Execution Version
1 RENEWABLE POWER PURCHASE AGREEMENT
COVER SHEET
Seller: Tule Hydro LLC, a Utah limited liability company Buyer: City of Burbank, a California municipal corporation, through its Burbank Water and Power Department
Description of Facility: The Tule River hydroelectric project located in Tulare County (currently designated as CAISO Resource ID: SPRGVL_2_TU LE) in the State of California with a generating capacity of approximately 6.4 MW, subject to adjustment as described in Section 2.6.
Guaranteed Capacity: 6.4 MW; provided, that if, at the Commercial Operation Date, the Installed Capacity is greater than the Guaranteed Capacit y, the Guaranteed Capacity shall be amended to equal the Installed Capacity and other applicable portions of the PPA shall be adjusted accordingly.
Milestones:
Milestone Date for
Completion
Evidence of Site Control Complete
CEC Pre-Certification Obtained Complete
Executed Interconnection Agreement Complete
Initial Synchronization 02/25/2024
Expected Commercial Operation Date 03/01/2024
Guaranteed Commercial Operation Date 09/01/2025
Delivery Term: Fifteen (15) Contract Years.
Expected Energy:
Contract Year Expected Energy (Annual
MWh)
1-15 22,300
Contract Capacity: 6.4 MW (as may be amended to a higher capacity if the generator is rerated at a higher capacity after repairs are completed)
ATTACHMENT 1
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2 Contract Price: The Contract Price of the Product shall be:
Contract Year Contract Price
1-15
$60.00/MWh beginning on
the Commercial Operation
Date (with an annual
escalator of 2.5% on each
subsequent anniversary
date). For the purposes of
determining Liquidated
Damages, the portion of the
Contract Price allocated to
Green Attributes shall be
equal to the Renewable
Energy Credit Price.
Product: Including but not limited to:
Delivered Energy
Green Attributes (Portfolio Content Category 1) associated with Delivered Energy. Capacity Attributes, if any
Ancillary Services, if any
Capacity Attributes (Resource Adequacy), if any
Any other products that may arise in the market, in which the Facility can provide; provided, that if any material upgrades or changes to Facility shall only be provided upon mutual agreement.
Scheduling Coordinator: Buyer or Buyer’s agent
Development Security: $100/kW of Contract Capacity
Performance Security: $46.88/kW of Contract Capacity
ATTACHMENT 1
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS ...................................................................................................................... 1
1.1 CONTRACT DEFINITIONS. ............................................................................................................................... 1
1.2 RULES OF INTERPRETATION. ....................................................................................................................... 17 ARTICLE 2 TERM; CONDITIONS PRECEDENT ............................................................................. 18
2.1 CONTRACT TERM. ........................................................................................................................................ 18
2.2 CONDITIONS PRECEDENT ............................................................................................................................. 18
2.3 DEVELOPMENT; CONSTRUCTION; PROGRESS REPORTS ............................................................................. 19 ARTICLE 3 PURCHASE AND SALE ................................................................................................... 20
3.1 PURCHASE AND SALE OF PRODUCT. ............................................................................................................ 20
3.2 SALE OF GREEN ATTRIBUTES. ..................................................................................................................... 20
3.3 COMPENSATION. ........................................................................................................................................... 20
3.4 IMBALANCE ENERGY. ................................................................................................................................... 20
3.5 OWNERSHIP OF RENEWABLE ENERGY INCENTIVES. .................................................................................. 20
3.6 TEST ENERGY. .............................................................................................................................................. 21
3.7 CAPACITY ATTRIBUTES............................................................................................................................... . 21
3.8 CEC CERTIFICATION AND VERIFICATION. ................................................................................................. 21
3.9 RESERVED. .................................................................................................................................................... 22
3.10 RPS STANDARD TERMS AND CONDITIONS. ............................................................................................ 22
3.11 COMPLIANCE EXPENDITURE CAP. .......................................................................................................... 22 ARTICLE 4 OBLIGATIONS AND DELIVERIES ............................................................................... 23
4.1 DELIVERY. .................................................................................................................................................... 23
4.2 TITLE AND RISK OF LOSS. ............................................................................................................................ 24
4.3 FORECASTING ............................................................................................................................................... 24
4.4 CURTAILMENT. ............................................................................................................................................. 24
4.5 SELLER EQUIPMENT REQUIRED FOR CURTAILMENT INSTRUCTION COMMUNICATIONS. ........................ 24
4.6 REDUCTION IN DELIVERY OBLIGATION. ..................................................................................................... 25
4.7 RESERVED. .................................................................................................................................................... 25
4.8 WREGIS. ..................................................................................................................................................... 25 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. ................................................................................................... 27
6.3 SHARED FACILITIES. .................................................................................................................................... 28 ARTICLE 7 METERING ........................................................................................................................ 28
7.1 METERING. ................................................................................................................................................... 28
7.2 METER VERIFICATION. ................................................................................................................................ 28 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ....................................................................... 28
8.1 INVOICING. .................................................................................................................................................... 28
8.2 PAYMENT. ..................................................................................................................................................... 29
8.3 BOOKS AND RECORDS. ................................................................................................................................. 29
8.4 BILLING DISPUTES. ....................................................................................................................................... 29
8.5 NETTING OF PAYMENTS. .............................................................................................................................. 29 ATTACHMENT 1
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8.6 SELLER’S DEVELOPMENT SECURITY. .......................................................................................................... 30
8.7 SELLER’S PERFORMANCE SECURITY. .......................................................................................................... 30 ARTICLE 9 NOTICES ............................................................................................................. ............... 30
9.1 ADDRESSES FOR THE DELIVERY OF NOTICES ............................................................................................. 30
9.2 ACCEPTABLE MEANS OF DELIVERING NOTICE. ......................................................................................... 30 ARTICLE 10 FORCE MAJEURE .......................................................................................................... 31
10.1 DEFINITION. ............................................................................................................................................. 31
10.2 NO LIABILITY IF A FORCE MAJEURE EVENT OCCURS .......................................................................... 32
10.3 NOTICE. .................................................................................................................................................... 32
10.4 TERMINATION FOLLOWING FORCE MAJEURE EVENT .......................................................................... 32 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ................................................................ 32
11.1 EVENTS OF DEFAULT ............................................................................................................................... 32
11.2 REMEDIES; DECLARATION OF EARLY TERMINATION DATE. ................................................................ 33
11.3 RIGHTS AND REMEDIES ARE CUMULATIVE ........................................................................................... 34 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES. ................ 34
12.1 NO CONSEQUENTIAL DAMAGES. ............................................................................................................. 34
12.2 WAIVER AND EXCLUSION OF OTHER DAMAGES. ................................................................................... 34 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY .................................... 35
13.1 SELLER’S REPRESENTATIONS AND WARRANTIES. ................................................................................. 35
13.2 BUYER’S REPRESENTATIONS AND WARRANTIES ................................................................................... 36
13.3 GENERAL COVENANTS ............................................................................................................................ 37 ARTICLE 14 ASSIGNMENT ......................................................................................................... ........ 38
14.1 GENERAL PROHIBITION ON ASSIGNMENTS ............................................................................................ 38
14.2 COLLATERAL ASSIGNMENT .................................................................................................................... 38 ARTICLE 15 DISPUTE RESOLUTION ............................................................................................... 38
15.1 VENUE. ..................................................................................................................................................... 38
15.2 DISPUTE RESOLUTION. ............................................................................................................................ 38 ARTICLE 16 INDEMNIFICATION ...................................................................................................... 39
16.1 INDEMNITY. .............................................................................................................................................. 39
16.2 NOTICE OF CLAIM. .................................................................................................................................. 39
16.3 FAILURE TO PROVIDE NOTICE. ............................................................................................................... 39
16.4 DEFENSE OF CLAIMS. .............................................................................................................................. 39
16.5 SUBROGATION OF RIGHTS. ...................................................................................................................... 40
16.6 RIGHTS AND REMEDIES ARE CUMULATIVE. ........................................................................................... 40 ARTICLE 17 INSURANCE ..................................................................................................................... 40
17.1 INSURANCE ............................................................................................................................................... 40 ARTICLE 18 CONFIDENTIAL INFORMATION ............................................................................... 41
18.1 DEFINITION OF CONFIDENTIAL INFORMATION. ..................................................................................... 41
18.2 DUTY TO MAINTAIN CONFIDENTIALITY. ................................................................................................ 41
18.3 IRREPARABLE INJURY; REMEDIES. ......................................................................................................... 42
18.4 DISCLOSURE TO LENDERS, ETC.. ............................................................................................................ 42 ARTICLE 19 MISCELLANEOUS ......................................................................................................... 42
19.1 ENTIRE AGREEMENT; INTEGRATION; EXHIBITS. ................................................................................... 42 ATTACHMENT 1
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19.2 AMENDMENTS. ......................................................................................................................................... 42
19.3 NO WAIVER. ............................................................................................................................................. 42
19.4 NO AGENCY, PARTNERSHIP, JOINT VENTURE OR LEASE. ..................................................................... 42
19.5 SEVERABILITY. ........................................................................................................................................ 43
19.6 MOBILE-SIERRA. ..................................................................................................................................... 43
19.7 COUNTERPARTS; ELECTRONIC SIGNATURES. ........................................................................................ 43
19.8 BINDING EFFECT. ..................................................................................................................................... 43
19.9 FURTHER ASSURANCES ..................................................................... ERROR! BOOKMARK NOT DEFINED.
Exhibits:
Exhibit A Facility Description
Exhibit B Scheduling Coordinator Responsibilities
Exhibit C Notices
ATTACHMENT 1
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1 RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“ Agreement”) is entered into as of _______________, 2023 (the “Effective Date”), between Buyer and 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 m eanings ascribed to them in Article 1 to this Agreement.
