and Exhibit G at the Contract Price, and shall make such payment in the month following Buyer’ s receipt of the Replacement Product, pursuant to the requirements of Article 8.
e) Excess Contract Year Deliveries Over 110%. If, at any point in any Contract Year, the amount of Facility Energy for such Contract Year exceeds one hundred and ten percent (110%) of the Expected Energy for such Contract Year, then, notwithstanding anything to the contrary in this Agreement, for the Product associated with each additional MWh of Facility Energy in such Contract Year that exceeds one hundred and ten percent ( 110%) of the Expected Energy for such Contract Year (“Annual Excess Product”) (i) Buyer will have no right or obligation to purchase such Annual Excess Product, and ( ii) Seller shall have the right to sell the Annual Excess Product to one or more third parties and retain any revenues associated with such sale. f) Excess Settlement Interval Deliveries. If during any Settlement Interval, Seller delivers Product amounts, as measured by the amount of Facility Energy, in excess of the product of the Maximum Capacity and the duration of the Settlement Interval, expressed in hours (“ Excess MWh”), then the price applicable to all such excess MWh in such Settlement Interval shall be zero dollars ($ 0).
g) CAISO Costs and CAISO Revenues.
i) Seller Role. Seller acts as the Scheduling Coordinator for the Facility.
Exhibit C - 2
ii) Seller’ s Responsibilities. Seller shall pay all CAISO costs related to the Facility’ s operations. These include: penalties, Real-time Imbalance Energy Offset charges, CAISO- assessed charges, and grid management charges.
iii) Seller’ s Entitlements. Seller shall be entitled to retain all CAISO Real- Time Imbalance Energy Offset credits, all Bid Cost Recovery payments and any other CAISO payments or credits except for those related to charge codes 6011, 6460, 6470, and 6475, as further specified below.
iv) Seller Credit to Buyer for Certain CAISO Charge Codes. In consideration of Seller retaining all other CAISO revenues, Seller shall pay Buyer in accordance with Article 8 an amount determined based upon the sum of the CAISO monthly settlement amounts associated with CAISO charge codes 6011, 6040, 6470, and 6475 ( the “ CAISO PassThrough Amounts”) as follows:
A) For each Settlement Interval in the month:
i. IFM ( Integrated Forward Market): If any energy
from the Facility clears the IFM and the IFM LMP for such Settlement Interval is greater than the Price Floor, the credit shall equal the total amounts (positive or negative) under CAISO charge code 6011.
ii. FMM (Fifteen Minute Market): If any energy clears
the FMM and the FMM LMP for such Settlement Interval is greater than the Price Floor, the credit equals the total amounts (positive or negative) under CAISO charge code 6460. iii. RTIIE ( Real- Time Instructed Imbalance Energy): If there is any RTIIE energy and the RT LMP for such Settlement Interval is greater than the Price Floor, the credit shall equal the total amounts ( positive or negative) under CAISO charge code 6470.
iv. RTUIE ( Real- Time Uninstructed Imbalance
Energy): If there is any RTUIE energy and the RT LMP for such Settlement Interval is greater than the Price Floor, the credit equals the total amounts ( positive or negative) under CAISO charge code 6475.
B) Resettlements. If CAISO issues any revised or resettlement statements that change the amounts under charge codes 6011, 6460, 6470, or 6475, Seller will account for the revisions on the next monthly invoice using the same calculation method.
C) For the avoidance of doubt, calculation of this credit to Buyer shall not include any Settlement Intervals involving the sale of Annual Excess Product to third parties pursuant to Section ( e) of this Exhibit C. h) Curtailment Payments. Seller shall receive no compensation from Buyer for Deemed Delivered Energy.
Exhibit C - 3
i) Tax Credits. The Parties agree that the Contract Price is not subject to adjustment or amendment if Seller fails to receive any Tax Credits, or if any Tax Credits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Credits. Seller shall bear all risks, financial and otherwise, throughout the Contract Term, associated with Seller’ s or the Facility’ s eligibility to receive Tax Credits or to qualify for accelerated depreciation for Seller’ s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase and price for and Seller’s obligation to deliver Facility Energy and Product, shall be effective regardless of whether the sale of Facility Energy is eligible for, or receives Tax Credits during the Contract Term.