RECITALS
WHEREAS, Seller intends to develop, design, permit, constr uct, own, and operate 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 consider ation, 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 3.11. “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 “Per mitted Transferee”, “cont rol” (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. “Ancillary Services” means all ancillary se rvices, products and other attributes, if any, associated with the Contract Capacity of the Facility.
“Available Generating Capacity” means the capacity of the Facility, expressed in whole MWs, that is mechanically available to generate Energy.
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2 “Available Hours” means the total hours during the measuremen t period less the hours the Facility was unable to gene rate energy due to a Force Maje ure Event, System Emergency, Buyer Default, Curtailment Periods.
“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. “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. Pacific Standard Time (PST) for the Party sending a Notice, or payment, or performing a specified action. “Buyer” means the City of Burbank, a California municipal corporation, through its Burbank Water and Power Department.
“Buyer Default” means a failure by Buyer (or its ag ents) 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 4.8(a). “CAISO” means the California Independent Sy stem Operator Corporation, or any successor entity performing similar functions.
“CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services suff icient for monitoring, recording and reporting, in real time, all Delivered Energy delivered to the Delivery Point.
“CAISO Grid ” has the same meaning as “CAISO C ontrolled Grid” as defined in the CAISO Tariff.
“CAISO Operating Instructions” means the “operating instructions” defined in Section
37.2.1.1 of the CAISO Tariff, as required.
“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 a ttached 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), a nd 100 (2018) as codified in, inter alia , California Public ATTACHMENT 1
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3 Utilities Code Sections 399.11 through 399.31 and California Publ ic Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means any current or future define d characteristic, certificate, tag, credit, or accounting construct associated with the amount of power associated with the Contract Capacity that the Facility can generate and deli ver to the Delivery Point at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits.
“CEC” means the California Energy Commissi on, or any successor agency performing similar statutory functions.
“CEC Certification and Verification” means that the CEC has certified (or, with respect to periods before the date that is one hundr ed eighty (180) days following the Commercial Operation Date, that the CEC has pre-certified, as such date may be extended pursuant to Section 3.8) that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Delivered Energy delivered to the Delivery Point qualifies as generation from an Eligible Renewable Energy Resource. “CEC Precertification” means that the CEC has issued a precertification for the Facility indicating that the planned operations of the Facility would comply with applicable CEC requirements for CEC Certification and Verification.
“Certificate of Commercial Operation ” shall mean a certificat e delivered by Seller, substantially in the form of Exhibit D to this Agreement. “Claim” has the meaning set forth in Section 16.2.
“ Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer; (ii) Seller has notified Buyer in writing that is has provided the required documentation to Buyer and met the conditions for achieving Commerc ial Operation; and (iii) Buye r has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. “Commercial Operation Date ” or “COD ” shall be the date on which Commercial Operation is achieved.
“Commercial Operation Delay Damages” or “COD Delay Damages” shall be calculated as follows. Estimated Energy Volume (using river flow data at the Facility where 10 cfs = 1 MWh) x (Market Price for PCC1 Renewable Energy Credit less Renewable Energy Credit Price). If the result of this calculation is negative, the COD Delay Damages shall be zero. “Compliance Actions” has the meaning set forth in Section 3.11. “Compliance Expenditure Cap” has the meaning set forth in Section 3.11. “Confidential Information” has the meaning set forth in Section 18.1.
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4 “Contract Capacity” means the amount of generating capacity of the Facility, as measured in MW at the Delivery Point, set forth on the Cove r Sheet, as the same may be adjusted pursuant to Section 2.6.
“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) cons ecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and ex penses 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 Agreemen t, which is incorporated into this Agreement.
“CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
“Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Instruction, that such Party is required to curtail deliveries of Delivered Energy for the following reasons: (i) any System Emergency, or (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, 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 including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnor mal voltage conditions, or (ii) any warning, forecast or anticipation of conditi ons or situations that jeopardize the Participating Transmission Owner’s electric system integrity or the integr ity 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 Pa rticipating Transmission Owner’s transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Delivered Energy to the Delivery Point; or
(d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Participating Transmission Owner or distribution operator.
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5 “Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation from the Facility pursua nt 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. “Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Quarter” has the meaning set forth in Section 4.8(e). “Delivered Energy” means for each hour, all of the as-available electric energy generated by the Facility, which is net of Electrical Losses and Station Use and delivered to the Delivery Point, as measured by the Facility Meter, and pursuant to the Scheduling Requirements. “Delivery Point” 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 Commercial Operation Date, unle ss terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Security” means (i) cash or (ii) a Letter of Credit in the amount set forth on the Cover Sheet.
“Early Termination Date” has the meaning set forth in Section 11.2(a). “Effective Date” has the meaning set forth on the Preamble. “Electrical Losses” means all transmission or transformation losses or gains between the Facility and the Delivery Point, including losses or gains associated with delivery of Delivered Energy to the Delivery Point.
“Eligible Renewable Energy Resource ” has the meaning set forth in California Public Utilities Code Section 399.16(b)(1) and Section 3203(a)(1) of the California Code of Regulations (Title 20).
“Energy” means electrical energy generated by the Facility. “Event of Default” has the meaning set forth in Section 11.1. “Expected Commercial Operation Date ” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Commercial Operation. “Expected Energy” means the quantity of Energy attributable to the Contract Capacity that Seller expects to be able to deliver from the Facility during each Contract Year in the quantity specified on the Cover Sheet.
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6 “Facility” means the hydro generating facilities described on the Cover Sheet and in Exhibit A, located at the Site and including mech anical equipment and associated facilities and equipment required to deliver Energy to the Delivery Point. “Facility Cost” means, measured as of the appli cable measurement date, the aggregate amount of all costs and expenses incurred by Se ller for the development, design, engineering, equipping, procuring, constructing, installing, starting up and testing the Facility, including (a) the cost of all labor, servi ces, materials, supplies, equipment, tools, transportation, supervision, storage, training, demolition, site preparation, civil works, and remediation in connection therewith, (b) the cost of acquiring the leasehold interest and any other property, easement or other interest in the Site, (c) the cost of acquiring th e Permits for the Facility and (d) the cost of establishing a spare parts inventory for the Facilit y, if any, net of revenue from Startup and Test Energy.
“Facility Debt” means, measured as of the appli cable measurement date, any payment obligations of Seller in connection with borrowed money, including (a) principal of and premium on indebtedness, (b) fees, charges, expenses and penalties related to indebtedness, (c) amounts due upon acceleration or in connection with prepayment or restructuring of inde btedness, (d) swap or interest rate hedging breakage costs, and (e) any cl aims or interest due with respect to any of the foregoing.
“Facility Meter” means the CAISO Approved Meter that will measure all electric energy generated by the Facility, including Delivered Energy. Without limiting Seller’s obligation to deliver Delivered Energy to the Delivery Point, the Facility Meter may be located at the low voltage or the high voltage side of the main step-up transformer, and Delivered Energy will be subject to adjustment in accordance with CA ISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use. “FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Energy or making Delivered Energy available at the Delivery Point and that is not the result of a Force Majeure Event. “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Governmental Authority” means any federal, state, pr ovincial, local or municipal government, any political subdivision thereof or any other government al, 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 environmenta l attributes, credits, benefits, emissions reductions, offsets, a nd 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 (i ncluding PCC1 RECs), as well as: (1) any ATTACHMENT 1
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7 avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do no t include (i) any energy, capacity, reliability or other power attributes from th e Facility, (ii) Renewable Ener gy Incentives, (iii) production or investment tax credits associated with the construction or operat ion of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iv) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (v) em ission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating or air quality permits. “Green Tag Reporting Rights ” means the right of a purchas er 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 ce rtification program or emissions trading program, including pursuant to the WREGIS Operating Rules. “Guaranteed Commercial Operation Date” means the date that is eighteen (18) months from the Expected Commercial Operation Date, as specified on the Cover Sheet, subject to Force Majeure Events as set forth in Article 10.
“Guaranteed Capacity” has the meaning set forth on the Cover Sheet. “Imbalance Energy” means the amount of Instructed En ergy or Uninstructed Energy in MWh, in any given Settlement Pe riod or Settlement Interval, by which the amount of Delivered Energy deviates from the amount of Scheduled Energy.
“Indemnifiable Loss(es)” has the meaning set forth in Section 16.1. “Initial Synchronization” means the initial delivery of Delivered Energy to the Delivery Point.
“Installed Capacity” means the actual generating capacity of the Facility, as measured in MW(AC) at the Delivery Point, that achieve s Commercial Operation, adjusted for ambient conditions on the date of the pe rformance test, and as evidenced by a certificate submitted by an independent engineer to Buyer.
“ Instructed Energy” has the meaning set forth in the CAISO Tariff. “Interconnection Agreement ” means the interconnection agreement entered into by Seller pursuant to which the Facility will be in terconnected with the Transmission System, and ATTACHMENT 1
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8 pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. “Interconnection Facilities” means the interconnection fac ilities, control and protective devices and metering facili ties required to connect the Facility with the Tr ansmission System in accordance with the Interconnection Agreement.
“Interest Rate” has the meaning set forth in Section 8.2. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code of 1986.
“Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interp retation thereof, promulgated or issued by a Governmental Authority.
“Lender” means, collectively, any Person (i) providing se nior or subordinated construction, interim, back leverage or long-te rm debt, equity or tax equity financing or refinancing for or in connection with the devel opment, construction, pu rchase, installation or operation of the Facility, whether that financing or re financing takes the fo rm of private debt (including back-leverage de bt), equity (including tax equity), public debt or any other form (including financing or re financing provided to a me mber or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller or its Affiliates, and any trustee or agent or similar representative acting on their behalf, (ii) providing Interest Rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of 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 issued by a Qualified Institution.