Exhibit D - 1
EXHIBIT D
SCHEDULING COORDINATOR RESPONSIBILITIES
Scheduling Coordinator Responsibilities.
i. Seller to be Scheduling Coordinator. During the Delivery Term, Seller shall be its own Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO to Schedule and deliver the Facility Energy to the Delivery Points, and Buyer shall be its own Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO. Each Party shall perform all scheduling and transmission activities in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and ( iii) Prudent Operating Practice. The Parties agree to communicate and cooperate as necessary in order to address any scheduling or settlement issues as they may arise, and to work together in good faith to resolve them in a manner consistent with the terms of the Agreement. ii. CAISO Market Participation. During the Delivery Term, Seller, as the party responsible for all Scheduling Coordinator activities and Imbalance Energy risk with respect to the Facility, shall ( i) have the right, but not the obligation, in its sole discretion to submit Energy Supply Bids or Self-Schedules into the DayAhead Market, ( ii) schedule in the Real- Time Market with a volume based on the VER forecast, its equivalent or any successor, provided by the CAISO, or such other forecast as developed by Seller and approved by Buyer, such approval not to be unreasonably withheld, provided, however, that Seller will have the right to elect in its sole discretion to submit either Energy Supply Bids or Self-Schedules or any combination thereof in the Real-Time Market with respect to such volume. Seller’ s Day- Ahead Market and Real- Time Market participation will be conducted in accordance with this Agreement and the CAISO Tariff, including any requirements to remain in the VER program, its equivalent or any successor, and to the extent not inconsistent with the foregoing, Prudent Operating Practice.
Exhibit E - 1
EXHIBIT E
RESERVED]
Exhibit F-1 - 1
EXHIBIT F-1
AVERAGE EXPECTED ENERGY
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:0
0 11: 0
0 12: 0
0 13:0
0 14:0
0 15:0
0 16:0
0 17: 0
0 18: 0
0 19: 0
0 20: 0
0 21: 0
0 22: 0
0 23: 0
0 24:0
0 JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
Exhibit F-2 - 1
EXHIBIT F-2
AVAILABLE CAPACITY
The following tables are provided for informational purposes only, and shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
Available Generating Capacity, MW Per Hour – January
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10: 00 11:00 12:00 13:00 14:00 15: 00 16: 00 17: 00 18: 00 19:00 20:00 21:00 22:00 23: 00 24:00 Day
1 Day
2 Day
3 Day
4 Day
5 insert additional rows for each day in the month]
Day
29 Day
30 Day
31 The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
Exhibit F-2 - 2
Available Generating Capacity, MW Per Hour – February
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
Exhibit F-2 - 3
Available Generating Capacity, MW Per Hour – March
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 Exhibit F-2 - 4
Available Generating Capacity, MW Per Hour – April
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
Exhibit F-2 - 5
Available Generating Capacity, MW Per Hour – May
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 Exhibit F-2 - 6
Available Generating Capacity, MW Per Hour – June
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
Exhibit F-2 - 7
Available Generating Capacity, MW Per Hour – July
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10: 00 11: 00 12: 00 13: 00 14:00 15:00 16:00 17:00 18: 00 19: 00 20: 00 21:00 22:00 23:00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 Exhibit F-2 - 8
Available Generating Capacity, MW Per Hour – August
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 Exhibit F-2 - 9
Available Generating Capacity, MW Per Hour – September
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
Exhibit F-2 - 10
Available Generating Capacity, MW Per Hour October
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 Exhibit F-2 - 11
Available Generating Capacity, MW Per Hour – November
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
Exhibit F-2 - 12
Available Generating Capacity, MW Per Hour December
The following table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12: 00 13: 00 14: 00 15: 00 16:00 17:00 18:00 19:00 20: 00 21: 00 22: 00 23: 00 24:00 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
29 30
31 Exhibit G - 1
EXHIBIT G
GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
In accordance with Section 4.7, if Seller fails to achieve the Guaranteed Energy Production during any Performance Measurement Period, a liquidated damages payment shall be due from Seller to Buyer, calculated as follows:
A – B) * (C – D)]
where:
A = the Guaranteed Energy Production amount for the Performance Measurement Period, in MWh
B = the Adjusted Energy Production amount for the Performance Measurement Period, in MWh
C = Price for Replacement Product for the Performance Measurement Period, in $/MWh, which is the sum of (a) the simple average of the Integrated Forward Market ( as defined in the CAISO Tariff) hourly price for all the hours in the Performance Measurement Period, as published by the CAISO, for the Delivery Points, plus ( b) the Market Value of Replacement Green Attributes, but not to exceed $ 50.00/MWh.
D = the Contract Price for the Performance Measurement Period, in $/MWh Adjusted Energy Production” shall mean the sum of the following: Facility Energy + Deemed Delivered Energy + Lost Output + Replacement Product.
Lost Output” has the meaning given in Section 4.7 of the Agreement. The Lost Output shall be calculated in the same manner as Deemed Delivered Energy is calculated, in accordance with the definition thereof.
Market Value of Replacement Green Attributes” means the prevailing market price expressed in $/MWh) for RECs meeting the RPS requirements for Portfolio Content Category 1, determined by averaging the REC price component of quotes provided by Buyer from three (3) unaffiliated brokers for such product using an “ index- plus- REC price” pricing structure; provided, however, that if three (3) broker quotes are not available to Buyer after making commercially reasonable efforts to obtain such quotes, then the Market Value of Replacement Green Attributes shall be determined by averaging quotes provided by Buyer from two (2) unaffiliated brokers; provided further, that if at least two ( 2) broker quotes cannot be obtained, then the Market Value of Replacement Green Attributes will be deemed equal to thirty dollars per MWh ($30/MWh).
Replacement Energy” means energy produced by a facility other than the Facility that, at the time delivered to Buyer, qualifies under Public Utilities Code 399.16(b)(1), and has Green Attributes that have the same or comparable value, including with respect to the timeframe for Exhibit G - 2
retirement of such Green Attributes, if any, as the Green Attributes that would have been generated by the Facility during the Contract Year for which the Replacement Energy is being provided.
Replacement Green Attributes” means PCC1 Renewable Energy Credits of the same or comparable timeframe for retirement as the Renewable Energy Credits that would have been generated by the Facility during the Performance Measurement Period for which the Replacement Green Attributes are being provided.
Replacement Product” means ( a) Replacement Energy, and ( b) Replacement Green Attributes.
No payment shall be due if the calculation of (A - B) or (C - D) yields a negative number.
Within sixty (60) days after each Contract Year, Buyer will send Seller Notice of the amount of damages owing, if any, which shall be payable to Buyer before the later of (a) thirty 30) days of such Notice and (b) ninety (90) days after each Performance Measurement Period, provided that the amount of damages owing shall be adjusted to account for Replacement Product, if any, delivered after each applicable Performance Measurement Period.
Exhibit H - 1
EXHIBIT H
RESERVED]
Exhibit I - 1
EXHIBIT I
RESERVED]
Exhibit J - 1
EXHIBIT J
RESERVED]
Exhibit K - 1
EXHIBIT K
FORM OF LETTER OF CREDIT
Issuing Bank’ s Letterhead]
Irrevocable Standby Letter of Credit No. ######## (“Letter of Credit”) Issue Date: [ Date]
Issuing Bank:
Bank Name, Branch Location]
LOC Department Address]
City, State, Zip]
Attn: [Bank Department Name (if any)]
E-mail: [ LOC Department Address]
Fax: [LOC Department Number]
Secure File Transfer Protocol, if applicable]
Phone: [LOC Department Number]
Beneficiary:
City of Anaheim (“ Beneficiary”)
201 South Anaheim Blvd., suite 1101
Anaheim, CA 92805
Attn: Utilities Chief Risk Manager
Applicant:
Alta Oak Realty, LLC (“ Applicant”)
Seller Address]
City, State, Zip]
Amount of Letter of Credit: [$###,###] (_________ U.S. Dollars) (“Credit Amount”) Expiration: [ Date] ( together with any automatic extensions, if any, “ Expiration Date”) Ladies and Gentlemen:
We, [ Bank Name], hereby issue this irrevocable standby Letter of Credit in favor of Beneficiary for the account of Applicant, which is issued in connection with the Renewable Power Purchase Agreement dated [ Date of Execution of Agreement], as amended from time to time, between Applicant and Beneficiary. This Letter of Credit is available for drawings up to the Credit Amount, which are available for by-sight payments from our offices at our address listed above.