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer.
“Milestones” means the development activities for significant permitting, interconnection, financing and construction milestones set forth on the Cover Sheet. “MW” means megawatts in alternating current, unl ess expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Net Qualifying Capacity” or “NQC” has the meaning set forth in the CAISO Tariff.
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9 “Network Upgrades” has the meaning set forth in the CAISO Tariff. “New Resource Implementation Process” means the process identified in the CAISO Tariff and the most current version of the “N ew Resource Implementati on Guide” published by the CAISO that is applicable to the Facility.
“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 ha nd delivery, United States mail, overnight courie r service, or electronic messaging (e-mail).
“Notice of Claim” has the meaning set forth in Section 16.2. “Operating Procedures” has the meaning set forth in the CAISO Tariff. “Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and a ssociated facilities or ha s 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 Guarantee” has the meaning set forth in Section 3.12. “Performance Guarantee Damages” shall have the meaning set forth in Section 3.12. “Performance Security” means (i) cash or (ii) a Letter of Credit or (iii) a Surety Bond in the amount set forth on the Cover Sheet.
“Permit” means all applications, perm its, licenses, franchises, certificates, concessions, consents, authorizations, certifications, self-certifications, approvals, registrations, orders, filings, entitlements and similar requirements of whatever kind and however described which are required to be filed, submitted, obtained or maintained by any Person with respect to the development, siting, design, acquisition, construction, equipping, financing, ownership, possession, shakedown, start-up, testing, operati on or maintenance of the Facility, the production, sale and delivery of Energy to Buyer, as applicable, Capacity Attributes and Green Attributes or any other transactions or matter contemplated by this Agreement (incl uding those pertaining to electrical, building, zoning, environmental and occupational safety and health requirements) “Permitted Encumbrances” means (a) any lien approved by Buyer in a writing separate from this Agreement which expressly identifies the lien as a Permitted Encumbrance, (b) liens for Taxes not yet due or for Taxes being contested in good faith by appropriate proceedings, so long as such proceedings do not involve a risk of the sale, forfeiture, loss or restriction on the use of the Facility or any part thereof, provided that such proceedings end by the expiration of the Delivery Term, (c) suppliers’, vendors’, mechanics’, workman’s, repairman’s, employees’ or other like liens arising in the ordinary course of business for work or service performed or materials furnished ATTACHMENT 1
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10 in connection with the Facility for amounts the payment of which is either not yet delinquent or is being contested in good faith by appropriate proceedings so long as such proceedings do not involve a risk of the sale , forfeiture, loss or restriction on use of the Facility or any part thereof, provided that such proceedings end by expiration of the Delivery Term, and (d) easements, rights of way, use rights, exceptions, encroachments, reservations, restrictions, conditions or limitations, so long as they have been identi fied by Seller to Buyer in writing prior to the Effective Date and do not interfere with or impair the operation of the Facility as contemplated by this Agreement. “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 twenty million dollars ($20,000,000); (b) is not in litigation or in dispute with the Buyer;
(c) is not in violation of any applicable Laws. and
(d) at least two (2) years of experience in the ownership and operations of power generation facilities similar to the Facility with a combined generating capacity of at least twenty (20) MW, or has retained a third-party with such experience to operate the Generating Facility. “Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general part nership, joint venture, associat ion, joint-stock company, trust, incorporated organization, institution, public be nefit corporation, uninc orporated organization, government entity or other entity.
“PNode” has the meaning set forth in the CAISO Tariff.
“Planned Outage” has the meaning set forth in Section 4.6(a). “Portfolio Content Category” means PCC1, PCC2 or PCC3, as applicable. “Portfolio Content Category 1 ” or “ PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligib le Renewable Energy Resource consisting of the portfolio content set fort h 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.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report that (a) describes the progress toward meeting the Project Development Milestones set forth on the Cover Sheet; (b) identifies any missed Project Development Milestones, including the cause of the delay; and (c) provides any updates or information known to Seller about its progress toward Commercial Operation. “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 ATTACHMENT 1
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11 during the relevant time period with respect to grid-interconnected, utility-scale hydro generating facilities in the Western United States, or (b) any of the practices, methods and acts which, in the exercise of reasonable judgement in light of the facts known at the time the decision was made, could have been expected to a ccomplish the desired result at a r easonable cost consistent with good business practices, reliabilit y, safety and expedition. Prudent Operating Practice is not intended to be limited to the opt imum practice, method or act to the exclusi on of all others, but rather to acceptable practices, methods or act s generally accepted in the independent power producer industry with respect to grid-interconn ected, utility-scale generating facilities in the Western United States. Prudent Operating Practice includes compliance with applicable Laws, applicable reliability criteria, and the criteria , rules and standards prom ulgated 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” means the production tax credit established pursuant to Section 45 of the United States Internal Revenue Code of 1986.
“ Qualified Institution” means the domestic office of a commercial bank or trust company organized under the laws of the United States that has at least ten billion dollars ($10,000,000) of assets.
“Qualifying Capacity” or “QC” has the meaning set forth in the CAISO Tariff. “Real-Time Forecast ” means any Notice of any change to the Available Generating Capacity or hourly Expected Energy delivered by or on behalf of Seller pursuant to Section 4.3 “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Real-Time Price” means the Resource-Specific Settlement Interval LMP as defined in the CAISO Tariff. If there is more than one applicable Real-Time Price for the same period of time, Real-Time Price shall mean the price associated with the smallest time interval. “Remedial Action Plan” has the meaning in Section 2.4.
“Renewable Energy Credit” or “REC” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to t ime or as further defined or supplemented by Law.
“Renewable Energy Credit Price ” means, for purposes of calculating liquidated damages, including COD Delay Damages or Perfo rmance Guarantee Damages, an amount equal to $22.50 per estimated MWh.
“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); (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 ince ntive relating in any way to the Facility that is not a Green Attribute.
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12 “Resource Adequacy Benefits” means the rights and privileg es attached to the Facility that satisfy any entity’s resource adequacy oblig ations, as those obligations are set forth in any Resource Adequacy Rulings and includes any local , zonal or otherwise locational attributes associated with the Facility, in addition to flex attributes, if applicable. “Resource Adequacy Rulings ” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031 06- 07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024 and any other existing or subsequent ruling or decision, or any other resource adequacy Law, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Delivery Term.
“Schedule” has the meaning set forth in the CAISO Tariff, and “Scheduled ” has a corollary meaning.
“Scheduled Energy” means the Delivered Energy that clears under the applicable CAISO market based on the final Day-Ahead Schedule, FMM Schedule, or Five-Minute Schedule (as defined in the CAISO Tariff), or any other financially binding Sc hedule, market instruction or dispatch for the Facility for a given period of time implemented in ac cordance 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 Sc heduling Coordinator,” of the CAISO Tariff, as amended from time to time.
“Scheduling Requirements” means all of the processes and requirements required for the Facility to schedule energy in accordance with Article 3, Exhibit B, the CAISO Tariff and Prudent Operating Practice.
“Self-Schedule” has the meaning set forth in the CAISO Tariff, and “Self-Scheduled” has a corollary meaning.
“Seller’s Owner” means Ted S. Sorenson, The Gayle A. Sorenson Irrevocable Legacy Trust, and The Daniel K. and Gail L. Batdorf 2010 Trust.
“Seller Group ” means (a) any natural persons that constitute immediate relatives of Seller’s Owner, whether by blood or marriage, and (b) any trusts instituted in which the beneficiary of such trust is set forth in sub-clause (a) above.
“Uninstructed Energy” 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 4.8(a). “Settlement Interval” has the meaning set forth in the CAISO Tariff.
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13 “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 (w hich is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Site” means the real property on wh ich the Facility is located, as further described in Exhibit A.