This Letter of Credit takes effect immediately and will expire at the close of our published banking hours (“ COB”) on the Expiration Date.
Exhibit K - 2
Funds shall be payable to Beneficiary upon Beneficiary’ s presentation to us of all the following documents:
1. A copy of this Letter of Credit and all amendments, if any;
2. A copy of a Drawing Certificate in the form of Attachment A hereto, which forms an integral part hereof, duly completed and signed by an authorized representative of Beneficiary; and
3. A copy of a Sight Draft in the form of Attachment B hereto, which forms an integral part hereof, duly completed and signed by an authorized representative of Beneficiary.
Beneficiary may present the above- listed documents to us via overnight courier, e-mail, fax, or other electronic transmission (if provided above) to our address, e-mail, or fax listed above. If demand is by electronic presentation, Beneficiary may call us at our number above to confirm our receipt. However, such phone confirmation shall not be required for us to honor the demand.
This Letter of Credit is subject to the following special conditions:
1. Beneficiary may make partial and multiple drawings under this Letter of Credit;
2. All of our banking charges will be charged to Applicant’ s account;
3. This Letter of Credit is non-transferable;
4. An electronic copy of this Letter of Credit shall be valid until the original is received; and
5. The Expiration Date shall automatically extend without amendment or notice for an additional one ( 1) year on each anniversary of the Expiration Date, unless we notify Beneficiary by registered mail or courier at least sixty (60) days before the then current Expiration Date that we elect not to extend the Expiration Date.
We shall honor Beneficiary’s drafts presented in compliance with this Letter of Credit if made on or before the Expiration Date, provided only that the documents substantially comply with the requirements of this Letter of Credit.
If Beneficiary presents a compliant draft before 11:00 a.m. (ET) on a banking day, we shall make payment against the draft by COB on the next banking day. For a compliant draft presented after 11:00 a.m. (ET), we shall make payment by COB on the second banking day following presentation.
This Letter of Credit fully states the terms of our undertaking. Except as stated herein, this Letter of Credit is not subject to any condition or qualification, and our obligation hereunder is not contingent upon reimbursement and is not modified, amended, amplified, or incorporated by reference to any agreement, document, or instrument between us and Applicant or between Beneficiary and Applicant or any third party.
This Letter of Credit is governed by the International Standby Practices 1998, International Chamber of Commerce Publication No. 590 (“ ISP98”). As to matters not governed by the ISP98, this Letter of Credit is governed by the laws of the State of California and applicable U.S. federal law. Any litigation arising out of or relating to this Letter of Credit shall be brought in a state or federal court in Orange County, California, and we agree to submit to the exclusive jurisdiction of such California courts without regard to our place of business.
For questions or assistance about this Letter of Credit, please call us at our number listed above.
Exhibit K - 3
Very truly yours,
Bank Name]
By: 1
Name: [ Typed Named]
Title: [Typed Title]
Department: [ Department Name, if applicable]
1 Note: Issuing Bank shall provide Beneficiary with a certificate of incumbency or other documentary evidence of the signatory’ s authority to issue this Letter of Credit in the Credit Amount concurrent with execution hereof.
Exhibit K - 4
ATTACHMENT A – DRAWING CERTIFICATE
Beneficiary’s Letterhead]
Date]
Bank Name] (“ Bank”)
LOC Department Address]
City, State, Zip]
Attn: [ Bank Department Name ( if any)]
E-mail: [LOC Department Address]
Fax: [ LOC Department Number]
Secure File Transfer Protocol, if applicable]
Phone: [ LOC Department Number]
Subject: Drawing Certificate Pursuant to Irrevocable Standby Letter of Credit No. ######## (“ Letter of Credit”)
Pursuant to the Letter of Credit, the City of Anaheim (“Beneficiary”) demands payment of U.S.
U.S. Dollars), which amount does not exceed the amount available under the Letter of Credit, for the following reason(s) ( check applicable provision):
A. Under the Renewable Power Purchase Agreement between Alta Oak Realty, LLC Applicant”) and Beneficiary dated [Date of Execution of Agreement], as amended from time to time (“ Agreement”), an Event of Default ( as defined in the Agreement) with respect to Applicant’ s obligations has occurred and is continuing.
B. An Early Termination Date ( as defined in the Agreement) has occurred or been designated due to an Event of Default under the Agreement with respect to Applicant’s obligations for which there exist unsatisfied obligations.
C. Beneficiary has not been paid any or all of Applicant’ s payment obligations now due and payable under the Agreement, and Applicant’ s cure periods under the Agreement have lapsed.
D. Beneficiary has not received any or all of the Product ( as defined in the Agreement) that Applicant is obligated to deliver to Beneficiary, and Applicant’ s cure periods under the Agreement have lapsed.
E. The Bank has heretofore provided written notice to Beneficiary of the Bank’ s intent not to extend the Letter of Credit following the present Expiration Date thereof (“ Notice of Non-extension”), and Applicant has failed to provide Beneficiary with a replacement letter of credit satisfactory to Beneficiary, in its sole discretion, within thirty ( 30) days following the date of the Notice of Non-extension.
Exhibit K - 5
F. Other: _________________________________________________________________.
Unless otherwise provided herein, capitalized terms used and not defined herein have the meanings given such terms in the Letter of Credit.
IN WITNESS WHEREOF, Beneficiary, by way of its authorized representative, has duly executed this Drawing Certificate as of the date set forth above.
CITY OF ANAHEIM
By:
Name: [ Typed Named]
Title: [Typed Title]
Exhibit K - 6
ATTACHMENT B – SIGHT DRAFT
Beneficiary’s Letterhead]
Date]
Bank Name] (“ Bank”)
LOC Department Address]
City, State, Zip]
Attn: [ Bank Department Name ( if any)]
E-mail: [LOC Department Address]
Fax: [ LOC Department Number]
Secure File Transfer Protocol, if applicable]
Phone: [ LOC Department Number]
At sight of this demand, pay to the order of the City of Anaheim the amount of U.S. $________ U.S. dollars), drawn pursuant to the Bank’ s letter of credit No. ######## Letter of Credit”). This amount does not exceed the available balance under the Letter of Credit.
Remit funds to Beneficiary via wire transfer in accordance with the following instructions:
Insert payment instructions]
CITY OF ANAHEIM
By:
Name: [ Typed Named]
Title: [Typed Title]
Exhibit K - 3
EXHIBIT L
RESERVED]
Exhibit M - 1
EXHIBIT M
FORM OF REPLACEMENT RA NOTICE
This Replacement RA Notice ( this “ Notice”) is delivered by Alta Oak Realty, LLC (“ Seller”) to BUYER], a [] (“ Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated __________ (“ Agreement”) by and between Seller and Buyer. All capitalized terms used in this Notice but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Pursuant to Section 3.8(b) of the Agreement, Seller hereby provides the below Replacement RA product information:
Exhibit M - 2
ALTA OAK REALTY, LLC
By:
Its:
Date:
Exhibit N - 1
EXHIBIT N
NOTICES
Alta Oak Realty, LLC, a Delaware limited
liability company
Seller”)
City of Anaheim, a California municipal
corporation (“ Buyer”)
All Notices:
Street: 437 Madison Avenue, 22FL, Suite A
City: New York, NY 10022
Phone: ( 646) 829- 3900
Facsimile: (646) 829-3901
Email: jcast@terra- gen.com
All Notices:
Street: 201 S. Anaheim Blvd., Suite 802
City: Anaheim, CA 92805
Attn: Integrated Resources Manager
Phone: ( 714) 765- 4923
Email: [email protected];
amarkis@anaheim. net;
[email protected];
ekrause@anaheim. net;
[email protected]
With a copy to:
City of Anaheim
Street: 200 S. Anaheim Blvd., 3rd Floor
City: Anaheim, CA 92805
Attn: City Attorney
Phone: (714) 765-5169
Facsimile: ( 714) 765- 5123
Reference Numbers:
Duns:
Federal Tax ID Number:
Reference Numbers:
Duns: 801019282