“Site Control” means that Seller (or, prior to the Delivery Term, its Affiliate), with respect to the entirety of the Site: (a) owns the Site; (b) is the lessee to a lease of the Site with the owner of the Site; and/or (c) is the holder of an easement, right-of-way grant, or similar instrument with respect to the Site, in each case, for the entire Delivery Term. “Special Purpose Entity ” means a limited liability compan y which at all times on and after the Effective Date meets the following conditions:
(a) shall not (i) (A) engage in any consolid ation or merger with or into any other business entity, (B) acquire by purchase or ot herwise all or substantially all of the business or assets of or beneficial interest in any other entity, or (C) transfer, lease or sell, in one transaction or a ny combination of transactions, all or substantially all of its properties or assets, except in each such case to the extent permitted herein; provided that for avoidance of doubt this clause (i) shall not limit the ability of the Special Purpose Entity to interpose or re move a special purpose entity that has no assets or business into or out of the chain of ownership; or (ii) modify, amend or waive any provisions of its organizational documents in a manner inconsistent with its status as a Special Purpose Entity;
(b) was organized solely for the purpose of acquiring, developing, owning, holding, selling, financing, leasing, transferring, exchanging, managing and operating the Facility, selling Energy, Green Attributes and Cap acity Attributes from the Facility, entering into offtake agreements such as this Agreement with Buyer, and transacting lawful business that is incide nt, necessary and appropriate to accomplish the foregoing;
(c) has not been, is not, and will not be engaged in any business unrelated to the acquisition, development, construction, financing, ownership, management or operation of the Facility or a larger project of which the Facility is a component part (including the sale of Ener gy, Green Attributes and Capa city Attributes from such Facility or larger project);
(d) other than excess real property righ ts, has not had, and does not have and will not have, any assets other than those related to the Facility or to any larger project of which the Facility is a component part;
(e) has held itself out as and will hold itself out to the public as a legal entity separate and distinct from any other entity and has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity; ATTACHMENT 1
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14 (f) has maintained and will maintain its accounts, organizational books and records, resolutions and agreements separate from any other Person and has filed and will file its own Tax returns (except to the extent treated as a “disregarded entity” for Tax purposes and not required to file Tax returns under applicable law); (g) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(h) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its members or Af filiates, except (i) on terms that are intrinsically fair, commercia lly reasonable or no less favo rable to it than would be obtained in a comparable arm’s length transaction with an unrelated third party; (ii) in connection with the development or constructi on of the Facility; or (iii) as otherwise set forth and permitted in this Agreement;
(i) does not and will not have any obligation to indemnify, and has not indemnified and will not indemnify any Pers on other than (i) its officers, managers, or members (and the Affiliates of such me mbers and their officers, managers, or members), as the case may be, as require d by its organizational documents or in connection with activities related to the performance of this Agreement, or (ii) entities requiring indemnification in the normal cour se of business in connection with the acquisition, development, construction, financing, ownership, management and operation of the Facility, incl uding, without limitation, inde mnification of Affiliates pursuant to contracts permitted in this Agreement;
(j) has considered and shall consider th e interests of its creditors, if any, in connection with all limited liability company actions, if at any time it perceives that it is not or believes that it may not be (i) solvent or (ii) able to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due;
(k) does not and will not have any of its obligations guaranteed by any Affiliate and does not and will not hold itself out as being responsible for the debt obligations of any other Person, except (i) any parent guarantees that may be issued by an upstream Affiliate for any Facility Debt, hedge for the Facility, tax equity financing or construction and/or supply agreements necessary for the acquisition, development, construction, financing, ownership, management or operation of the Facility, (ii) in accordance with the Interconnection Agreement, or (iii) as otherwise permitted in this Agreement;
(l) has (i) complied and will comply with the terms and provisions contained in its organizational documents, and (ii) has done or caused to be done and will do all things necessary to preserve its existence;
(m) has not and will not commingle its funds or assets with those of any Person and has not participated and will not partic ipate in any joint bank accounts with any other Person;
(n) will hold its assets in its own name and will conduct all business in its own name;
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15 (o) will pay its own liabilities and expenses, including the salaries of any employees it might have, out of its own funds and assets and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, except with respect to expenses paid by the tax equity part nership owning Seller, including asset management, accounting and legal, rent, operation and maintenance fees, property and sales Taxes and filing fees;
(p) has not assumed or guaranteed or become obligated for, and will not assume or guarantee or become oblig ated for, the debts of any other Person (other than an Affiliate of Seller in the interest of the financing of the Facility) and has not held out and will not hold out its credit as being available to satisfy the obligations of any other Person (other than an Affiliate of Seller in the interest of the financing of the Facility), except in accordance with the Interconnection Agreement; (q) does not have and will not acquire obligations or securities of its members or any Affiliate except as permitted under (h), (k) and (p) of this definition; (r) now maintains and uses, and will maintain and use, sepa rate invoice bearing its name; such invoices utilized by it or utilized to collect its funds or pay its expenses have borne and shall bear its own name and have not borne and shall not bear the name of any other entity unless such entity is clearly designated as being its agent; (s) except in connection with the develo pment or construction, or financing of the development or construction of the Faci lity or any larger project of which the Facility is a component part, has not ple dged and will not pledge its assets for the benefit of any other Person, other than Permitted Encumbrances; (t) is and intends to remain solvent and has paid and intends to continue to pay its debts and liabilities (i ncluding, as applicable, sh ared personnel and overhead expenses) from its assets as the same shall have or become due, and has maintained, is maintaining and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a bus iness of its size and character and in light of its contemplated business operations; and
(u) will have no indebtedness other than (i ) Facility Debt, (ii) debt, if any, in an amount for construction and permanent opera tions of the Facility, as applicable, considered in light of the types and amounts of other sources of capital used for the Facility that is within re asonable and prudent market nor ms given the size, type and commercial attributes of the Facility and poses no material risk to its liquidity or its ability to perform its ob ligations under this Agreement and (iii) such other indebtedness that are expressly permitted pursuant to this Agreement. “Station Use” means:
(a) The Energy produced by the Facility that is used within the Facility to power the lights, motors, pumps, control systems and other el ectrical loads that are necessary for operation of the Facility, whether or not lo cated at the powerhouse or elsewhere as part of the system that comprises the Facility, even if the same is netted through more than one meter; and ATTACHMENT 1
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16 (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. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, dutie s and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted durin g 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 st ate, local or federal production tax credit, depreciation benefit, tax de duction or investment tax credit specific to the production of renewable energy or investments in renewable energy facilities. “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section Error! Reference source not found..
“Test Energy” means Delivered Energy delivered (a ) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Delivered Energy to the CAISO and (ii) the first date that the PTO info rms Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date.
“Test Energy Rate” has the meaning set forth in Section 3.6. “Total Facility Capacity” has the meaning set forth in Exhibit A. “Transmission Provider ” means any entity or entities transmitting or transporting the Delivered Energy on behalf of Seller or Buyer to or from the Delivery Point. “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 Point.
“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 4.8(e).
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17 “WREGIS Certificates” has the same meaning as “Cer tificate” 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 those operating rules and requirements adopted by WREGIS as of May 1, 2018, 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 th e 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, para graph, 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 th is Agreement includ ing any amendment or supplement to, or replacement, novation or modifi cation of this Agreement, but disregarding any amendment, 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 rest rict 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, orde rs 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 math ematical formula or other precise description of a concept or a term shall preva il over words providing a mo re 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;
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18 (k) words, phrases or expressions not othe rwise 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 accep ted 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 re presented 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; Delivery Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclu sion of the Delivery Term, subject to any early termination provisions set forth herein (“ Contract Term”); provided, however, that subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section (c). (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 responsib ilities of the Parties ar ising prior to termina tion. The confidentiality obligations of the Parties under Article 18 and all indemnity and audit right s shall remain in full force and effect for one (1) year following the termination of this Agreement. (c) The Delivery Term shall commence upon the satisfaction of all of the conditions to Commercial Operation set forth in Section 2.2 below.
2.2 Commercial Operation. Commercial Operation shall not commence until Seller completes each of the following conditions:
(a) Seller has met all Interconnection Agr eement requirements and is capable of delivering energy from the Facility to the CAISO;
(b) Commissioning of equipment has been completed in accordance with engineering requirements;
(c) At least 90% of Guaranteed Capacity has been installed and commissioned; (d) The Facility has successfully comple ted all testing required by Prudent Operating Practices or any requirement of Law to operate the Facility; (e) All applicable permits and government approvals required for the operation of the Facility have been obtained;
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19 (f) Seller has provided confirmation from an Independent Engineer that the Facility has achieved Commercial Operation;
(g) Seller has obtained Site Control to operate the Facility; (h) Seller has provided notice of Expect ed Commercial Operation Date to Buyer in writing at least fifteen (15) days in advance of such date and has provided a Certificate of Commercial Operation together with the requ ired documentation to B uyer for satisfaction of the foregoing conditions and Buyer is able to secure a Scheduling Coordinator for the project and with Buyer’s consent, which shall not be unreasonably withheld (the “Early Commercial Operation Date”); and
(i) Buyer has accepted that Commercial Operation Date has been achieved by countersigning the Certificate of Commercial Operation.
2.3 Development; Construction; Progress Reports . Prior to the Expected Commercial Operation Date Seller shall provide to Buyer regular Progr ess Reports (at least monthly) and agrees to regularly scheduled meetings between representatives of Buyer and Seller to review such reports and discuss Seller’s construction progress. Seller shall also provide Buyer with any reasonable requested do cumentation (subject to confiden tiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Buyer. Following such Expected Commercial Operation Date if the Facility has not achieved Commercial Operation, Seller shall provide biweek ly Progress Reports to Buyer and agrees to regularly scheduled meetings between representatives of Buyer and Seller to review such reports and discuss Seller’s construction progress. Fo r the avoidance of doubt, as between Seller and Buyer, Seller is solely responsib le for the design and constructi on of the Facility, including the location of the Site, obtaining a ll permits and approvals to build the Facility, the Facility layout, and the selection and procurement of the equipment comprising the Facility.
2.4 Early Commercial Operation. Should Seller meet the conditions precedent in Section 2.2 prior to the Expected Commercial Operation Date, Buyer agrees that the Commercial Operation Date may occur prior to such Expected Commercial Operation date upon the occurrence of the following: (a) Seller shall give fifteen (1 5) days’ notice; (b) Buyer shall have secured the services of a Scheduling Coordinator; and (c) Buyer consents to such early Commercial Operation, which consent shall not be unreasonably withheld.
2.5 Guaranteed Commercial Operation Date. Subject to Force Majeure Events, if Seller has not achieved Commercial Operation by the Guaranteed Commercial Operation Date, Buyer may choose to either (a) terminate this Agreement without costs or damages to either Party; or (b) elect to continue to the Agreement and be entitled to COD Delay Damages for a period of up to twelve (12) months, after which Seller shall be entitled to terminate the Agreement without additional costs or damages other than the COD De lay Damages owned to date. If Seller fails to timely pay any COD Damages, Buyer may draw upon the Development Security to satisfy Seller’s payment obligation thereof. The payment of C OD Delay Damages shall be considered to be liquated damages and shall be the sole and exclusive remedy under this Section 2.5.
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20 2.6 Installed Capacity. If, at Commercial Operation, the Installed Capacity is greater than the Contract Capacity, the Contract Capacity shall be amended to equal the Installed Capacity and other applicable portions of this Agreement shall be adjusted accordingly.
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 the Product produced by or associated with the Facility at the Contract Price, and Seller shall supply and deliver to Buyer all the Product produced by or associ ated with the Facility (net of applicable losses). 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 re lieve Buyer of any obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product, or any component thereof, purchased hereunder from th e Facility after the Delivery Point for resale into the market or to any third party, and retain and receive any and all related revenues. Buyer has no obligation to purchase from Seller any Pr oduct for which the associated Delivered Energy is not or cannot be delivered to the 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, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all Green Attributes attributable to the Delivered Energy generated by the Facility.
3.3 Compensation. During the Delivery Term, Bu yer shall pay Seller the Contract Price for each MWh of delivered Product.
3.4 Imbalance Energy . Buyer and Seller recognize th at in any given Settlement Period there may be Imbalance Energy. To the extent there is any Imbalance Energy, any payments or charges related to such Imbalance Energy, shall be for the account of Buyer, provided that Seller shall reimburse Buyer for any Imbalance Energy charges due to Seller’s failure to perform its obligations under the CAISO Tariff or this Agr eement or day-ahead and real-time forecasts of Delivered Energy that deviates by more than 50% absent any Force Majeure event, Forced Outage, System Emergency, or Curtailment Order. Notwithstanding the foregoing, Seller shall have no obligations under the CAISO Tariff or under this Agreement related to being the Scheduling Coordinator or related to Buyer’s role as Buyer or re-seller of the Product hereunder.
3.5 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer ac knowledges that any Renewable Energy Incentives belong to Seller. If any Rene wable 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 Se ller, 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.
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21 3.6 Test Energy. No less than five (5) days prior to the first day on which Test Energy is expected to be available from the Facility, Seller shall notify Buyer of the availability of the Test Energy. If and to the extent the Facility generates Test Energy, Se ller shall sell and Buyer shall purchase from Seller all Test Energy and any asso ciated Products on an as-available basis for up to ninety (90) days from the first delivery of Test Energy. As compensation for such Test Energy and associated Product, Buyer shall pay Seller the following: (a) if the Test Energy can be scheduled into the CAISO Day-Ah ead Market and generates PCC1 REC, Buyer shall pay Seller the Contract Price; or (b) if the Test Ener gy cannot be scheduled into the CAISO Day-Ahead Market or does not generate PCC1 REC, Buyer shall pay Seller the lesser of (i) the Contract Price or (ii) the Locational Marginal Price (LMP) for the Delivery Point (the “ Test Energy Rate”) in the applicable CAISO’s market in which the Scheduled Energy was delivered. For the avoidance of doubt, the conditions precedent in Section (c) are not applicable to the Parties’ obligations under this Section 3.6.
3.7 Capacity Attributes. Buyer acknowledges that the Facility does not currently have Full Capacity Deliverability Status. Seller agrees to request a restoration of Full Capacity Deliverability Status from the CAISO annually until it is achieved or the term of the contract ends.
Should there be any Network Upgrades associated with obtaining Full Capacity Deliverability Status, the Parties shall meet and confer. If the Parties do not come to an agreement about incurring costs for any such Network Upgrades, the Parties ag ree that this Agreement shall remain in full force and effect with respect to the remaining Product generated and sold hereunder. (a) Throughout the Delivery Term, Seller grants, pledges, assigns and otherwise commits to Buyer all of the Capacity A ttributes from the Facility associated with the Contract Capacity, if any.
(b) For the duration of the Delivery Term, Seller shall take all reasonable actions, including complying with all applicable registration and reporting requirements, and execute all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement, if any.
3.8 CEC Certification and Verification. Subject to Section 3.11, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certifica tion and Verification.
Subject to Section 3.11, within one hundred eighty (180) days after the Commercial Operation Date, which deadline will be extended on a day-for-day basis if there is a delay in CEC Certification and Verification and that delay is caused by any reason other than an act or
omission of Seller, Seller shall obtain and maintain throughout the remainder of the Delivery Term the final CEC Certification and Verification. Seller shall ensure that the Product qualifies as PCC1 throughout the Delivery Term. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s applicati on for CEC Certification and Verification for the Facility.
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22 3.9 Reserved.
3.10 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 succ essors, represents and warrants that throughout the Delivery Term of this Agreement that the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource as su ch term is defined in Public Utilities Code Section 399.16(b)(1) of the California Public Utilities Code and Section 3203(a)(1) and in Section 3204(d)(2)(A)-(C) of the California Code of Regulations (Title 20). 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 commercially reasonable efforts to comply with such change in law. The term “commercially reasonable efforts” as used in this Section 3.10 means efforts consistent with and subject to Section 3.11. (c) 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.
(d) This Agreement and the rights and du ties of the Parties hereunder shall be governed by and construed, enforced and performed in a ccordance with the la ws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement.
3.11 Compliance Expenditure Cap. If a change in Laws occu rring 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, mainta ining, conveying or effectuating Buyer’s use of (as applicable) any Product, then the Part ies agree that the maximum aggregate amount of out-of-pocket costs and expenses (“ Compliance Costs”) Seller shall be re quired to bear during the Delivery Term to comply with all of such obligations shall be capped at twenty thousand dollars ($20,000.00) per MW of Contract Capacity (“Compliance Expenditure Cap”). Seller’s internal administrative costs associated with obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable) any Product are excluded from the Compliance Expenditure Cap.
Any actions required for Seller to comply with its obligations set forth in the first paragraph above, the Compliance Costs of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.”
If Seller reasonably anticipates the need to in cur 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.
Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions describe d in the Notice) and shall, within such time, ATTACHMENT 1
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23 either (1) request a meeting with Seller to discuss an allocation of Complia nce Costs above the Compliance Expenditure Cap; (2) agree to reimburse Seller for all or some portion of the Compliance Costs that exceed the Compliance Expenditure Cap, as applicable (such Buyer-agreed upon costs, the “Buyer Accepted Compliance Costs”); (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller; or (3) choose to terminate the Agreement without costs or damages, other than to pay for outstanding invoices and for Product which it has received as of such date . If Buyer does not respond to a Notice given by Seller under this Section 3.11 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Notice, and Seller shall have no further obligation to take, and no liability for any failure to take, the Compliance Actions that are the subject of the Notice for the remainder of the Term.
If Buyer agrees to reimburse Seller for the Buye r Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Buyer Accepted Compliance Costs and any compliance costs for which Seller agrees to pay for (the “ Seller Accepted Compliance Costs”), as agreed upon by the Parties, and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions, not to exceed the Buyer A ccepted Compliance Costs, within thirty (30) days from the time that Buyer receives an invoice and documentation of such costs from Seller.
3.12 Performance Guarantee.
(a) Guarantee. Subject to water flow conditions a nd Force Majeure Events, in each case, outside of the control of Seller, Seller shall deliver a minimum of fifty percent (50%) of the Expected Energy (the “Performance Guarantee”), as measured with respect to a twenty-four (24) month period, determined on a rolling basis (the “Performance Guarantee Period”). (b) Performance Guarantee Damages. Should Seller fail to achieve the Performance Guarantee, Seller shall pay Perfo rmance Guarantee Damages to B uyer, calculated as follows:
(50% of the Expected Energy for the Performance Guarantee Period less the Actual Deliveries during the Performance Guarantee Period) x (Mar ket Price for PCC1 Renewable Energy Credits less the Renewable Energy Credit Price). If the result of this calculation is negative, the Performance Guarantee Damages shall be zero. If Seller fails to timely pay any Performance Guarantee Damages, Buyer may draw upon the Perform ance Security to satisfy Seller’s payment obligation thereof. The payment of Performance Guarantee Damages shall be considered to be liquated damages and shall be the sole and exclusive remedy under this Section 3.12.
ARTICLE 4
OBLIGATIONS AND DELIVERIES
4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the Commercial Operation Date and through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or char ges imposed in connecti on with the delivery of ATTACHMENT 1
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24 Delivered Energy to the Delivery Point, including without limitation, Station Use, Electrical Losses, and any operation and maintenance ch arges imposed on Seller by the Transmission Provider directly relating to the Facility’s operations. The Delivered Energy will be scheduled to the CAISO by Buyer (or Buyer’s designated Scheduling Coordinator) in accordance with Exhibit B.
(b) Green Attributes. All Green Attribut es associated with the Delivered Energy during the Delivery Term are exclusively dedicated to and will be conveyed to Buyer.
Seller represents and warrants that Seller holds the rights to all Green Attributes associated with the Delivered Energy, and Seller ag rees to convey and hereby conve ys 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 Delivered Energy, shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. (b) Green Attributes. Title to and risk of loss relate d to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.
4.3 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. Seller shall provide to Buyer non-binding annual, m onthly, day-ahead, and real-time forecasts of Delivered Energy within a timeline that allows Buyer or Buyer’s agent the ability to meet CAISO market and scheduling deadlines. Seller’s plant operator visits the Facility daily. Seller or Seller’s agent shall report any material changes in output, if any, to Buyer and/or Buyer’s Scheduling Coordinator upon the daily visit of Seller’s plant operator from the previous day’s output, if any. Seller shall also report any emergency or forced outages within a reasonable time following Seller’s receipt of notification of such outages. Buyer and Seller agree that as of the Effective Date, telephone communication, text messaging and email communication between (a) Buyer and Buyer’s Scheduling Coordinator and (b) Seller and Seller’s Emergency Contact or Back-up Emergency Contact, with such Emerge ncy Contact or Back-Up Emergency Contact having remote shut-down capability, shall be sufficient for compliance with this Section 4.3.