Federal Tax ID Number:
Invoices:
Attn: Reno Accounting
Phone: (775) 850-2232
Facsimile: N/A
E-mail: [email protected]
Invoices:
Attn: Mike Pham
Phone: (714) 765-5279
Email: energysettlements@anaheim. net;
[email protected]; [email protected]
Please send invoices to:
energysettlements@anaheim. net
Exhibit N - 2
Alta Oak Realty, LLC, a Delaware limited
liability company
Seller”)
City of Anaheim, a California municipal
corporation (“Buyer”)
Scheduling:
Attn: Ryan Miller
Phone: (646) 829-3957
Facsimile: N/A
Email: [email protected]
Scheduling (Day-Ahead Operations):
Scheduling Desk
Phone: ( 714) 765- 4472; ( 714) 765- 5495, ( 714)
765-5177, or (714) 765-4445
Facsimile: ( 714) 765- 4692
E-mail: [email protected];
plee@anaheim. net; racosta@anaheim. net;
[email protected]; [email protected]
Scheduling (Real-Time Operations):
Operation Desk
Phone: (714) 765-5109 or (760) 316-4314
E-mail: anaheim@zglobal. biz;
[email protected];
irscheduler@anaheim. net
Confirmations:
Attn: Ryan Belgram
Phone: (713) 444-9513
Email: rbelgram@terra- gen.com
Confirmations:
Attn: Nancy Le, Andrew Markis, or Scott
Shimoda
Phone: ( 714) 765- 4160, ( 714) 765- 4259, or
714) 765-5036
Facsimile: ( 714) 765- 4140
E-mail: [email protected];
amarkis@anaheim. net;
[email protected]
Wire Transfer:
BNK:
Account Name:
ABA:
ACCT:
Wire Transfer:
BNK:
ABA:
Credit to City of Anaheim
ACCT:
Ref: Anaheim Public Utilities
Credit and Collections:
Attn: Carrie Lackey, VP Treasurer
Phone: (646) 829-3922
Facsimile: ( 646) 829- 3901
E-Mail: [email protected]
Manager of Credit and Collateral:
Attn: Mei Pan
Phone: (714) 765-4132
E-mail: mpan@anaheim. net;
[email protected]
Exhibit N - 3
Alta Oak Realty, LLC, a Delaware limited
liability company
Seller”)
City of Anaheim, a California municipal
corporation (“Buyer”)
With additional Notices of an Event of
Default to:
Attn: Jeff Cast, Managing Director
Phone: ( 646) 829- 3909
Facsimile: (646) 829-3901
E-Mail: jcast@terra- gen. com
With additional Notices of an Event of
Default to:
City of Anaheim
Attn: City Clerk
Street: 200 S. Anaheim Blvd., 2nd Floor
City: Anaheim, CA 92805
Phone: (714) 765-5166
Facsimile: ( 714) 765- 4105
With a copy to:
City of Anaheim
Attn: City Attorney
Street: 200 S. Anaheim Blvd., 3rd Floor
City: Anaheim, CA 92805
Phone: (714) 765-5169
Facsimile: ( 714) 765- 5123
Emergency Contact:
Attn: Terra-Gen Wind and Solar Operations
Phone: ( 661) 822- 2440
E-mail: [email protected]
Emergency Contact:
Attn: Anaheim Public Utilities
Phone: ( 714) 765- 3300, ( 714) 765- 4259 or
714) 765-5036
Facsimile: ( 714) 765- 4140
Exhibit O - 1
EXHIBIT O
RESERVED]
Exhibit P - 1
EXHIBIT P
RESERVED]
Exhibit Q - 1
EXHIBIT Q
OPERATING RESTRICTIONS
The Facility will be subject to the following Operating Restrictions:
Start and Stop Orders should be given at least thirty ( 30) minutes in advance to allow operations personnel to follow safety protocols to alert site personnel of impending turbine status change and submit site outage information to CAISO.
Stop Orders should include expected duration of shutdown.
Minimum off time is sixty (60) minutes.
Maximum number of shutdowns per day equals one ( 1) unless windspeeds are less than ten ( 10) m/s.
If windspeeds are less than ten ( 10) m/s, turbines should be allowed to run a minimum of thirty (30) minutes between shutdowns.
Exhibit R - 1
EXHIBIT R
METERING DIAGRAM
Wind Turbines
MV Transformers
600V to 12.47kv
Step Up Transformers
12.47kv to 66kv
Generating Facility Meters(s)/
CAISO Meter
Windhub
Facility Interconnection Point
OAKWD_ 6_QF: Cal Cement -WindParks 66kV Line
And
OAKWD_ 6_ZEPHWD Sancho 12kv distribution out of
Southwind 66kV Substation