4.4 Curtailment. Seller agrees to reduce the am ount of Delivered Energy produced by the Facility, by the amount and for the period set forth in any Curtailment Order.
4.5 Seller Equipment Required for Curta ilment Instruction Communications .
Seller shall acquire, install, and maintain su ch facilities, communica tions links and other equipment, and implement such protocols and practices, as necessary to respond and follow instructions, including email, text messages, or other electroni c signal conveying real time and intra-day instructions, to allow Seller to operate the Facility in accordance with this Agreement or ATTACHMENT 1
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25 a Governmental Authority, includ ing to implement a Curtailment Order in accordance with the then-current methodology used to transmit such instructions as it may change fro m time to time.
If at any time during the Delivery Term Seller ’s facilities, communicat ions links or other equipment, protocols or practices are not in complian ce with then-current methodologies, Seller shall take the steps necessary to become compliant as soon as reasonably possible.
4.6 Reduction in Delivery Obligation . For the avoidance of doubt, and in no way limiting Section 3.1:
(a) Facility Maintenance. Seller shall pr ovide notice to Buyer prior to each Contract Year of Seller’s anticipated timeframes for scheduled maintenance for the Facility. Buyer may provide comments no later than ten (10) Bu siness Days after receiving any such schedule, and Seller will in good faith take into account any such comments. Seller also agrees to use good faith efforts to plan such scheduled maintenance during times when the Facility has either low or no water to generate Energy. Seller shall be permitted to reduce deliveries of Product during any such period of scheduled maintenance on the Facility. (each of the foregoing, a “ Planned Outage”).
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) System Emergencies and other Interc onnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff.
(d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product to the extent of any Force Majeure Event.
(e) Buyer Default. Seller shall be permit ted to reduce deliveries of Product during any period in which there is Buyer Default.
(f) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.
4.7 Reserved.
4.8 WREGIS. Seller shall, subject to Section 3.11, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Ce rtificates associated with all Renewable Energy Credits corresponding to all Delivered Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefi t. Seller shall transfer the Renewable Energy Credits to Buye r. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and tr ansfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Se ller shall be deemed to have satisfied the warranty in Section 4.8(g), provided that Seller fulfills its obligations under Sections 4.8(a) through 4.8(g) below. In addition:
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26 (a) Prior to the Commercial Operation 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 Delive ry Term. Seller shall transfer the WREGIS Certificates using automatic cer tificate transfers to the exte nt available under the WREGIS Operating Rules from Seller’s WR EGIS 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 Ce rtificate issuance and transfer fees, and transfer ring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause automatic 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 Delivered Energy generated, any fractional MWh amounts (i.e., kWh) will be carri ed forward until sufficient generation is accumulated for the creation of a WREGIS Certificate. (c) Seller shall, at its sole expense, ensu re that the WREGIS Certificates for a given calendar month correspond with the Delivered Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to an up to ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, B uyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2. (e) A “ WREGIS Certificate Deficit ” means, at the end of each calendar quarter, any deficit or shortfall in WREGIS Certif icates (the “WREGIS Certificate Deficit”) delivered to Buyer on a 3-month basis as compared to the Delivered Energy for the same 3-month basis, in each case, calculated 90 da ys after the end of such quarter (“ Deficient Quarter”). If a WREGIS Certificate Deficit exists, the product of the WREGIS Certificate Deficit multiplied by the Renewable Energy Cr edit Price (the “ Shortfall Amount”) shall be deducted from the total payment due to Seller in the next applicable invoice cycle pursuant to Article 8. Notwithstanding the foregoing, the parties may mutually agree in writing to compare the aggregate Delivered Energy with the aggregate WREGIS Certificates on an annual basi s for purposes of determining any WREGIS Certificate Deficit and the calculation of any Shor tfall Amount. Seller shall use commercially reasonable efforts to ensure that WREGIS Certificate Deficit is remedied by correcting any error or omission to ensure that the missing WREGIS Certif icates are delivered, and upon such correction and delivery of such missing WREGIS Certificates, Seller may invoice Buyer for such WREGIS Certificates.
(f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent w ith this Section 4.8 after the Effective Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause ATTACHMENT 1
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27 and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Delivered Energy in the same calendar month. (g) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.
ARTICLE 5
TAXES
5.1 Allocation of Taxes and Charges . Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the time and place contemplated under this Agreement. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the time and pla ce contemplated under this Agreement (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees), if any.
If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Produc t 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, a nd hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.
5.2 Cooperation. Each Party shall use reasonable ef forts 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
OPERATION AND MAINTENANCE OF THE FACILITY
6.1 Operation and Maintenance of the Facility . Seller shall comply with Law and Prudent Operating Practice relati ng to the operation and maintena nce of the Facility and the generation and sale of Product. Seller shall ma intain Site Control throughout the construction period and the Delivery Term. To the extent required by law, Seller shall obtain and maintain any and all Permits and approvals for the ownership and operation of the Facility, and shall provide copies of the same to the Buyer upon request.
6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repa ir 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 ATTACHMENT 1
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28 prevent such damage or injury and shall give Notice to Buyer’s emergency contact identified on Exhibit C of such condition. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility, or suspending the supply of Delivered Energy to Buyer.
6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interc onnection Facilities, and Seller’s rights and obligations under the Interconnection Agreement, may be subject to cert ain shared facilities or co-tenancy agreements to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder and (ii) provide for separate metering of the Facility.
ARTICLE 7
METERING
7.1 Metering. Seller shall measure the amount of Delivered Energy using the Facility Meter. All meters will be operated pursuan t to applicable CAISO-approved calculation methodologies and maintained at Seller’s cost. Subject to meeting any applicable CAISO requirements, the Facility Meter shall be progra mmed to adjust for Electrical Losses and Station Use, even if separately metered and netted, from the Facility to the Delivery Point in a manner consistent with CAISO requirements. 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 Fa cility and all inspection, testing and calibration data and reports. Seller shall cooperate to allow Buyer to retrieve the meter reads from the CAISO Operational Meter Analysis and Reporting (OMAR) web 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, Selle r shall test the meter. The tests shall be conducted by independent third par ties qualified to conduct such te sts. 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 is inaccurate, it shall be promptly repaired or replaced.
ARTICLE 8
INVOICING AND PAYMENT; CREDIT
8.1 Invoicing. Seller shall make good faith efforts to deliver an invoice to Buyer for Product within ten (10) Business Days after the end of the prior monthly billing period during the Delivery Term, or as soon as reasonably practicable after receiving settlement data from Buyer or Buyer’s Scheduling Coordinator. Each invoice shall reflect records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preced ing month, including the amount of Delivered Energy produced by the Facility as read by the Facility Meter, the calculation of Delivered Energy and the Contr act Price applicable to such Pr oduct. Invoices shall be in a format reasonably specified by Bu yer, covering the services provided in the preceding month ATTACHMENT 1
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29 determined in accordance with the applicable provi sions of this Agreement. Seller shall provide Buyer with reasonable access (including, in real time, to the maximum extent reasonably possible) to any records, forecast data and other information, including invoices or settlement data that Seller has from the CAISO not already reasonably available to Buyer or Buyer’s Scheduling Coordinator, all as may be necessary from time to time for Buyer to verify the accuracy of all invoices.
8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each m onthly invoice. Buyer shall pay undisputed invoice amounts within twenty-one (21) days after receipt of the invoice, or the end of the prior monthly billing period, whichever is later. If su ch 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. Su ch late payment charge shall be calculated based on the Federal Funds Effective Rate, as set forth in the weekly statistical release designated as H.15(159), or any successor 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 pa yment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon ten (10) Business Days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement.
8.4 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an in voice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undis puted portion of the invoice shall be required to be made when due. Any invoice di spute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjust ment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon re solution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving the overpayment. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.4 within twelve (12) months after the invoice is rendered or subsequently ad justed, except to the extent any misinformation was from a third party not affiliated with any Party and such thir d party corrects its information after the twelve- month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.
8.5 Netting of Payments . The Parties hereby agree that they shall discharge mutual ATTACHMENT 1
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30 debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any COD Delay Damages and Performance Guarantee Damages, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.
8.6 Seller’s Development Security. To secure its obligati ons under this Agreement, Seller shall deliver the Development Security to B uyer within thirty (30) days after the Effective Date. Seller shall maintain the Development Security in full force and effect. Upon the earlier of (i) Seller’s delivery of the Performance Security, or (ii) sixty (60) days after termination of this Agreement, Buyer shall return the Development Security to Se ller, less the amounts drawn in accordance with this Agreement. If the Development Security is a Letter of Credit and the issuer of such Letter of Credit (i) indicat es its intent not to renew such Le tter of Credit and such Letter of Credit expires prior to the Co mmercial Operation Date, or (ii) fails to honor B uyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have ten (10) Business Days to either post cash or deliver a subs titute Letter of Credit that otherwise meets the requirements set forth in the definition of Development Security.
8.7 Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buye r on or before the Commercial Operation 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 obliga tions of the Seller then due and payable under this Agreement, including compensation for pena lties, Performance Guarantee 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 su ch Letter of Credit (i) indi cates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (ii) fails to honor Buyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have te n (10) Business Days to either post cash or 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 form of Development Security or Performance Security permitted by Buyer for another permitted form of Development Security or Performance Security permitted by Buyer, as applicable.
ARTICLE 9
NOTICES
9.1 Addresses for the Delivery of Notices Except as provided in Exhibit B, any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the a ddress set forth on Exhibit C 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 ATTACHMENT 1
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31 follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the e nvelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail or other electronic means) and if concurrently with the transmittal of such electronic communi cation the sending Party provides a copy of such electronic Notice by hand delivery or express courier, at the time indicated by the time stamp upon delivery; or (d) if delivered in person, upon r eceipt by the receiving Part y. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be consid ered 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 and due diligence, cannot be avoided by or prevented and is 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. (b) Without limiting the general ity of the foregoing, so long as the following events, despite the exercise of reasona ble efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indi rect) 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 floodi ng, lightning, hurricanes, tornadoes, drought, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; landslide; mudslide; unexpected equipment breakdown not caused by lack of maintenance or user error; actions or inactions of third-parties over which a Party has no control, including without limitation governmental or quasi-governmental entities unre lated to a Party or interconnecting utilities; sabotage; terrorism; earthquake; or other catacl ysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other la bor difficulties caused or suffered by a Party or any third party except as set forth below. (c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions th at render a Party’s performanc e of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including Buyer’s ability to buy Energy at a lower price, or Seller’s ability to sell Energy at a higher price, than the Contract Price);; (ii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above that disables physical or electronic facilities necessary to transfer funds to the payee Pa rty; or (iii) a Curtailment Period, except to the extent such Curtailment Period is caused by a Force Majeure Event.
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32 10.2 No Liability If a Force Majeure Event Occurs . Neither Seller nor Buyer shall be liable to the other Party to the extent it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Ev ent. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove, avoided or overcome such inability. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed, avoided or overcome. Neither Party shall be considered in breach or de fault 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 ob ligation of a Party to make any payments due hereunder; provided, that if Seller is unable to deliver, or Buyer is unable to receive, Energy due to a Force Majeure Event, Buyer shall have no obligation to pay Seller for Energy not delivered or received by reason thereof.
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, but in no event any later than seven (7) days of the occurrence thereof, and (b) notify, as promptly as possible, the other Party in writing of the cessation or termination of such Force Ma jeure 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 Fo rce Majeure Event has occurred unless the delay in giving Notice materially prejudices the other Party.
10.4 Termination Following Force Majeure Event . If a Force Majeure Event has occurred after the Commercial Operation 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 consec utive eighteen (18) month period, then the non- claiming Party may terminate this Agreement upon written Notice to the other Party with respect to the Facility experiencing the Force Majeure Ev ent. 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 Sell er any Development Security or 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 no t remedied within five (5) Business Days after Notice thereof;
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33 (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 De faulting 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 perf orm 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 such failure is no t 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) failure to provide in kind cr edit support replacement upon the expiration of Performance Security or Development Security hereunder or if the issuer is no longer a Qualified Institution;
(vi) such Party assigns this Agreemen t or any of its rights hereunder other than in compliance with Section 14.2, as applicable; or (vii) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its asse ts to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviv ing 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 Defaulti ng Party, the occurrence of any of the following:
(i) if at any time during the Delivery Term, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility; or
(ii) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.6 or 8.7 after Notice and expiration of the cure periods set forth therein.
11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have o ccurred and be continuing, the other Party (“Non- Defaulting Party”) shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no la ter than twenty (20) days afte r such Notice is deemed to be received, as an early termination date of this Agreement (“ Early Termination Date”) that ATTACHMENT 1
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34 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 any COD Delay Damages or Performance Guarantee Damages, as applicable; (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; or
(e) to exercise any other right or remedy available at law or in equity. provided, that payment by the Defaulting Party of the COD Delay Damages or Performance Guarantee Damages, as applicable, shall consti tute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for any Terminated Transaction and the Event of Default related thereto.
11.3 Rights And Remedies Are Cumulative. Except where an express and exclusive remedy or measure of liquidated damages is provided, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.
ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.
12.1 No Consequential Damages . EXCEPT TO THE EXTENT PART OF AN
EXPRESS REMEDY OR MEASURE OF DAMAGE S HEREIN, OR PART OF AN ARTICLE 16 INDEMNITY CLAIM, OR INCLUDED IN A LIQUIDATED DAMAGES CALCULATION,
OR ARISING FROM FRAUD OR INTENTI ONAL MISREPRESENTATION, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER OR ITS INDEMNIFIED PERSONS FOR ANY
SPECIAL, PUNITIVE, EXEMPLARY, INDIRE CT, 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, WITHOU T LIMITATION, THOS E 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 AGREEM ENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
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35 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 REQUIRE D TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING U NDER SECTIONS 2.5 AND 3.12, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, THAT OTHERWISE OBTA INING AN ADEQUATE REMEDY IS
INCONVENIENT, AND THAT THE LI QUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTIC IPATED 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 AGR EE 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 th e 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 discharg ing and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not ha ve a material adverse effect on Seller’s perform ance under this Agreement. The execution, delivery and performan ce 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 a ny trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller.
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36 (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 conf lict with or constitute a breach of or a default under any Law presently in effect having applicab ility 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 agreem ent or other evidence of indebte dness or any othe r agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly execute d and delivered by Seller. This Agreement is a legal, valid and binding obligati on of Seller enforceable in accordance with its terms, except as limited by laws of general app licability limiting the en forcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Seller is and has always been a Special Purpose Entity. (f) Seller has all required Permits to own and operate the Facility. (g) Seller lawfully owns the Facility and that the Site constitutes all of the necessary real estate property to operate and ma intain the Facility and to comply with its obligations under this Agreement. Seller has Site Control for the term of this Agreement. (h) The Facility is located in the State of California.
13.2 Buyer’s Representations and Warranties . As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a validly existing municipal co rporation that is duly organized, validly existing and in good standi ng under the laws of the State of California and the applicable rules, regulations and orders of the Califor nia Energy Commission, and is qualified to conduct business as set forth herein. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hol d their positions in good standing in accordance with all applicable Law.
(b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharg ing 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 conf lict with or constitute a breach of or a default under any Law presently in effect having applicability to Buye r, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan ag reement or other evidence of ATTACHMENT 1
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37 indebtedness or any other agreem ent or instrument to which Buye r is a party or by which any of its property is bound.
(d) This Agreement has been duly execute d and delivered by Buyer. This Agreement is a legal, valid and binding obligati on of Buyer enforceable in accordance with its terms, except as limited by laws of general app licability limiting the en forcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court (provided that such court is located within a venue permitted in law and under the Agreement), (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment; provided, however that nothing in this Agreement shall waive the obligations or rights set forth in the California Tort Claims Act (Government Code Section 810 et seq.)
(f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.
13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(g) It shall continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of its forma tion 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;
(h) 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
(i) 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.
13.4 Additional Covenants of Seller . Seller covenants th at commencing on the Effective Date and continuing throughout the Delivery Term:
(a) Seller shall continue to lawfully own the Facility and that the Site constitutes all of the necessary real estate prop erty to operate and maintain the Facility and to comply with its obligations under this Agreement. Seller shall maintain Site Control for the term of this Agreement;
(b) Seller shall continue to maintain all Permits necessary to operate the Facility and shall comply with all applicable Laws in the performance of this Agreement, including the operation and maintenance of the Facility and the sale of the Product.
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38 (c) Seller is and will be a Special Purpose Entity at all times during the Delivery Term
(d) Seller shall not, at any time, incur or permit Facility Debt in an amount that, in the aggregate, exceeds seventy percent (70%) of the Facility Cost (e) Seller shall not cause or permit the st ock or equity ownership interest in Seller to be pledged or assigned as collateral or otherwise be transferred to another entity without the prior written approval of Buyer, which approval shall not be unreasonably withheld; provided that Seller’s Owner may transfer the stock or equity ownership in Seller to the Seller Group without the prior written consent of Buyer.
ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments. Neither Party may voluntarily assign this Agreement or its rights or obliga tions under this Agreement, without the prior written consent of the other Party, such consent not to be unreas onably 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 non-assigning Party’s reasonable costs associated with the preparation, review, executio n and delivery of docume nts in connection with any assignment of this Agreement, including without limitation reasonable attorneys’ fees. Except to the extent expressly set forth in Section 14.2, neither Party will have the obligation to provide any consent or enter into any agreement that mate rially and adversely affects any of such Party’s rights, benefits, risks or obligations under this Agreement.
14.2 Collateral Assignment. 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, and in connection therewith, may execute, file and/or record such documents as are required by Lender or Lenders without the prior written consent of Buyer. Notwithstanding the foregoing, Seller shall notify Buyer of such collateral assignment and provide any docu mentation thereof as reasonably requested by Buyer.
ARTICLE 15
DISPUTE RESOLUTION
15.1 Venue. The Parties agree that any suit, ac tion 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 Tulare County, California.
15.2 Dispute Resolution . In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to reso lve 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 mediation prior to seeking any and all remedies available to it at Law in or equity. The Parties will cooperate in selecting a ATTACHMENT 1
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39 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 Indemnity. Each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party, its directors, officers, members, managers, agents, attorneys, employees and representatives (each an “Indemnified Party” and collectively, the “Indemnified Group”) from and against all third party claims, de mands, 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 or omissions of the Indemnifying Party, its Affiliates, its directors, officers, employees or agents (collectively, “Indemnifiable Losses”).
Nothing in this Section shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages to the extent resulting from its own negligence, intentional acts or om issions, 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 Noti ce as provided in this Section 16.3 will not affect the rights or obligations of any Party hereunder except and only to the extent that, as a result of such failure, any Party which was entitled to receive such No tice 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 increas ed amount of any In demnifiable 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 ATTACHMENT 1
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40 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 No tice from Indemnified Party th at Indemnified 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 hereunder; provided, however, that Indemnifyi ng Party may accept any settlement without the consent of Indemnified Party if such settlement provides a full re lease 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 reas onable 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 whic h the indemnity payment relates; provided that until Indemnified Party recovers full payment of its Indemnifiable Loss, any and all claims of Indemnifying Party against a ny 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 Thir d 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 Insurance. Seller shall secure and continuously carry insurance as follows:
(a) All insurance required by this Agreement shall be placed with an insurance company with an A.M. Best Company rating of A- or better. (b) If the insurance coverage required is cancelled, materially changed or lapses for any reason, the Seller will immediately notify Buyer in writing. This notice will advise Buyer ATTACHMENT 1
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41 of the specific reason for cancellation, material change or lapse and the steps being taken to comply with these Insurance Requirements.
(c) Prior to (a) the Commercial Operation Date and (b) subsequently within ten (10) days of the annual anniversary of the Commercial Operation Date, the Seller shall provide a Certificate of Insurance in the name of Buyer and list Buyer as an additional insured and shall provide a Waiver of Subrogation Endorsement.
(d) The Certificate of Insurance shall evidence the appropriate insurance coverage of Comprehensive General Liability Insurance for both bodily injury and property damage with limits equal to one million dolla rs ($1,000,000), each occurrence, combined single limit. The deductible for such insurance shall be consistent with current Insurance Industry Utility practices for similar property.
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 Selle r 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 confidentia l or proprietary restriction) at the time of delivery or that becomes available to the recipi ent from a source not subj ect to any restriction against disclosing such information to the reci pient; 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 la w, order, regulation, ru ling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator request or rule) to disc lose any Confidential Information of the disclosing Party (the “Disclosing Party”), Receiving Party shall provide Disclo sing 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 within the applicable disclosure deadline, the Receiving Party is not required to defend against such request and shall be permitte d 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 information and documentation provided in connection with this Agreement may be subject to the Californi a Public Records Act (Government Code Section ATTACHMENT 1
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42 6250 et seq.).
18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasona ble in order to protect Disclo sing 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 cau se irreparable injury to Disclosing Party and that, in addition to any other reme dies that may be available, in law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctiv e 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 its 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.
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 between Seller and Buyer with respect to the s ubject matter hereof an d supersedes all prior agreements relating to the subject matter hereof , which are of no further force or effect. The Exhibits attached hereto are in tegral 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 sh all be considered for all purposes as prepared through the joint efforts of the Pa rties 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 ex ecuted 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 defaul t by the other Party shall not be construed as a waiver of any other default.
19.4 No Agency, Partnership, Joint Venture or Lease. Under this Agreement, Seller and Buyer intend to act as ener gy seller and energy purchaser, re spectively, and do not intend to be treated as, and shall not act as, partners in, co -venturers in or lessor/lessee with respect to the Facility or any business related to the Facility and each Party (including its agents and employees) ATTACHMENT 1
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43 shall act in an independent capacity and not as officers or employees or agents of the other Party.
This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement) or, to the extent set fort h 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 unenforceab le 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 provis ion 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 provisi ons 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.
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. Th e Parties may rely on el ectronic, facsimile or scanned signatures as originals. Delivery of an executed signatu re page of this Agreement by electronic transmission (including facsimile and email transmission of a PDF image) shall be the same as delivery of an original executed signature page.
19.8 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
19.9 Enterprise Fund. The Parties acknowledge that the obligations and liabilities of Buyer under this Agreement shall be payable solely from Buyer’s electric revenue fund.
19.10 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.
ATTACHMENT 1
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44 [Signatures on following page]
ATTACHMENT 1
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IN WITNESS WHEREOF, the Parties have caused th is Agreement to be duly executed as of the Effective Date.
TULE HYDRO LLC
By:
Name:
Title:
BURBANK WATER AND POWER, a
California municipal corporation
By:
Name:
Title:
Ted S. Sorenson
Manager
ATTACHMENT 1
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Exhibit A - 1
EXHIBIT A
FACILITY DESCRIPTION
Site Name: The Tule River hydro project located in Tulare County, California with a generating capacity of approximately 6.4 MW
County: Tulare
Type of Facility: hydro
Operating Characteristics of Facility:
Contract Capacity: 6.4 MW (net, at the Delivery Point), as the same may be adjusted pursuant to Section 2.6.
Total Facility Capacity: 6.4 MW (net, at the Delivery Point) Delivery Point: Tule River (SPRGVL_2_TULE) on the CAISO grid, or at such other point as the CAISO shall designate following Seller’s completion of the New Re source Implementation Process with CAISO, or at such other point as may be mutually agreed upon by the Parties.
Point of Interconnection: Tule River (SPRGVL_2_TULE) on the CAISO grid, or at such other point as the CAISO shall designate followi ng Seller’s completion of the New Resource Implementation Process with CAISO.
Participating Transmission Owner: SCE
ATTACHMENT 1
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EXHIBIT B
SCHEDULING COORDINATOR RESPONSIBILITIES
(a) Buyer as Scheduling Coordinator for the Facility. Buyer shall be the Scheduling Coordinator or designa te a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of Test Energy and the Product at the Delivery Point, and bid the De livered Energy into the Day-Ahead Market and the Real-Time Market, consistent with Prudent Op erating Practice. Each Party shall perform all scheduling and transmission activities in comp liance 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 sche duling or settlement issues as they may arise, and to work together in good faith to resolve them in a manner c onsistent with the terms of the Agreement. The Delivered Energy will be sc heduled with the CAISO by Buyer (or Buyer’s designated Scheduling Coordinator) for Buyer’s account. (b) CAISO Costs and Revenues. As Scheduling Coordinator for the Facility, Buyer shall be responsible for all CAISO costs and all obligations under the CAISO Tariff related to the Scheduling Coordinator or its role as Buyer or re-seller of the Product hereunder, including without limitation, all Imba lance Energy charges, and other charges, and shall be entitled to all CAISO revenues, including without limitation, credits, Imbalance Energy payments, and revenues associated with CAISO dispatches , bid cost recovery, Inter-SC Trade credits, or other credits in respect of the Product scheduled or delivered from the Facility. Notwithstanding the foregoing, Seller shall assume all li ability for and be responsible for any and all costs or charges, including all CAISO penalties (i) resulting from any failu re by Seller to perform under this Agreement or abide by the CAISO Tariff, (ii) incurred by Buye r of Seller’s failure to provide notices in accordance with the outage not ification requirements set forth in this Agreement, or (iii) to the extent arising as a result of Seller’s failure to comply with a timely Curtailment Order if such failure results in incremental costs to Buyer.
(c) CAISO Settlements. Buyer (as the Faci lity’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility ATTACHMENT 1
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Exhibit C - 1
EXHIBIT C
NOTICES
Tule Hydro LLC, a Utah limited liability
company
(“Seller”)
Burbank Water and Power, a California
municipal corporation(“Buyer”)
All Notices:
Tule Hydro LLC
Street: 711 Turtle Point Drive
City: Ivins, UT 84738
Attn: Miriah Elliott
Phone: 801-891-4147
Email: [email protected]
All Notices:
Burbank Water and Power
320 N. Lake Ave.
Burbank, CA 91502
Attn: General Manager
Phone: 818-238-3550
Email: [email protected]
Invoices:
Attn: Dana Peck
Phone: 208-604-3338
E-mail: dana
@tsorenson.net
Invoices:
Attn:
Phone: 818-238-3652
E-mail: BWPFinanceInvoices
@burbankca.gov
Scheduling:
Attn: TBD
Phone:
E-mail:
Scheduling:
Attn: Prescheduling
Phone: 818-238-3671
E-mail: [email protected]
(preschedule)
Realtime: TBD
Attn:
Phone:
E-mail:
Emergency Contact:
Attn: Ted S. Sorenson
Phone: 208-589-6908
E-mail: [email protected]
Back-Up Emergency Contact:
TBD
Emergency Contact:
Attn: Anthony D’Aquila
Phone: 818-688-2519
E-mail: [email protected]
Back-Up Emergency Contact:
TBD
ATTACHMENT 1
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Exhibit D
CERTIFICATE OF COMMERCIAL OPERATION
In accordance with the terms of that certain Renewable Power Pu rchase Agreement dated as of _______________, 2023 (“ Agreement”) by and between City of Burbank (“ Buyer”) and Tule Hydro LLC (“Seller”), in order to determine achievement of Commercial Operation of the Facility, Seller shall demonstrate to Buyer that the Facili ty is operating and able to produce and deliver Energy to Buyer in accordance with the terms of the Agreement by delivery of a Certificate of Commercial Operation (the “Certificate”), signed by an authorized re presentative of Seller as to all of the items below, regarding the Facility’s ability to deliver Energy and confirming the items set forth therein. Any term used but not defined in the Certificate shall have the meaning set forth in the Agreement. The Certif icate shall be submitted by Se ller, along with reasonable documentation as may be requested by Buyer, and certify as to the following:
(a) Seller has met all Interconnection Agr eement requirements and is capable of delivering energy from the Facility to the CAISO;
(b) Commissioning of equipment has been completed in accordance with engineering requirements;
(c) At least 90% of Guaranteed Capacity has been installed and commissioned; (d) The Facility has successfully comple ted all testing required by Prudent Operating Practices or any requirement of Law to operate the Facility; (e) All applicable permits and government approvals required for the operation of the Facility have been obtained;
(f) Seller has provided confirmation from an Independent Engineer that the Facility has achieved Commercial Operation, and such conformation is attached as Appendix 1 to this Certificate; and
(g) Seller has obtained Site Control to operate the Facility.
Signed,
Tule Hydro LLC, a Utah limited liability company (“Seller”) Name:
Title: Authorized Officer
Date:
ATTACHMENT 1
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Exhibit P - 1
Appendix 1 to Certificate of Commercial Operation
Confirmation from Independent Engineer of Commercial Operation ATTACHMENT 1
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